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ELCDismissedNot stated in judgment (plaint dated 28th February 2017, filed 6th March 2017, Migori)· [2019] KEELC 954 (KLR)

Jacob Owalo Ariaro & another v Philip Onyango Owich [2019] KEELC 954 (KLR)

Environment and Land Court of Kenya
17 September 2019
GOG.M.A Ongondo
1,658 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed land buyers' Ksh 245,000 claim because their sale agreement was invalid and their evidence proved nothing against the seller.

What this practically means

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Executive summary

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The plaintiffs sued the registered owner of land parcel Kamagambo/Kabuoro/1995 (approximately 0.08 hectares in Migori County) seeking Kshs 245,000 with interest at 24% per annum, general damages for breach of contract or alternatively specific performance, and costs. They claimed that by a sale agreement dated 8th October 2012 they agreed to buy the land for Kshs 385,000, paid Kshs 215,000 as part payment, and a further Kshs 30,000 to a third party, Damaris Kawaona, to remove a restriction on the title, but the defendant refused to execute transfer documents. The defendant denied the claim, asserting the contract was frustrated by the third party's restriction without his involvement. The defendant did not attend the hearing of his case, which was deemed closed, but filed written submissions. The court adopted the issues framed by the defendant's counsel: validity and enforceability of the agreement, breach, and entitlement to relief. On the evidence of the two plaintiffs' witnesses, the agreement had no completion date, PW1 was not present when it was signed, and PW2 who signed for PW1 confirmed his own name did not appear on it. The payment of Kshs 30,000 was made without the defendant's involvement or consent, exonerating him. The court held the agreement did not satisfy section 3(3) of the Law of Contract Act regarding interests in land, that part performance could not be relied on as it was not pleaded, and that the valuation report relied on in submissions was not part of the pleadings or evidence. The plaintiffs failed to prove their claim on a balance of probabilities. The suit was dismissed with costs borne jointly and severally by the plaintiffs.

Key legal issues

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01

Validity and enforceability of the land sale agreement (PEXh1)

Holding

PEXh1 was not valid or enforceable; it had no completion date, PW1 was not present when it was signed, and PW2 who signed for PW1 confirmed his name did not appear on it.

Reasoning

The court examined the plaintiffs' own evidence. PW1 admitted the completion date was not indicated, that he was not present when the agreement was signed, and that he never paid the Ksh 30,000 to the defendant. PW2 confirmed the agreement bore no completion date and that his name did not appear on it despite signing for PW1. The agreement also failed section 3(3) of the Law of Contract Act requirements for contracts on interests in land and was frustrated by a third party's caution.

p. 3
02

Whether the defendant breached the agreement

Holding

No breach was established; the plaintiffs' own testimony exonerated the defendant.

Reasoning

PW1 admitted he did not pay the Ksh 30,000 to the defendant for removal of the third party's caution and the defendant was not party to or consenting to that payment. PW2's testimony that the agreement lacked a completion date and that his name did not appear on it further exonerated the defendant. The court agreed with the statement of defence that the contract was frustrated by the third party.

p. 2
03

Entitlement to the reliefs sought in the plaint

Holding

The reliefs were refused because the plaintiffs did not prove their claim on a balance of probabilities.

Reasoning

Having found the agreement invalid and unenforceable and no breach proved, the court held that although equity shall suffer no wrong without a remedy, the plaintiffs had failed to discharge the burden of proof on a balance of probabilities. The valuation report for general damages was introduced for the first time in submissions and could not aid the claim.

p. 3

Legal principles established

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  • A contract for the sale of land must satisfy section 3(3) of the Law of Contract Act and its terms must be proved by the document itself
  • A party cannot rely on a doctrine such as part performance that is not pleaded
  • Evidence in submissions of documents not produced in pleadings or evidence cannot aid a claim

Court orders

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  1. 1.Dismissal of the plaintiffs' claim commenced by way of a plaint dated 28th February 2017
  2. 2.Costs of the suit to be borne by the plaintiffs jointly and severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Article 10(2)(b)
  • Law of Contract Act (Cap 23)Section 3(3)
  • Evidence Act (Cap 80)Section 97(1)

Cases cited (3)

  • Great Lakes Transport Company (V) Ltd vs Kenya Revenue Authority
    (2009) KLR 720
  • Sumaria and another v Allied Industries Ltd
    (2007) 2 KLR 1
  • Macharia Mwangi Maina and 87 others vs Davidson Mwangi Kagiri
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction over claims relating to land in Migori County; Article 159(2)(b) of the Constitution of Kenya 2010 invoked in directing case management

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, "Jacob Owalo Ariaro & another v Philip Onyango Owich [2019] KEELC 954 (KLR)", Case Analysis (2019). Not stated in judgment (plaint dated 28th February 2017, filed 6th March 2017, Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/954/eng@2019-09-17

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