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ELCPartially AllowedELC. Case No. 143 of 2015· [2018] KEELC 385 (KLR)

Jane Waruguru Ngugi v Summerland Valley Developers Company Limited & another [2018] KEELC 385 (KLR)

Environment and Land Court
28 November 2018
KBK. Bor
685 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered a developer to refund a plot buyer's full purchase price with interest and Kshs 1 million damages, but cut her award for waiting four years to sue.

What this practically means

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Executive summary

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The Plaintiff entered into an agreement dated 1/3/2010 with the 1st Defendant for the purchase of four plots (90, 91, 99 and 100) to be excised from Kajiado/Kisaju/3041 at Kitengela for Kshs. 1,280,000/-. She paid the purchase price in full, evidenced by receipts and a cheque, but the 1st Defendant failed to deliver the completion documents within the six-month completion period. The Plaintiff sued seeking specific performance, or alternatively a refund of Kshs. 1,280,000/- with interest, damages for breach and costs. The Defendants were served but filed no defence. The Plaintiff relied on the Gatobu M'Ibuutu Karathu decision and the principle that a defaulting party pays the innocent party the purchase price as agreed damages. She also sought general damages of Kshs. 5,320,000/- based on a 2016 valuation of Kshs. 6,600,000/- and valuation costs of Kshs. 23,000/-. The court found the claim proved on a balance of probabilities. It declined the higher general damages because the Plaintiff waited over four years before filing suit, and refused the valuation costs as they were not pleaded in the plaint. It awarded general damages of Kshs. 1 million for the four plots, granted prayer (b) - refund of Kshs. 1,280,000/- with interest at court rates from the date of filing suit until payment in full - and awarded costs of the suit to the Plaintiff.

Key legal issues

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01

Whether the Plaintiff proved the claim for breach of the sale agreement against the Defendants

Holding

The Plaintiff proved her claim on a balance of probabilities; the Defendants, though served, filed no defence and the court granted the refund of the purchase price with interest, plus general damages of Kshs. 1 million

Reasoning

The Plaintiff produced the executed sale agreement, receipts for payments of Kshs. 350,000/- and 750,000/- and a cheque of Kshs. 180,000/-, plus demand letters. The agreement provided for refund of the purchase price upon the 1st Defendant's default in delivering completion documents within six months. The Defendants did not contest the claim. The court, however, declined the higher general damages sought because of the four-year delay in filing suit and declined valuation costs as unpleaded.

p. 1

Legal principles established

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  • Any party in default of a sale agreement shall pay the innocent party the purchase price as agreed damages for breach of the contract

Court orders

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  1. 1.General damages of Kshs. 1 million awarded to the Plaintiff for the four plots
  2. 2.Prayer (b) of the Plaint granted - refund of the purchase price of Kshs. 1,280,000/- with interest at court rates from the date of filing suit until payment in full
  3. 3.Costs of the suit awarded to the Plaintiff

Authorities

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Cases cited (2)

  • Gatobu M'Ibuutu Karathu v Christopher Mureithi Kubai
    [2014] eKLR
  • M'nyeri M'rimunya v Humbrey Twinga and Hillary Kaara
    HCCC No. 113/2011
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (sale of plots to be excised from Kajiado/Kisaju/3041)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jane Waruguru Ngugi v Summerland Valley Developers Company Limited & another [2018] KEELC 385 (KLR)", Case Analysis (2018). ELC. Case No. 143 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/385/eng@2018-11-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.