Roho Ya Diani Ltd v Judith Kemunto Nyauma & another [2019] KEELC 1800 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#What was the agreed purchase price for Plots Nos. 3285 and 3286
The agreed price was Kshs6,000,000/= for the two plots, as evidenced by the sale agreement dated 25th February 2016 and corroborated by the 1st defendant's own affidavit admitting payment of Kshs5,000,000/= towards that sum
The sale agreement executed on 25th February 2016 provided a purchase price of Kshs6,000,000/=. The 1st defendant denied signing it but produced no expert report showing the signature was not hers. Her replying affidavit deposed to paying Kshs5,000,000/= for the two plots and seeking to pay a balance, which corroborates the higher price. The Kshs500,000/= figures in transfer forms and Land Control Board consent were only declared values and do not bind the parties to the negotiated price.
Whether there is any unpaid balance of the purchase price
Yes - Kshs5,000,000/= was paid, leaving an unpaid balance of Kshs1,000,000/= payable jointly and severally by the defendants
The 1st defendant's replying affidavit admitted paying Kshs5,000,000/= to the plaintiff's Diamond Trust Bank account and deposed that when she went to pay the balance on 12th April 2016 she found the account closed. This admission, despite her later disavowal of paragraph 4 of the affidavit, established that payment remained outstanding. Although the plaintiff produced no evidence of receipt of the Kshs5,000,000/=, the defendant's admission confirmed the sum payable.
Whether the plaintiff was entitled to cancellation of the defendants' title
No - cancellation of title was refused because the sale agreement contained no clause providing for cancellation upon non-payment
Although the plaintiff proved the unpaid balance of Kshs1,000,000/=, the specific reliefs sought - cancellation of entries on the title, a declaration of ownership and re-issue of the title in the plaintiff's favour - depended on a contractual clause permitting cancellation. No such clause existed in the sale agreement. The court therefore declined to enter judgment for cancellation and instead granted a monetary order for the balance under the residual prayer (g) of the plaint.
Legal principles established
#- The value assigned to a property in a transfer form or for valuation purposes does not bind parties to a sale; the purchase price is as negotiated between vendor and purchaser
- A party alleging forgery of a document must produce expert evidence to displace an admitted or apparently matching signature
- Burden of proof lies on the plaintiff under Sections 107 and 108 of the Evidence Act
Court orders
#- 1.The defendants shall jointly and severally pay to the plaintiff the balance of the purchase price of Kshs1,000,000/= within 30 days of the judgment
- 2.Payment to be accompanied by costs of the suit
- 3.Interest at court rates from the date of filing the case until payment in full
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act (original suit over land parcels in Kwale)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Roho Ya Diani Ltd v Judith Kemunto Nyauma & another [2019] KEELC 1800 (KLR)", Case Analysis (2019). ELC Case No. 129 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1800/eng@2019-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.