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ELCPartially AllowedELC Case No. 125 of 2020· [2021] KEELC 553 (KLR)

Peter Mbuthia Karoki v John Nganga Kibe [2021] KEELC 553 (KLR)

Environment and Land Court
11 November 2021
EOE.O. Obaga
423 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered a land buyer to pay the Kshs 2.7 million balance owed, but refused to force completion of the sale because he already occupied and developed the property.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant for specific performance of a sale agreement dated 18th March 2019 over LR No. Nairobi Block 126/498, payment of the balance of the purchase price, interest, and general damages. The agreed price was Kshs.10,000,000/=, payable within 90 days. The Defendant paid Kshs.1,500,000/= on execution and a further Kshs.5,800,000/=, took possession of the property, and constructed residential houses from which he earns income, but refused to pay the balance despite demand. The Defendant was duly served but neither entered appearance nor filed a defence, so the suit proceeded by formal proof. The Plaintiff produced the certificate of lease and the sale agreement, and acknowledged receipt of Kshs.7,300,000/=, leaving Kshs.2,700,000/= outstanding. The court found the claim proved but declined specific performance because the Defendant was already in possession and had developed the property; the only viable relief was monetary. Judgment was entered for the Plaintiff for Kshs.2,700,000/= with interest at court rates from 1st July 2019 until payment in full, plus costs of the suit. The claim was thus partially allowed: the balance and interest were granted, while specific performance and general damages were refused. The judgment was signed and delivered at Eldoret on 11th November 2021 notwithstanding the Nairobi heading, in the virtual absence of parties who had been notified of the delivery date.

Key legal issues

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01

Proof of the sale agreement and outstanding balance

Holding

The Plaintiff proved the agreement dated 18th March 2019 for Kshs.10,000,000/= and receipts totalling Kshs.7,300,000/=, leaving Kshs.2,700,000/= outstanding

Reasoning

In formal proof the Plaintiff produced the certificate of lease for LR No. Nairobi Block 126/498 and the sale agreement showing payment of the price within 90 days. He acknowledged receipt of Kshs.7,300,000/=, leaving a balance of Kshs.2,700,000/=. The unchallenged evidence established the debt.

p. 1
02

Whether specific performance could issue

Holding

Specific performance was refused because the Defendant had taken possession and developed the property

Reasoning

The court held that since the Defendant had taken possession of the suit property and constructed residential houses earning income from them, an order of specific performance would serve no purpose; the effective relief is payment of the outstanding balance.

p. 1

Legal principles established

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  • Where the purchaser has taken possession and developed the property, specific performance is not the appropriate remedy and monetary recovery of the balance suffices

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendant in the sum of Kshs.2,700,000/=
  2. 2.Interest on the sum at court rates with effect from 1st July 2019 until payment in full
  3. 3.Plaintiff awarded costs of the suit
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property LR No. Nairobi Block 126/498

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, "Peter Mbuthia Karoki v John Nganga Kibe [2021] KEELC 553 (KLR)", Case Analysis (2021). ELC Case No. 125 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/553/eng@2021-11-11

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