Jeremiah Mepukori Nairowua v Tumbes Ole Roika Katato & another [2021] KEELC 888 (KLR)
The bottom line
#A Kenyan court ordered a land seller to complete a 40-acre sale after he refused to transfer land the buyer had paid for and occupied since 2006.
What this practically means
#Executive summary
#Key legal issues
#Breach of the Agreement of Sale dated 25th January, 2016
The 1st Defendant was in breach, having received Kshs. 80,000 and declined to collect the balance of 10 cows and 50 goats, and having failed to furnish completion documents
The Tribunal proceedings of 2011 confirmed the sale of 40 acres and receipt of consideration. Clause 2 of the 2016 Agreement confirmed receipt of Kshs. 80,000 with the balance being 50 goats and 10 cows. Letters dated 5th February 2016 and 22nd June 2016 showed the stock was ready but the vendor refused to collect and failed to furnish completion documents, amounting to bad faith and breach.
Entitlement to specific performance
Specific performance granted; the Plaintiff had taken possession in 2006 and performed his obligations, and a constructive trust arose
Applying Gurdev Singh Birdi, the Plaintiff performed all his undertakings: he paid Kshs. 80,000 and tendered the livestock balance. Possession since 2006 and double receipt of consideration created a constructive trust. The Defendants tendered no evidence and did not cross-examine, so the Plaintiff's averments stood uncontroverted, justifying the equitable remedy of specific performance.
Extension of time for Land Control Board consent
Time extended for six months to apply for consent to subdivide and transfer
Because the Defendants' delay frustrated completion within the contractual period, the Plaintiff could not apply for Land Control Board consent in time. The court, granting specific performance, necessarily extended time by six months to enable application for consent for subdivision and transfer of the 40 acres pursuant to the Agreement of Sale.
Legal principles established
#- Specific performance requires the plaintiff to show performance of all terms he undertook to perform
- Specific performance is discretionary and founded on a valid enforceable contract; it will not be granted where an adequate alternative remedy exists
Court orders
#- 1.A finding that the 1st Defendant is in breach of the Agreement of Sale dated 25th January, 2016
- 2.The 1st and 2nd Defendants directed forthwith to excise 40 acres from parcel Title No. Kajiado/Elangata Wuas/932 and provide all necessary completion documents to enable transfer of the 40 acres to the Plaintiff
- 3.Time extended for six (6) months to enable the Plaintiff apply to the relevant Land Control Board for subdivision of parcel Kajiado/Elangata Wuas/932 and transfer of the 40 acres
- 4.Should the Defendants fail to comply, the Deputy Registrar, Environment & Land Court, Kajiado at liberty to execute any and all documents necessary for subdivision and conveyance
- 5.Costs of the suit awarded to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (anchored on Articles 2, 4 and 10 of the Constitution as cited by the court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah Mepukori Nairowua v Tumbes Ole Roika Katato & another [2021] KEELC 888 (KLR)", Case Analysis (2021). ELC Case (Kajiado), Amended Plaint dated 28th September, 2020 (originally dated 30th January, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/888/eng@2021-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.