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ELCAllowedELC No. 148 of 2017· [2018] KEELC 3018 (KLR)

Harun Chitiavi Washiya v Peter Mula Wanamambi [2018] KEELC 3018 (KLR)

Environment and Land Court
17 May 2018
NMN. A. Matheka
695 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court ordered a land seller to complete the transfer after taking full payment, warning that officials can sign the papers if he refuses.

What this practically means

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Executive summary

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The plaintiff sued for specific performance of an agreement dated 13th March 2014 under which he purchased a portion measuring approximately 0.08 Ha from land parcel S.KABRAS/CHEMUCHE/3314, registered in the defendant's name, at an agreed price of Kshs 100,000 paid on the same date. He alleged the defendant refused or denied him the agreed portion, complained to Malava police station, and that the defendant was charged in Butali Principal Magistrate's Court Criminal Case No. 400 of 2015, where, upon conviction, he agreed to allocate the parcel and was placed on probation on 5th October 2016. The plaintiff sought an order compelling the defendant to sign and effect the transfer, failing which the Deputy Registrar be allowed to sign the transfer papers, plus costs and any other relief. PW1 testified as to the sale, payment and the defendant's refusal, and PW2, who witnessed the agreement, corroborated him. DW1, the defendant, admitted the sale but claimed the plaintiff had not gone for the land. The court found the plaintiff's case unopposed and proved on a balance of probabilities. It ordered the defendant to sign transfer papers and transfer the 0.08 Ha portion from parcel S.KABRAS/CHEMUCHE/3314, failing which the Deputy Registrar to sign the papers, and awarded costs of the suit to the plaintiff against the defendant. Judgment delivered at Kakamega on 17th May 2018 by N.A. Matheka J.

Key legal issues

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01

Whether the plaintiff proved the sale and purchase of 0.08 Ha from parcel S.KABRAS/CHEMUCHE/3314

Holding

The plaintiff proved the case on a balance of probabilities; the sale agreement of 13th March 2014 and payment of Kshs 100,000 were established, and the defendant admitted the sale.

Reasoning

PW1 testified that he entered into a mutual agreement with the defendant on 13th March 2014 to purchase a portion measuring approximately 0.08 Ha and paid the agreed purchase price of Kshs 100,000 on the same date. PW2, who witnessed the sale agreement, corroborated this evidence. DW1, the defendant, admitted selling the land to the plaintiff, merely asserting that it was the plaintiff who had not gone for the land. With no real opposition and admission of the sale, the plaintiff's claim met the civil standard.

p. 2

Legal principles established

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  • Where an unopposed claim for specific performance of a land sale agreement is proved on a balance of probabilities, the court will order the vendor to effect the transfer, with execution by the Deputy Registrar on default.

Court orders

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  1. 1.That the defendant is to sign transfer papers and he transfers a portion measuring approximately 0.08 ha from parcel S.KABRAS/CHEMUCHE/3314 failure to which the deputy registrar be allowed to sign the said papers
  2. 2.Costs of the suit to be borne by the defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel S/KABRAS/CHEMUCHE/3314

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, "Harun Chitiavi Washiya v Peter Mula Wanamambi [2018] KEELC 3018 (KLR)", Case Analysis (2018). ELC No. 148 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3018/eng@2018-05-17

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