Amos Koshola Gari & another v Kadzo Kiti Kombe alias Kadzo Kiti Fitini Administrator of Fitini Kalugo Konde [2019] KEELC 4255 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Existence and enforceability of the sale agreement
The court found that the Defendant entered into a sale agreement dated 22nd December 2014 to transfer six acres to the Plaintiffs and that the agreement was valid and enforceable.
The Plaintiffs produced the sale agreement dated 22nd December 2014 as an exhibit and testified that they had financed the filing of the succession cause as agreed. The Defendant, though served, did not appear or file a defence, so the evidence stood uncontroverted. The court found it apparent from the material that the sale agreement existed and that the Defendant had no reason to neglect the transfer.
Defendant's obligation as administrator of the estate
The Defendant, as sole beneficiary and administrator of the estate of Fitini Kalugo Konde, having obtained a Grant of Letters of Administration intestate confirmed on 15th November 2016, was obliged to effect transmission and transfer and had no plausible reason not to.
The Grant of Letters of Administration intestate was issued to the Defendant on 15th November 2016 as agreed in the sale agreement, with the Plaintiffs financing the succession cause. The court held that once the grant issued, there was no plausible reason for the Defendant's failure to effect transmission into her names and thereafter transfer the six acres to the Plaintiffs, justifying an order of specific performance.
Standard of proof in formal proof proceedings
The Plaintiffs proved their case on a balance of probability and the suit was allowed as prayed.
The matter proceeded by way of formal proof after the Defendant was served with summons on 19th December 2017 but neither entered appearance nor filed a defence. The 2nd Plaintiff testified as the sole witness and adopted the joint statement. The court found no reason to doubt the uncontroverted testimony and held the claim proved to the civil standard of a balance of probability, allowing the suit as prayed.
Legal principles established
#- A party who neither enters appearance nor files a defence after service leaves the plaintiff's testimony uncontroverted, and an uncontroverted claim proved on a balance of probability will be allowed as prayed.
Court orders
#- 1.The suit is allowed as prayed: the Defendant is compelled to transmit LR No. Malindi/Marereni/Msumarini/310 into her name, obtain Land Control Board consent and effect transfer of six acres into the names of the Plaintiffs, failing which the Deputy Registrar to execute in her place
- 2.The Defendant shall pay the costs of the suit to the Plaintiffs
- Jurisdiction invoked
- Original civil suit (plaint) for specific performance of a land sale contract; no specific constitutional or statutory provision cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amos Koshola Gari & another v Kadzo Kiti Kombe alias Kadzo Kiti Fitini Administrator of Fitini Kalugo Konde [2019] KEELC 4255 (KLR)", Case Analysis (2019). Not stated in judgment (Plaint dated 4th December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4255/eng@2019-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.