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ELCAllowedELC Case No. 199 of 2016· [2018] KEELC 2149 (KLR)

Kennedy Muyekho Tovoko v Francis Luangale Sikwekwe [2018] KEELC 2149 (KLR)

Environment and Land Court
24 July 2018
NMN.A. Matheka
1,324 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who paid in full and lived on the land for 20 years successfully forced the seller to complete the transfer.

What this practically means

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Executive summary

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The plaintiff sued the defendant in the Environment and Land Court at Kakamega seeking specific performance of an agreement to sell a 0.34 acre portion to be curved out of land parcel L.R. N. KABRAS/LWANDETI/1940 for an agreed total consideration of Ksh. 12,200/=. According to the plaintiff, the land was sold in two portions - 0.18 acres for Ksh. 5,000/= under an agreement of 8th March 1997, and 0.16 acres for Ksh. 7,200/= under a second agreement of 29th March 2000 - with the price paid in full by installments, possession taken, and continued occupation and use to date. The defendant nevertheless refused to accompany the plaintiff to the Lugari/Matete Land Control Board to effect transfer, prompting the suit. The plaintiff sought an order compelling the defendant to appear before the Land Control Board and transfer the portion, with authority in default for the Deputy Registrar to sign all necessary transfer documents, plus costs. At the hearing the plaintiff produced the sale agreements and photographs of occupation, and proved payment of the full consideration. In his defence the defendant admitted selling the land, acknowledged the plaintiff's occupation, and gave in to surrendering the portion. The court, applying the decision in Reliable Electrical Engineers Ltd v Kenya Petroleum Refinery Ltd on the jurisdiction to grant specific performance, found the contract valid and enforceable and the plaintiff's case proved on a balance of probabilities. It ordered specific performance, with the Deputy Registrar empowered to sign the transfer documents in default, and awarded costs to the plaintiff.

Key legal issues

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01

Whether the plaintiff proved a valid, enforceable contract for the sale of the 0.34 acre portion

Holding

The court found that the plaintiff proved the sale agreements, full payment of the agreed consideration, and occupation of the purchased portion, and that the defendant admitted the sale and the receipt of the consideration.

Reasoning

The plaintiff produced land sale agreements evidencing the sale of the suit land, proved payment of the full agreed price, and produced photographs showing occupation and use of the purchased portion. The defendant, when put to his defence, admitted receiving the consideration and acknowledged the plaintiff's occupation. The court therefore found the elements of a valid enforceable contract established and that only the transfer remained outstanding.

p. 3
02

Whether specific performance was the appropriate remedy

Holding

Specific performance was granted because a valid enforceable contract existed and had been performed by the plaintiff, who remained in occupation for over 20 years without transfer.

Reasoning

Applying the principle in Reliable Electrical Engineers Ltd v Kenya Petroleum Refinery Ltd, the court held that specific performance rests on the existence of a valid enforceable contract. Here the contract suffered no defect, the plaintiff had paid in full and taken possession, and the defendant had admitted the sale and given in to surrender the land, making specific performance the appropriate remedy rather than damages.

p. 3

Legal principles established

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  • The jurisdiction to order specific performance is founded on the existence of a valid and enforceable contract, and will not issue where the contract is defective or invalid.

Court orders

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  1. 1.An order of specific performance, ordering the Defendant to appear before the Lugari/Matete Land Control Board and cause the transfer of the 0.34 acre portion from land parcel L.R. N. KABRAS/LWANDETI/1940 to the Plaintiff
  2. 2.In default, the Deputy Registrar of the court is authorized to sign all the necessary transfer forms and papers on behalf of the Defendant to effect the transfer
  3. 3.Costs of the suit to the plaintiff
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (first-instance suit for specific performance of a land sale contract)

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, "Kennedy Muyekho Tovoko v Francis Luangale Sikwekwe [2018] KEELC 2149 (KLR)", Case Analysis (2018). ELC Case No. 199 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2149/eng@2018-07-24

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