Aquillinah Nafula Wanjala v Joy Adhiambo Omondi & another [2020] KEELC 1715 (KLR)

The plaintiff proved purchase of the suit land from the 1st defendant via a written sale agreement and registration. The 2nd defendant vacated on 31st August 2017, leaving only the liquidated claim for expenses. The court would have entered summary judgment but for the 2nd defendant's plea that the loss was occasioned by the plaintiff's own ignorance, which required consideration of whether the case was proved. The plaintiff produced the sale agreement, notice to vacate, arbitration agreement, accounts and receipts, and the defendants' breach of the agreement to surrender vacant possession was established.

The 2nd defendant pleaded that the suit land was registered in the name of the deceased Margaret Mirani Omondi, making the 1st defendant's transaction unlawful. However, the plaintiff produced a certificate of search showing the 1st defendant as registered owner from 12th January 2016, before the May 2016 sale. The burden therefore shifted to the 2nd defendant to prove that the 1st defendant's acquisition was unlawful for want of letters of administration, which burden the 2nd defendant failed to discharge.

It was a condition of the sale agreement that the 1st defendant surrender vacant possession. The 2nd defendant, a sister-in-law of the 1st defendant, remained on the land despite notice to vacate and an arbitration agreement, only moving out on 31st August 2017. This delay caused the plaintiff to incur arbitration costs, rent for alternative accommodation and travelling expenses. The 1st defendant filed no defence, and interlocutory judgment had been requested against her.