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ELCAllowedELC Case No. 169 of 2013· [2021] KEELC 4164 (KLR)

Peter Githinji Ngubiru & 3 others v Solomon Ireri Gachewa [2021] KEELC 4164 (KLR)

Environment and Land Court
18 February 2021
LKL. Komingoi
1,899 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The four plaintiffs sued the defendant, the registered proprietor of LR No. 14969/6 Kasarani (IR 53892), under sale agreements dated between September 1999 and January 2000 for the purchase of plots within the parcel. They paid the full purchase price, took possession and developed their respective plots, but the defendant failed to obtain the necessary consents and approvals to subdivide the property and to transfer or process titles in their favour. They sought a permanent injunction restraining the defendant from charging or transferring the parcel to third parties, surrender of the original title and subdivision documents, and orders for execution of transfers. The defendant filed a defence admitting the agreements but asserting he had obtained planning approval subject to two conditions (impeded by the absence of a sewer line) and had not breached the agreements; however, he failed to attend the hearing, and the matter proceeded ex parte after the court declined an adjournment. PW1 testified and produced the transfer instrument, sale agreements, payment receipts and title. The court, applying the principle that clear contractual terms must be applied, found the defendant bound by clause 4 of the agreements and in breach for failing to obtain clearances and facilitate subdivision since 2000. Applying authority that specific performance is available to a party who has performed his side of the bargain, the court entered judgment for the plaintiffs on a balance of probabilities: a permanent injunction against charging or transferring the parcel, surrender of the original title and subdivision documents, execution of transfers within 120 days in default of which the Deputy Registrar would execute them, and costs to the plaintiffs.

Key legal issues

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01

Breach of the sale agreements

Holding

The defendant was in breach of clause 4 of the sale agreements by failing to obtain all necessary consents, approvals and clearances to subdivide the suit property and transfer the plots to the plaintiffs.

Reasoning

The agreements clearly obligated the defendant to obtain all necessary clearances and facilitate subdivision and transfer. Although subdivision approval was granted by the Nairobi City Council on two conditions, the defendant never complied with those conditions since the year 2000. The defence was uncontroverted as the defendant failed to attend court to testify, so his failure to fulfil the express terms amounted to breach.

p. 2
02

Entitlement to specific performance and injunction

Holding

The plaintiffs, having paid the full purchase price and taken possession and developed their portions, were entitled to specific performance and a permanent injunction protecting their quiet possession.

Reasoning

Specific performance is an equitable remedy granted at the court's discretion where the claimant has performed his side of the bargain. The plaintiffs demonstrated payment of the full purchase price and possession of their respective portions. Their case being uncontroverted, the court found them entitled to quiet possession and granted an injunction restraining charging or transfer of the property to third parties.

p. 3

Legal principles established

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  • A party who has performed his obligations under a clear and unambiguous contract is entitled to an order of specific performance.
  • Where express terms of a contract are clear and unambiguous, the court must apply them and will not make or improve the contract for the parties.

Court orders

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  1. 1.Permanent injunction restraining the defendant, his servants and/or agents from charging and transferring land parcel number LR 14969/6, Kasarani to any person other than the plaintiffs
  2. 2.Defendant ordered to surrender to the plaintiffs the original title No. IR 53892 for LR No. 14969/6 Kasarani together with the approved subdivision plans, all relevant consents and approvals, receipts and transfer with stamp duty duly paid, deed plans and clearance certificates
  3. 3.Defendant ordered to execute transfers for the sub-divided plots in favour of the plaintiffs within 120 days, in default the Deputy Registrar to execute such transfers
  4. 4.Plaintiffs awarded costs of the suit

Authorities

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Cases cited (3)

  • Attorney General of Belize et al vs Belize Telecom Ltd & Another
    [2009] 1 WLR 1980
  • Trollope Colls Ltd vs North West Metropolitan Regional Hospital Board
    [1973] 1 WLR 601
  • Andrew Karemi Kingori vs Joseph Waweru Njoroge
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to land parcel LR No. 14969/6 Kasarani

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 Githinji Ngubiru & 3 others v Solomon Ireri Gachewa [2021] KEELC 4164 (KLR)", Case Analysis (2021). ELC Case No. 169 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4164/eng@2021-02-18

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