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ELCAllowedELC Case No. 190 of 2017· [2019] KEELC 5065 (KLR)

Isabella Auma Kubende v Michael Owino Wafula [2019] KEELC 5065 (KLR)

High Court of Kenya at Busia, Environment and Land Court
16 July 2019
771 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Busia court ordered a land seller to refund Kshs.315,000 after selling the same parcel to someone else, applying the agreement's indemnity clause.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant for a refund of the purchase price of land parcel BUKHAYO/MATAYOS/4207, alleging breach of a sale agreement dated 11th September 2013 under which she agreed to buy the property for Kshs.370,000. She paid Kshs.305,000 upfront and a further Kshs.10,000 under a follow-up agreement of 11th November 2013, with the balance withheld pending removal of a caution. She conducted due diligence, obtained Land Control Board consent, and the Defendant signed a transfer form in her favour. She later discovered the land had been sold to a third party and was evicted. The Defendant did not enter appearance or file a defence; interlocutory judgment was entered and the suit proceeded by formal proof. The court held that although the Plaintiff's case was uncontroverted, she still had to prove it on a balance of probabilities, and found she had done so through her testimony and documentary exhibits. The final official search showed the third party was registered as proprietor on 29th August 2017 despite the advanced stage of the Plaintiff's transaction. The court found the Defendant clearly in breach and applied clause 8 of the Sale Agreement, which required the seller to indemnify the buyer against third-party claims. Judgment was entered for the Plaintiff for a refund of Kshs.315,000 with interest from the date of filing suit, together with costs of the suit. Judgment was delivered at Busia on 16th July 2019 by A. K. Kaniaru J, both parties being absent.

Key legal issues

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01

Proof of an uncontroverted claim at formal proof

Holding

The Plaintiff proved her case on a balance of probabilities; interlocutory judgment does not relieve the plaintiff of the evidential burden.

Reasoning

The court noted that despite the case being uncontroverted after interlocutory judgment, the plaintiff still had to prove it. It examined the testimony and exhibits: two sale agreements showing Kshs.315,000 advanced, the Land Control Board consent, the transfer form, and the final official search showing registration of a third party as proprietor on 29th August 2017.

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02

Breach of contract of sale of land

Holding

The Defendant breached the contract by allowing a third party to be registered as proprietor despite the advanced-stage transaction with the Plaintiff.

Reasoning

The evidence showed a sale agreement dated 11th September 2013, a follow-up agreement of 11th November 2013, payment of Kshs.315,000, LCB consent, and a signed transfer form. The search of 6th November 2017 revealed the property had been sold and transferred to Silvanus David Wabwire, registered on 29th August 2017, notwithstanding the prior transaction with the Plaintiff.

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03

Remedy: indemnity under clause 8 of the Sale Agreement

Holding

Clause 8 of the Sale Agreement entitled the buyer to indemnity from the seller upon a third-party claim, supporting a refund of the purchase price.

Reasoning

The court relied on the contractual indemnity clause, which had envisaged the exact situation before it: a third-party claim over the land sold. The Plaintiff, who was evicted after a third party was registered as proprietor, was therefore entitled to a refund of Kshs.315,000 plus interest from the date of filing suit and costs.

p. 2

Legal principles established

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  • Even where a case is uncontroverted, the plaintiff must still prove it on a balance of probabilities to warrant the orders sought
  • A seller who sells land to a third party after an advanced-stage sale to the buyer is in breach and must indemnify the buyer per the agreement's indemnity clause

Court orders

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  1. 1.Judgment entered in favour of the Plaintiff for a refund of Kshs.315,000 with interest from the date of filing suit
  2. 2.Costs of the suit to the Plaintiff
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (suit concerning breach of a contract for sale of land)

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, "Isabella Auma Kubende v Michael Owino Wafula [2019] KEELC 5065 (KLR)", Case Analysis (2019). ELC Case No. 190 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5065/eng@2019-07-16

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