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ELCAllowedELC Civil Case No. 1495 of 2016 (OS)· [2019] KEELC 1217 (KLR)

Williamson Gichuki Mwichigi & another (suing for and on behalf of Sisi kwa Sisi Self Help Group v Joseph Kabungo Njenga t/a Savion Property Developers [2019] KEELC 1217 (KLR)

Environment and Land Court
24 October 2019
LKL. Komingoi
899 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ordered a property developer to hand over title deeds to a self-help group that bought plots, ruling receipts and share certificates proved ownership.

What this practically means

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Executive summary

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The plaintiffs, officials of Sisi Kwa Sisi Self Help Group, sued by originating summons under Order 37 rule 3 of the Civil Procedure Rules claiming purchasers' interests in four plots (A6, A7, A8 and E1) carved out of land parcel Ruiru East/Juja East Block 2/1273, which they purchased from the defendant, Joseph Kabungo Njenga trading as Savion Property Developers. They sought declarations of a valid claim and entitlement to title deeds or lease certificates, specific performance compelling the defendant to process and hand over the documents, and, in the alternative, refund of the purchase money with general and special damages, plus costs. The defendant was served but filed no response. The court directed viva voce evidence, and PW1, the group's secretary, testified that the group bought the plots at Kshs.35,000 each plus Kshs.48,000 per title, producing the registration certificate, receipts, share certificates, a location map, demand letters, a transfer form and a copy of the defendant's title, but no title deeds were ever issued. Holding the uncontroverted claim properly brought under Order 37, the court found the case proved on a balance of probabilities and entered judgment: declarations of a valid claim and entitlement to title deeds or lease certificates, an order of specific performance with refund of the purchase price at current market rates in the alternative, and costs of the suit with interest. Judgment dated, signed and delivered in Nairobi on 24 October 2019 by L. Komingoi J.

Key legal issues

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01

Whether purchasers of plots from the defendant, holding receipts and share certificates but without title deeds, have a valid claim entitling them to specific performance

Holding

Yes; the plaintiffs proved purchase of the four plots and entitlement to title deeds or lease certificates, with specific performance directed and refund at current market rates in the alternative.

Reasoning

PW1, the group's secretary, testified that the group bought four plots at Kshs.35,000 each plus Kshs.48,000 per title deed, producing registration certificate, receipts, share certificates, a location map, demand letters, a transfer form and a copy of the defendant's title. The defendant, despite service, filed no response and gave no evidence. The court held the claim was properly brought under Order 37 and that the uncontroverted evidence proved the claim on a balance of probabilities, warranting the declarations and orders sought.

p. 2

Legal principles established

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  • Where a defendant is served but does not respond, and the plaintiff's evidence is uncontroverted, the plaintiff need only prove the claim on a balance of probabilities.

Court orders

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  1. 1.A declaration that the plaintiffs have a valid claim over the suit properties Plot Number A6, A7, A8 and IE in land parcel number Ruiru East/Juja East block 2/1273
  2. 2.A declaration that the plaintiffs are entitled to be issued with title deeds or lease certificates by the defendant over Plot Number A6, A7, A8 and IE
  3. 3.An order of specific performance directing the defendant to process, issue and hand over title deeds and/or lease certificates for Plot Number A6, A7, A8 and IE; in the alternative the plaintiffs be refunded the purchase price at the current market rates
  4. 4.The plaintiffs shall have costs of the suit and interest

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 rule 3
Jurisdiction invoked
Order 37 rule 3 of the Civil Procedure Rules and all other enabling provisions of law

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, "Williamson Gichuki Mwichigi & another (suing for and on behalf of Sisi kwa Sisi Self Help Group v Joseph Kabungo Njenga t/a Savion Property Developers [2019] KEELC 1217 (KLR)", Case Analysis (2019). ELC Civil Case No. 1495 of 2016 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1217/eng@2019-10-24

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