Solomon Ndegwa Kuria v Peter Nditu Gitau [2019] KEELC 1508 (KLR)

The court applied Section 3(3) of the Law of Contract Act, which requires a contract for disposition of an interest in land to be in writing, signed by all parties, with signatures attested by witnesses. Perusing the sale agreement produced as an exhibit, the court found it was in writing and signed, contained the parties' names, property description, purchase price and conditions, and therefore amounted to a valid, enforceable sale agreement.

The Defendant, as vendor, had acknowledged receipt of the purchase price and undertaken to avail consents, the deed plan and to ensure transfer by the Administrators of the Estate of Geoffrey Gitaka Kimani. The Plaintiff's uncontroverted testimony established that these obligations were never fulfilled. Applying the definition of breach as a violation of a contractual obligation by failing to perform, the court held the Defendant in breach and liable under the contractual clause providing for payment of 25% of the purchase price upon breach.

Although the contract was valid and enforceable, specific performance is discretionary. The court noted evidence that the suit land does not form part of the Estate of Geoffrey Gitaka Kimani and was never listed in the confirmed grant. No title document or recent search was availed, so the registered owner could not be determined. The court declined to take the risk of ordering a transfer the Defendant might be unable or unwilling to effect, and held that specific performance would likely prejudice parties not before the court. Damages and refund were instead awarded per the contract's breach clause.

Relying on Shaneebal Limited v County Government of Machakos, Kenya Power & Lighting Co Ltd v Nathan Karanja Gachoka, and Gichinga Kibutha v Caroline Nduku, the court held that unchallenged evidence is not automatic proof. The court retains an obligation to interrogate the plaintiff's evidence and the plaintiff must discharge the burden of proof on a balance of probabilities before judgment can be entered.