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ELCDismissedELC Case No. 1077 of 2016 (O.S)· [2019] KEELC 1125 (KLR)

Peter Kimani Irungu & another v Justus Njuguna Wainaina [2019] KEELC 1125 (KLR)

Environment and Land Court
18 October 2019
KBK. BOR
1,393 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs sued the Defendant by originating summons under Order 37 Rules 3 and 14 of the Civil Procedure Rules, seeking determinations arising from a sale agreement over land known as Nakuru/Moi Ndabi/584 transacted in Nairobi on or about 15 January 2015 for a consideration of Kshs. 9,600,000/=. They sought orders compelling the Defendant or his advocates, Mugambi & Kariuki and Company Advocates, to procure the necessary consents including Land Control Board consent, pay stamp duty, rates and outgoings, register the transfer in their favour, deliver vacant possession, refund monies in default, and direct the advocates to release completion documents. The Defendant filed no response and did not appear at the hearing; the Plaintiffs proceeded by affidavit evidence and submissions, producing the title deed, the undated sale agreement, an executed transfer, an advocate's acknowledgement of receipt of completion documents and demand letters. The court, examining the agreement, found it appeared to acknowledge a debt of Kshs. 9,600,000/= which the Defendant undertook to settle by transferring the Nakuru land valued at Kshs. 4 million and a Kajiado Kaputiei North plot for the balance. The agreement was ambiguous, silent on stamp duty (which would fall on the purchasers) and silent on when possession was to be given; there was also a possibility the land had been sold to a third party. The court held the advocates bore no obligation to procure consents since they were not party to the agreement. Finding the Plaintiffs had failed to prove their claim, the court declined to make the determinations sought and ordered no costs. Judgment delivered by K. Bor, J on 18 October 2019.

Key legal issues

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01

Whether the court should grant the determinations sought in the originating summons

Holding

Dismissed - the Plaintiffs failed to prove their claim to the suit land

Reasoning

The court examined the undated 2015 agreement and found it appeared to acknowledge a debt of Kshs. 9,600,000/= which the Defendant undertook to settle by transferring Nakuru/Moi Ndabi/584 (valued at Kshs. 4 million) plus another Kajiado Kaputiei North plot for the balance. The agreement was ambiguous, silent on stamp duty and on timing of possession. No evidence showed the advocates were obligated to procure consents, and no evidence showed whether the Kajiado plot was transferred. The Plaintiffs therefore failed to prove their claim.

p. 2
02

Whether Mugambi & Kariuki and Company Advocates could be directed to procure consents and register the transfer

Holding

No - the advocates were not party to the agreement and bore no such obligation

Reasoning

The originating summons sought orders binding the Defendant's advocates to procure consents, pay stamp duty and register the transfer. The court found no contractual or other basis in the agreement for imposing those obligations on the advocates, since the sale agreement was made only between the Plaintiffs and the Defendant. It was therefore not proper for the court to direct the advocates accordingly.

p. 2

Legal principles established

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  • A party who claims specific performance of a land sale agreement must prove the terms of the agreement, including obligations said to bind third parties such as the vendor's advocates
  • Where an agreement is silent on who bears stamp duty on a transfer, the burden falls on the purchasers

Court orders

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  1. 1.The court declined to direct the Defendant or the Deputy Registrar to execute the transfer over Nakuru/Moi Ndabi/584 to the Plaintiffs
  2. 2.The court declined to make the determinations framed by the Plaintiffs in the originating summons dated 4/5/2016
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rules 3 and 14
Jurisdiction invoked
Order 37 Rules 3 and 14 of the Civil Procedure Rules (Originating Summons jurisdiction of the 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, "Peter Kimani Irungu & another v Justus Njuguna Wainaina [2019] KEELC 1125 (KLR)", Case Analysis (2019). ELC Case No. 1077 of 2016 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1125/eng@2019-10-18

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