Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment· [2021] KEELC 948 (KLR)

Consoline Atieno Ononia v Samuel Mulera Lukiri [2021] KEELC 948 (KLR)

Environment and Land Court
17 November 2021
AOA. Omollo
1,777 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Busia court ordered a land seller to refund Kshs.170,000 with interest because he never obtained Land Control Board consent for the transfer.

What this practically means

#

Executive summary

#
The plaintiff sued for refund of Kshs.170,000/= comprising Kshs.100,000/= purchase price, Kshs.45,000/= surveyor and related expenses, and Kshs.25,000/= contractual penalty, arising from an agreement dated 18/12/2009 for the sale of a 50ft by 100ft portion of L.R. SAMIA/LUCHULULO-BUKHULUNGU/1596. The suit, initially filed in the Chief Magistrates' Court, was transferred to the Environment and Land Court at Busia. The defendant filed a defence admitting the sale agreement but asserting the plaintiff was in possession and should pursue transfer herself. The defendant failed to attend the hearing despite service, and his defence was not tested. The plaintiff testified with two witnesses: a witness to the agreement and the advocate who drafted it, both corroborating payment of the purchase price in instalments and payment of Kshs.45,000/= to the surveyor in the advocate's office without a receipt. The court framed three issues: breach, entitlement to prayers, and costs. Relying on the principle that courts do not rewrite contracts, and citing Halsbury's measure of damages for a vendor's wrongful refusal to complete as approved by the Court of Appeal, the court found the defendant breached clause 4 of the agreement by failing to obtain Land Control Board consent and facilitate transfer, rendering the agreement void. The default clause entitled the plaintiff to a refund with 5% per annum general damages and expenses. Judgment was entered for the plaintiff for Kshs.170,000/=, costs, and interest at court rates until payment in full.

Key legal issues

#
01

Whether the defendant breached the sale agreement

Holding

The defendant breached clause 4 of the agreement by failing to obtain Land Control Board consent and facilitate subdivision and transfer, rendering the agreement void

Reasoning

The agreement obliged the vendor to attend land control board meetings and sign all forms to effect transfer. The plaintiff's unchallenged evidence, corroborated by PW2 (agreement witness) and PW3 (advocate), showed the defendant never complied. By the time of suit the defendant was still non-compliant, constituting breach.

p. 2
02

Whether the plaintiff was entitled to the prayers sought

Holding

The plaintiff proved her case on a balance of probabilities and was awarded Kshs.170,000/= (purchase price, expenses and the contractual penalty) with costs and interest

Reasoning

The default clause in paragraph 7 provided for refund of purchase price, 5% per annum as general damages, and refund of expenses. The plaintiff's payment of Kshs.100,000/= and Kshs.45,000/= surveyor expenses was corroborated despite lack of receipt, and the damages measure per Halsbury approved in Millicent Perpetua Atieno supports the award.

p. 3

Legal principles established

#
  • Courts do not re-write contracts for parties nor imply terms not agreed
  • Uncontroverted evidence must still be analysed and proved on a balance of probabilities
  • The vendor is obligated to obtain Land Control Board consent and facilitate transfer; failure breaches the agreement

Court orders

#
  1. 1.Refund to the plaintiff of Kshs.170,000/=
  2. 2.Costs of the suit to the plaintiff
  3. 3.Interest on the refund and costs at court rates until payment in full

Authorities

#

Legislation

  • Land Control ActSection 8

Cases cited (2)

  • Rufale Vs Umon Manufacturing Co. (Ramsboltom)
    (1918) L.R 1KB 592
  • Millicent Perpetua Atieno Vas Louis Onyango Otieno
    (2013) eKLR
On appeal from
Chief Magistrates' Court (transferred, not appeal)
Jurisdiction invoked
First-instance suit transferred from the Chief Magistrates' Court by order dated 24th August 2017

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Consoline Atieno Ononia v Samuel Mulera Lukiri [2021] KEELC 948 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/948/eng@2021-11-17

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