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ELCPartially AllowedE.L.C. Case No. 198 of 2010· [2018] KEELC 931 (KLR)

David Aradi v Fredrick Nakhulo Wamalwa [2018] KEELC 931 (KLR)

Environment and Land Court
25 September 2018
KBK. BOR
470 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi land buyer who couldn't prove he paid the balance lost his claim but recovered his Kshs. 1 million deposit with interest.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant, an advocate of the High Court of Kenya, over an agreement of 2 May 1998 for the purchase of one acre to be excised from the Defendant's land, L.R. No. 1160/89 in Nairobi, for a consideration of Kshs. 2.7 million. The Defendant acted as advocate for both parties. The Plaintiff paid a deposit of Kshs. 1 million on execution, with the balance payable on completion of subdivision and delivery of deed plans and an executed transfer. The Plaintiff claimed he paid the balance of Kshs. 1.7 million plus Kshs. 300,000/= to facilitate subdivision, but the Defendant subdivided the land and transferred it to third parties. He sought an order for transfer of an acre or, alternatively, Kshs. 18 million being the land's value at filing. The Defendant admitted receipt of the deposit but alleged the Plaintiff failed to pay the balance despite a 30-day completion notice dated 2/12/1998, which the Plaintiff denied receiving. Both parties testified and produced the sale agreement. The court found the Plaintiff had produced no evidence of payment of the balance or the additional Kshs. 300,000/= allegedly paid to the Defendant's wife, and held that the Plaintiff failed to prove his case on a balance of probabilities. The court ordered the Defendant to refund the Kshs. 1 million deposit with interest at court rates from the date of filing suit, with each party bearing its own costs. Judgment was delivered at Nairobi on 25 September 2018 by K. Bor, Judge.

Key legal issues

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01

Proof of payment of the balance of the purchase price

Holding

The Plaintiff failed to prove that he paid the balance of Kshs. 1.7 million and the additional Kshs. 300,000/= claimed to have been paid to the Defendant's wife

Reasoning

Although both parties produced copies of the sale agreement and the Plaintiff alleged payment of the balance to the Defendant's wife, no evidence of those payments was produced. Mere allegation without documentary or other proof could not discharge the plaintiff's burden on a balance of probabilities.

p. 2
02

Refund of deposit where sale does not complete

Holding

The deposit of Kshs. 1 million paid on execution of the agreement was refundable with interest, the sale having not completed

Reasoning

Having found that the Plaintiff did not prove payment of the balance and that the land was subdivided and transferred to other persons, the court directed a refund of the deposit with interest at court rates from the date of filing suit as the just outcome between the parties.

p. 2

Legal principles established

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  • A plaintiff in a civil suit bears the burden of proving his case on a balance of probabilities, including proof of payment of the purchase price.

Court orders

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  1. 1.The Defendant is directed to refund the Plaintiff the sum of Kshs. 1 million paid as a deposit
  2. 2.Interest on the refunded deposit at court rates from the date of filing suit
  3. 3.Each party to bear its own costs
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court Act); not expressly stated in the judgment

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, "David Aradi v Fredrick Nakhulo Wamalwa [2018] KEELC 931 (KLR)", Case Analysis (2018). E.L.C. Case No. 198 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/931/eng@2018-09-25

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