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ELCPartially AllowedNot stated in judgment (Plaint dated 10th April 2015, Amended 2nd October 2017)· [2022] KEELC 596 (KLR)

Shashikant K. Patel v Thomas Mark Mumo Maingey [2022] KEELC 596 (KLR)

Environment and Land Court
4 April 2022
3,807 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who paid and took possession won a court order forcing the seller to complete the transfer, defeating claims based on a forged lease.

What this practically means

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Executive summary

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The Plaintiff sued for specific performance of two Sale Agreements dated 9th July 2003 and 1st September 2005 for 17.5 acres out of LR No. 1338/4/R, later subdivided as LR No. 1338/111, which he purchased from the Defendant, a co-executor and beneficiary of the estate of Paul Maingey (deceased). He deposited the purchase price with his advocate, took possession and developed the land, but the Defendant failed to subdivide and transfer. The Defendant, by Defence and Counterclaim, alleged the transaction lapsed, that a Lease Agreement of 15th July 2003 governed the land, and sought declarations of trespass, eviction and mesne profits. Only the Plaintiff testified; a forensic expert (PW1) proved the signature on the alleged lease was not the Plaintiff's. The Defendant called no evidence, so the Plaintiff's evidence remained uncontroverted. The court held the suit was not statute barred because the cause of action accrued on 20th November 2014 when the Defendant failed to furnish completion documents, the transaction having been kept alive by correspondence and part payments. Finding the Plaintiff had performed his obligations and that possession created a constructive trust, and anchoring relief on Articles 2, 4 and 10 of the Constitution, the court granted specific performance, with the Deputy Registrar empowered to execute completion documents if the Defendant failed to do so within 90 days, dismissed the counterclaim as founded on a forged lease, and awarded costs to the Plaintiff.

Key legal issues

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01

Limitation - when the cause of action in contract accrues

Holding

The suit is not statute barred; the cause of action accrued on 20th November 2014 when the Defendant failed to furnish completion documents, the transaction having been kept alive by correspondence and part payments

Reasoning

Section 4(1)(a) of the Limitation of Actions Act bars contract actions after six years. The parties' correspondence showed the transaction remained active beyond the completion dates as the Defendant had yet to subdivide the 17.5 acres, and he continued receiving purchase price instalments. The Plaintiff was in possession, and the failure to deliver completion documents arose only on 20th November 2014, within six years of the 2015 suit.

p. 2
02

Entitlement to specific performance

Holding

Specific performance granted; the Plaintiff performed his obligations, paid most of the purchase price and took possession, while the Defendant failed to subdivide and transfer

Reasoning

The Plaintiff paid Kshs. 7,435,099.20 of the Kshs. 8,000,000 purchase price, held the balance in his advocate's custody, and took possession and developed the 17.5 acres. A forensic expert proved the alleged Lease Agreement was forged. The Defendant failed to subdivide and deliver completion documents, and adduced no evidence. Possession created a constructive trust binding the Defendant; the court anchored relief on Articles 2, 4 and 10 of the Constitution.

p. 4
03

The Counterclaim

Holding

Counterclaim dismissed; the alleged Lease Agreement of 15th July 2003 is a forgery and the Defendant's assertions were uncontroverted by any evidence

Reasoning

The Defendant, despite filing a Defence and Counterclaim alleging the sale was converted into a lease, called no witness. PW1, a forensic expert, proved the signature on the alleged lease was not the Plaintiff's. With no evidence to support the defence or counterclaim, the Plaintiff's evidence remained uncontroverted and the prayers for eviction and mesne profits necessarily fail.

p. 4
04

Effect of failure to adduce evidence

Holding

Where a defendant files a defence but calls no evidence, the plaintiff's evidence remains uncontroverted

Reasoning

Relying on Janet Kaphiphe Ouma v Marie Stopes International (Kenya) citing Edward Muriga v Nathaniel D. Schulter, and the decisions in Interchemie EA Limited and Linus Nganga Kiongo, the court held that assertions in a defence unsupported by testimony cannot displace sworn unchallenged evidence, particularly where a counterclaim requires proof by the party asserting it.

p. 3

Legal principles established

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  • A cause of action in contract arises from breach of the contract, not at the time the contract is executed
  • A plaintiff seeking specific performance must show performance of all terms he undertook to perform
  • A party who files a defence but adduces no evidence leaves the plaintiff's evidence uncontroverted
  • Rights of a person in possession of land are equitable rights binding on the land

Court orders

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  1. 1.An order of Specific Performance compelling the Defendant to complete the transfer of 17.5 acres (now Land Parcel Number 1338/111) to the Plaintiff
  2. 2.In default of compliance within Ninety (90) days, the Deputy Registrar of the Environment and Land Court, Machakos to execute all necessary documents required to complete the transfers, including the Land Control Board application
  3. 3.Costs of the suit awarded to the Plaintiff
  4. 4.Counterclaim dismissed

Authorities

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Legislation

  • Limitation of Actions Actsection 4(1)(a)
  • Limitation of Actions Actsection 18 (as referred to in Peter Mbiri Michuki quote)
  • Constitution of KenyaArticles 2, 4 and 10

Cases cited (18)

  • Diana Katumbi Kioo V Reuben Musyoka Muli
    (2018) eKLR
  • Charles Karaithe Kiarie & 2 Others V Administrators of the Estate of John Wallace (Deceased) & 5 Others
    (2013) eKLR
  • Caltex Oil Kenya Limited V Rono Limited
    (2016) eKLR
  • Sun Sand Dunes Limited V Raiya Construction Limited
    (2018) eKLR
  • Fidelity Commercial Bank Limited v Kenya Grange Vehicle Industries Limited
    (2007) eKLR
  • Samuel Ngige Kiarie V Njoramu Construction Company Limited & Another
    (2019) eKLR
  • National Bank of Kenya V Pipe Plastic Samkolit (K) Limited & Another
    (2019) eKLR
  • Adopt A Light Limited V Ochieng Onyango Kibet & Ohaga Advocates
    (2016) eKLR
  • Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya)
    Kisumu HCCC No. 68 of 2007
  • Edward Muriga through Stanley Muriga vs. Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Interchemie EA Limited vs. Nakuru Veterinary Centre Limited
    Nairobi (Milimani) HCCC No. 165B of 2000
  • Linus Nganga Kiongo & 3 Others v. Town Council of Kikuyu
    (2012) eKLR
  • Robert Kiptanui Kitur v Jackson Kiprotich Kitur
    [2022] eKLR
  • Diana Katumbi Kiio V Reuben Musyoki Muli
    [2018] eKLR
  • Gurdev Singh Birdi & Marinder Singh Ghatora vs. Abubakar Madhubuti
    Civil Appeal No. 165 of 1996
  • Thrift Homes Ltd V. Kenya Investment Ltd
    2015 eKLR
  • Peter Mbiri Michuki Vs Samuel Mugo Michuki
    [2014] eKLR
  • Mwangi & Another vs Mwangi
    (1986) KLR 328
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim for specific performance of agreements for sale of land

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, "Shashikant K. Patel v Thomas Mark Mumo Maingey [2022] KEELC 596 (KLR)", Case Analysis (2022). Not stated in judgment (Plaint dated 10th April 2015, Amended 2nd October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/596/eng@2022-04-04

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