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ELCPartially AllowedELC. Case No. 262 of 2013 (Fast Track)· [2018] KEELC 949 (KLR)

James Nyangweso Nyagol v Lilian Anyango Okello(Sued as the Legal Representative of Chillion Rakwach, deceased, Pursuant to the court order of 31st May 2016) [2018] KEELC 949 (KLR)

Environment and Land Court
31 October 2018
SKS. M. Kibunja
1,250 words in judgment
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The bottom line

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A Kenyan buyer who paid in full and occupied the land won it, but lost legal costs because they never asked for them in their court filings.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant over Kisumu/Nyalunya/2366, seeking a permanent injunction against trespass, a declaration that he was the bona fide title holder, general damages for trespass, mesne profits, costs and interest, alleging the Defendant had placed a caution and encroached on the land. The Defendant countered that the Plaintiff had sold him part of the land in 2008, on which he had stayed for four years, and sought an order compelling subdivision and transfer of a 60 feet by 200 feet rectangular plot. Following the death of the original Defendant on 13th August 2015, Lilian Anyango Okello was enjoined as his legal representative under a Limited Grant Ad Litem. At the hearing on 18th October 2017 the Plaintiff did not attend, and his suit was dismissed with costs for non-attendance, leaving the Defendant to prosecute the counterclaim, which was supported by the testimony of DW1 and DW2 and remained unrebutted. The court noted the Plaintiff's own letter to the District Land Registrar acknowledging the sale and undertaking to proceed with subdivision and transfer, and prior orders directing the parties to obtain Land Control Board consent. The court found the Defendant had fully paid the purchase price and was in occupation, and was entitled to specific performance. However, although Section 27 of the Civil Procedure Act ordinarily awards costs to the successful party, the Defendant's pleadings contained no prayer for costs of the counterclaim, and no costs were granted. Judgment was entered accordingly on 31st October 2018.

Key legal issues

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01

Entitlement to specific performance of the sale agreement

Holding

The Defendant's estate proved the sale and full payment; specific performance was ordered despite the vendor (Plaintiff) not appearing.

Reasoning

The counterclaim was unopposed: the Plaintiff filed no reply to the defence and counterclaim and did not attend the hearing. The unchallenged testimony of DW1 and DW2 established the 2008 sale and full payment. The Plaintiff's own undated letter to the District Land Registrar acknowledged selling a portion and wishing to proceed with subdivision and transfer, and a court order had directed the parties to obtain Land Control Board consent. The Defendant had been in occupation of the 60 by 200 feet portion.

p. 2
02

Costs of the counterclaim

Holding

No costs granted despite the counterclaim succeeding, because costs were not pleaded.

Reasoning

Section 27 of the Civil Procedure Act would ordinarily award costs to the successful litigant, but the court noted on perusing the original and amended statement of defence and counterclaim that neither contained a prayer for costs of the counterclaim. Since a party is bound by its pleadings, the court declined to award costs on the counterclaim.

p. 2

Legal principles established

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  • A party is bound by its pleadings; relief not pleaded cannot be granted.
  • A party who has fully paid the purchase price and is in occupation of the sold portion is entitled to specific performance.

Court orders

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  1. 1.An order of Specific Performance issued directing the Plaintiff to subdivide a rectangular portion of land measuring 60 feet by 200 feet from Kisumu/Nyalunya/2366 and transfer it to the Defendant, namely Chillion Rakwach (deceased), upon obtaining the requisite statutory consents.
  2. 2.No order on costs of the counterclaim.
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over dispute relating to Kisumu/Nyalunya/2366

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, "James Nyangweso Nyagol v Lilian Anyango Okello(Sued as the Legal Representative of Chillion Rakwach, deceased, Pursuant to the court order of 31st May 2016) [2018] KEELC 949 (KLR)", Case Analysis (2018). ELC. Case No. 262 of 2013 (Fast Track). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/949/eng@2018-10-31

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