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ELCPartially Allowed· [2018] KEELC 1143 (KLR)

Esther Kuria v Roseline Chemukun Kemeli [2018] KEELC 1143 (KLR)

Environment and Land Court
30 October 2018
MNMwangi Njoroge
1,328 words in judgment
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The bottom line

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A Kitale land buyer who didn't pay the purchase price lost the land: the court cancelled the sale and declared her a trespasser.

What this practically means

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Executive summary

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This is a first-instance judgment of the Environment and Land Court at Kitale delivered by Mwangi Njoroge, J, on 30 October 2018 in an undefended land sale dispute. By a plaint dated 27 February 2017, the plaintiff sought a declaration that an agreement of sale dated 18 September 2015 over five acres of Kelchinet Farm LR No. 2/39/19, priced at Kshs. 4,000,000, had been repudiated and rescinded for the defendant's breach; a declaration that the defendant was a trespasser; general damages for breach; and costs. The defendant admitted the agreement in her statement of defence but claimed only Kshs. 150,000 remained outstanding and that the plaintiff declined payment; she sought dismissal of the suit. At the hearing on 3 October 2018 only the plaintiff testified, the defendant having been served by post with a hearing notice but not appearing. The plaintiff produced the original sale agreement and two demand letters seeking Kshs. 400,000. The court noted a discrepancy in the parcel number between the agreements and an unexplained discrepancy between the plaintiff's claimed balance of Kshs. 550,000 and the Kshs. 400,000 demanded. Finding the agreement binding, vacant possession delivered, and the defendant in breach on a balance of probabilities, the court entered judgment for the plaintiff. It granted the two declaratory orders - rescission of the agreement and a declaration of trespass - and awarded the plaintiff costs, but did not award general damages despite that relief being sought. The suit was therefore partially allowed.

Key legal issues

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01

Breach and rescission of the sale agreement

Holding

The parties entered a binding agreement; the defendant was in breach and the plaintiff's claim was established on a balance of probabilities, entitling her to rescission and a declaration of trespass

Reasoning

The plaintiff produced the original written agreement signed by both parties before an advocate and proved that vacant possession was given. The defendant, though served with the hearing notice by post, did not appear or adduce evidence. The court therefore found the agreement breached for non-payment of the balance and granted the declaratory prayers sought in the plaint.

p. 2
02

Quantum of the outstanding balance

Holding

The court adopted the amount demanded in the demand notices (Kshs. 400,000) as the sum owing on the purchase price, rejecting the plaintiff's later figure of Kshs. 550,000

Reasoning

The plaintiff's evidence aggregated Kshs. 200,000 for developments with Kshs. 1,400,000 balance to arrive at Kshs. 1,600,000, of which Kshs. 1,050,000 was paid, leaving Kshs. 550,000. This conflicted with the Kshs. 400,000 demanded in the notices of 15/6/2016 and 15/7/2016, and the plaintiff offered no explanation for the discrepancy, so the court preferred the demanded amount.

p. 2

Legal principles established

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    Court orders

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    1. 1.A declaration that the agreement of sale dated 18th September, 2015 has been repudiated and is rescinded for breach of a fundamental term of the agreement by the defendant
    2. 2.A declaration that the defendant, whether by herself or her servants or agents or any person claiming through her or otherwise howsoever, is wrongfully in occupation of the suit property and is accordingly trespasser on the same and not entitled to remain on the suit property
    3. 3.The defendant shall meet the costs of this suit
    Jurisdiction invoked
    Original civil suit on a land sale agreement (ELC plaint filed 21st March, 2017)

    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, "Esther Kuria v Roseline Chemukun Kemeli [2018] KEELC 1143 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1143/eng@2018-10-30

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