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ELCPartially AllowedELC Case No. 193 of 2015· [2018] KEELC 1539 (KLR)

Mildred Sandra Igadi v Elizabeth M. Fedha [2018] KEELC 1539 (KLR)

Environment and Land Court
25 September 2018
NMN.A. Matheka
1,282 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 forced a land seller to complete the sale at the price written in the agreement, and ordered her to leave the buyer in peaceful possession.

What this practically means

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Executive summary

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The plaintiff sued for specific performance of an agreement dated 18th June 2014 under which she purchased 0.15 hectares excised from the defendant's parcel TIRIKI/SHAMAKHOKHO/1268 for Ksh. 800,000, of which Ksh. 750,000 was paid. Sub-division created parcel TIRIKI/SHAMAKHOKHO/1456 (0.15 ha), into which the plaintiff moved, built a home and developed the land exclusively. The defendant refused to execute transfer documents and rejected the balance of Ksh. 50,000, returning a banker's cheque and refunding an M-Pesa payment. She counterclaimed that the agreement was for 0.128 hectares and that the plaintiff's attempt to acquire 0.15 ha constituted breach and attempted fraud. The defendant denied applying for land board consent or effecting sub-division. The court accepted the testimony of the plaintiff's witnesses and the surveyor. Relying on the holding in Reliable Electrical Engineers Ltd v Kenya Petroleum Refinery Ltd that specific performance rests on a valid enforceable contract, the court treated the signed sale agreement as the primary document and found the acreage to be 0.15 hectares, rejecting the defendant's 0.128 hectare claim. The plaintiff proved her case on a balance of probabilities. The court ordered the plaintiff to pay the Ksh. 50,000 balance, whereupon the defendant must execute transfer documents (failing which the deputy registrar may execute), issued a permanent injunction protecting the plaintiff's occupation of TIRIKI/SHAMAKHOKHO/1456, and awarded costs to the plaintiff.

Key legal issues

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01

Validity and enforceability of the land sale agreement

Holding

The contract for sale of 0.15 hectares was valid and specifically enforceable; the defendant was compelled to transfer title upon payment of the outstanding balance

Reasoning

The court relied on the sale agreement as the primary document, finding the acreage stated therein was 0.15 hectares, signed by the plaintiff and her witnesses. The defendant and her son, a witness to the agreement, could not resile from its terms. The plaintiff had taken exclusive possession, developed the land, and tendered the balance which the defendant refused. Specific performance lay because a valid enforceable contract existed.

p. 2

Legal principles established

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  • The jurisdiction of specific performance is based on the existence of a valid enforceable contract

Court orders

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  1. 1.The plaintiff is to pay the balance of the purchase price Kshs. 50,000/= thereafter the defendant to execute all documents necessary to transfer title No. TIRIKI/SHAMAKHOKHO/1456 into the plaintiff's name; in default the deputy registrar of the court is authorized to execute such documents on behalf of the defendant
  2. 2.A permanent injunction restraining and barring the defendant, her relatives or agents from alienating, claiming, selling, offering for sale, carrying out works on, trespassing on or interfering with the plaintiff's exclusive and peaceful occupation and use of land parcel No. TIRIKI/SHAMAKHOKHO/1456
  3. 3.Costs of the suit to the plaintiff
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land contracts and titles

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, "Mildred Sandra Igadi v Elizabeth M. Fedha [2018] KEELC 1539 (KLR)", Case Analysis (2018). ELC Case No. 193 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1539/eng@2018-09-25

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