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ELCAllowedKericho ELC Civil Suit (Plaint dated 15th May 2017)· [2018] KEELC 3094 (KLR)

Rusi Chepngetich Bigen v Kemei Kibet Philiph [2018] KEELC 3094 (KLR)

Environment and Land Court
25 May 2018
JOJ. M. Onyango
400 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho court ordered a land seller who kept a buyer's money without transferring land to refund the full price plus penalty and damages.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 15th May 2017 claiming Kshs. 429,000 and general damages for breach of a contract for the sale of land parcel KERICHO/KAPSUSER/5014, measuring 25 by 100 feet, for a consideration of Kshs. 330,000 under an agreement dated 4th August 2012. The agreement obliged the defendant to give the plaintiff vacant possession upon payment of the purchase price and, in the event of breach, to refund the purchase price together with a penalty of 30%. The plaintiff paid the purchase price but the defendant refused to give vacant possession. The plaintiff produced the sale agreement and the defendant's undertaking to refund, and called two witnesses present at the purchase who corroborated her testimony. The defendant, despite service of summons, neither entered appearance nor filed a defence, and the suit proceeded ex parte. The court found the plaintiff's unchallenged evidence credible and proved on a balance of probabilities. Judgment was entered for the plaintiff for Kshs. 429,000 as the contract sum (reflecting the refund plus the 30% penalty), Kshs. 100,000 in general damages for breach of contract as suggested by plaintiff's counsel and found reasonable, costs of the suit, and interest on the two sums at court rates until payment in full. Judgment was delivered at Kericho on 25th May 2018 by J. M. Onyango, J.

Key legal issues

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01

Breach of a land sale agreement

Holding

The defendant breached the agreement by refusing to give vacant possession despite payment of the purchase price

Reasoning

The plaintiff produced a written sale agreement dated 4th August 2012 and an undertaking by the defendant to refund, with two witnesses corroborating. The defendant did not enter appearance or file a defence, so the evidence was unchallenged. The court found the case proved on a balance of probabilities and awarded the contract sum of Kshs. 429,000 (purchase price plus 30% penalty) and general damages.

p. 1
02

Quantum of general damages for breach of contract

Holding

General damages of Kshs. 100,000 awarded as suggested by plaintiff's counsel and found reasonable

Reasoning

Counsel suggested Kshs. 100,000 as general damages for breach of contract. The court accepted the figure as reasonable in the circumstances and included it in the final judgment with interest at court rates.

p. 1

Legal principles established

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  • Unchallenged evidence, supported by exhibits and corroborating witnesses, proves a claim on a balance of probabilities
  • A party in breach of a land sale agreement is liable for the agreed refund with penalty, and general damages for breach of contract

Court orders

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  1. 1.Kshs. 429,000 being the contract sum
  2. 2.Kshs. 100,000 general damages
  3. 3.Costs of the suit
  4. 4.Interest on the contract sum and general damages at court rates until payment in full
Jurisdiction invoked
Original civil jurisdiction over land disputes (Environment and Land Court), suit for breach of a land sale agreement

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, "Rusi Chepngetich Bigen v Kemei Kibet Philiph [2018] KEELC 3094 (KLR)", Case Analysis (2018). Kericho ELC Civil Suit (Plaint dated 15th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3094/eng@2018-05-25

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