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ELCAllowedELC Cause No. 541 of 2017 (formerly Kisii ELC Cause No. 25 of 2017)· [2018] KEELC 1290 (KLR)

David Lekuta Rudisha v Nashuru Kanyukiya Murianko [2018] KEELC 1290 (KLR)

Environment and Land Court
12 October 2018
MKMohammed Noor Kullow
1,406 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a land seller to complete the sale because a properly written, signed and witnessed agreement outweighed her claim she thought she was leasing.

What this practically means

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Executive summary

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The plaintiff sued for specific performance of a sale agreement dated 23rd September 2015 over 5.3 acres of parcel Trans-Mara/Oloiborsoito/302, a permanent injunction against the defendant's interference, removal of a caution endorsed on the register, and costs. He alleged that through his brother (PW2) he negotiated and paid Kshs 1,300,000 of the Kshs 1,350,000 consideration into an account of Sylvia Natumoi (PW3), who cared for the defendant, and that the agreement was signed by thumb print at the offices of Jumba Advocate. The defendant denied selling or meeting the plaintiff, claiming she believed she was signing a lease and that her grandson had attempted to sell the land without her consent; her daughter (DW2) supported this. The court suo motu called Benjamin Ndeto of Jumba Advocate's firm, who confirmed preparing and witnessing the agreement. Framing three issues - validity of the agreement, entitlement to an injunction, and costs - the court held the agreement satisfied section 3(3) of the Law of Contract Act, disbelieved the defendant's lease claim, and found a binding sale agreement. It found a prima facie case for an injunction with damages inadequate, proved on a balance of probability. Judgment was entered for the plaintiff: specific performance, a permanent injunction over the 5.3 acres, discharge of the caution, an order for execution of the transfer within 30 days (with the Deputy Registrar empowered to sign in default), and costs to the plaintiff.

Key legal issues

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01

Validity and enforceability of the sale agreement dated 23/9/15

Holding

A binding sale agreement existed between the plaintiff and the defendant for the purchase of 5 acres being part of LR No. Trans-Mara/Oloiborsoito/302, complying with section 3(3) of the Law of Contract Act.

Reasoning

PW2 had the plaintiff's express authority to negotiate and the agreement was prepared and signed by thumb print at the offices of Jumba Advocate, witnessed by an employee of the firm. The defendant admitted going to the law firm to sign a document; her claim that she thought she was leasing rather than selling was disbelieved. The agreement met the writing, signature and attestation requirements of section 3(3).

p. 2
02

Entitlement to injunction and specific performance

Holding

Having found a binding sale agreement, the plaintiff established a prima facie case for injunction and damages would not be an adequate remedy; judgment was entered for the plaintiff with specific performance ordered.

Reasoning

The court applied the established principle that a prima facie case plus inadequacy of damages justifies injunctive relief. Since the defendant refused to subdivide and transfer the purchased portion, an order of specific performance and a permanent injunction were the appropriate remedies, together with removal of the caution on the title.

p. 2

Legal principles established

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  • A contract for the disposition of an interest in land must satisfy section 3(3) of the Law of Contract Act: be in writing, signed by all parties, with signatures attested by a witness present at signing.
  • Where a valid written and attested sale agreement exists and damages would be inadequate, the purchaser is entitled to specific performance and a permanent injunction.

Court orders

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  1. 1.An order of specific performance do issue against the defendant over and in respect of portion of land LR. Trans-Mara/Oloiborsoito/302.
  2. 2.A permanent injunction restraining the Defendant by herself or any other person from entering, trespassing, laying claim whatsoever with that portion measuring 5.3 acres of land being part of parcel Trans-Mara/Oloiborsoito/302.
  3. 3.An order against the Registrar Trans-Mara/East/West sub-counties to vacate and discharge the caution endorsed on the title dated 28/9/15.
  4. 4.An order that the Defendant facilitate execution of transfer of the 5.3 acres portion in favour of the plaintiff within 30 days, and in default the Deputy Registrar of the court to sign all such transfer forms in favour of the plaintiff.
  5. 5.Costs to the plaintiff.

Authorities

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Legislation

  • Law of Contract Actsection 3(3)
Jurisdiction invoked
Environment and Land Court jurisdiction (original first-instance suit; specific provision not 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 Lekuta Rudisha v Nashuru Kanyukiya Murianko [2018] KEELC 1290 (KLR)", Case Analysis (2018). ELC Cause No. 541 of 2017 (formerly Kisii ELC Cause No. 25 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1290/eng@2018-10-12

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