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ELCPartially AllowedMalindi ELC Case (Plaint dated 26th March 2015, filed 8th April 2015)· [2018] KEELC 2266 (KLR)

Pauline Awino Osino v Omar Ali Bweru & another [2018] KEELC 2266 (KLR)

Environment and Land Court
31 July 2018
2,750 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who paid a deposit won a court order forcing the sellers to transfer 15 acres after they refused to complete the sale.

What this practically means

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Executive summary

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The plaintiff sued the defendants seeking specific performance of a sale agreement dated 25th July 2013 under which the defendants agreed to sub-divide their parcel LR No. Chonyi/Bedzombo/Kitsoeni/744 (approximately 45 hectares) and transfer a 15-acre portion to the plaintiff for Kshs 7,500,000/-. The plaintiff paid a deposit of Kshs 750,000/- and a further Kshs 10,000/-, but the defendants failed to sub-divide and transfer. The defendants filed a defence and counterclaim contending the plaintiff was to fund the sub-division, that the 90-day completion period had lapsed, and seeking a declaration that the contract was frustrated, damages and related expenses. The matter proceeded ex-parte on 4th December 2017 after the defendants' new advocate, Mr. Muranje, who had appeared earlier that day, failed to return at the adjourned time, and the defendants declined to cross-examine or adduce evidence. The defendants' later application to set aside the ex-parte proceedings and arrest judgment, brought through their former advocates, was refused: the Notice of Change of Advocate of 12th July 2017 was effective despite formal defects, and the service dispute was internal to the defendants and their former advocate. On the merits, the court applied Reliable Electrical Engineers (K) Ltd v Mantrac Kenya Ltd, holding that specific performance is discretionary but appropriate here because land is unique and damages inadequate. Judgment was entered for the plaintiff: an order of specific performance requiring transfer of the 15 acres within 90 days, dismissal of the counterclaim, and costs of the suit and counterclaim to the plaintiff.

Key legal issues

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01

Validity of the Notice of Change of Advocate and the defendants' application to set aside ex-parte proceedings

Holding

The Notice of Change of Advocate filed 12th July 2017 was effective despite defects in form and lack of proof of service on the former advocate; the defendants were aware of the hearing date and the application to arrest judgment lacked merit

Reasoning

The record showed the Notice bore the defendants' signatures/thumbprint, a representative of the new firm attended registry fixing, and Mr. Muranje himself appeared on the hearing date, sought time to consult, but failed to return, whereupon the defendants declined to cross-examine and closed their case. The dispute over service was internal between defendants and their former advocate and could not prejudice the plaintiff.

p. 3
02

Entitlement to specific performance of the sale agreement

Holding

Specific performance was granted because the contract was valid and enforceable, and damages were inadequate given the uniqueness of land

Reasoning

The Sale Agreement of 25th July 2013 required the purchaser to pay only the deposit, with the balance payable upon completion of sub-division and the vendor obtaining title. The defendants' claim that the plaintiff was to fund the sub-division was unsupported. Their failure to perform suggested they had found better-paying suitors. Since each parcel of land is unique, damages would not place the plaintiff in the position she would have occupied had the contract been performed.

p. 4
03

Defendants' counterclaim based on frustration of contract

Holding

The counterclaim was dismissed as the alleged frustration (plaintiff's failure to fund sub-division) was not supported by the contract or evidence

Reasoning

Paragraph 1 of the agreement showed the vendor was to sub-divide and obtain title before the balance fell due, and there was no reason the Kshs 750,000/- deposit could not fund the sub-division. The defendants, who called no witness, failed to substantiate the frustration claim.

p. 4

Legal principles established

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  • Specific performance is a discretionary equitable remedy granted only on well-settled principles, based on the existence of a valid enforceable contract, and will not be ordered where damages are an adequate alternative remedy
  • Because land has a fixed location and each piece of land is unique, damages will not be adequate compensation to a purchaser of land, making specific performance generally available
  • Until notice of change of advocate is filed and served, the former advocate is considered the advocate of the party until the conclusion of the cause (Order 9 Rules 5 and 6, Civil Procedure Rules)

Court orders

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  1. 1.An order of specific performance directing the Defendants to transfer, within 90 days, the identified portion measuring 15 acres to be excised from LR No. Chonyi/Bedzombo Kitsoeni 744 to the Plaintiff
  2. 2.The Defendants' counterclaim is dismissed
  3. 3.The Plaintiff shall have the costs of the suit and the Counterclaim

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rules 5 and 6

Cases cited (1)

  • Reliable Electrical Engineers (K) Ltd –vs- Mantrac Kenya Limited
    (2006) eKLR
Jurisdiction invoked
Original civil jurisdiction over land contracts and land transactions (Environment and Land Court)

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, "Pauline Awino Osino v Omar Ali Bweru & another [2018] KEELC 2266 (KLR)", Case Analysis (2018). Malindi ELC Case (Plaint dated 26th March 2015, filed 8th April 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2266/eng@2018-07-31

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