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ELCPartially AllowedNot stated in judgment (Plaint dated 24/11/1995)· [2022] KEELC 2863 (KLR)

Akal & another v Muigai & 2 others (Environment & Land Case 3440 of 1995) [2022] KEELC 2863 (KLR)

Environment and Land Court of Kenya
8 June 2022
MOMOGENI
4,986 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ordered Umoja II Plot 450/B registered to buyers who had paid for it, ruling unproven fraud claims can't block a valid land sale.

What this practically means

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Executive summary

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This is a first-instance Environment and Land Court decision at Nairobi, delivered by MOGENI J on 8 June 2022, in a 1995 plaint seeking registration of Umoja II Plot No. 450/B in the Plaintiffs' names, restraint of the 3rd Defendant from releasing title documents to others, surrender of title documents, general damages and costs. The Plaintiffs bought the plot from the 2nd Defendant, the intermediate purchaser from the 1st Defendant, paid off city council arrears and the outstanding loan, obtained sale agreements and powers of attorney, but the 3rd Defendant refused to transfer on the 1st Defendant's objection alleging fraud and forgery. The 1st Defendant counterclaimed for eviction and mesne profits, alleging forged signatures and illegal occupation. At the defence hearing on 20/01/2022 no Defendant appeared despite service, leaving the Plaintiffs' evidence uncontroverted; the 1st Defendant also failed to prosecute his counterclaim. The court held that uncontroverted evidence must still meet the balance of probabilities. It found a valid written sale agreement satisfying Section 3(3) of the Contract Act, that fraud must be distinctly pleaded and proved and was not, that no completion notice had issued so the 2nd Defendant passed good title, and that specific performance was the appropriate discretionary remedy, the Plaintiffs having paid Kshs 50,000 and Kshs 14,229 and being in possession since 1992. The court granted orders compelling registration in the Plaintiffs' names, restraining and compelling the 3rd Defendant as sought, declined general damages for want of proof, dismissed the counterclaim by default, and awarded the Plaintiffs the costs of the suit.

Key legal issues

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01

Whether there was a valid contract of sale of the suit property

Holding

The sale agreement between the 2nd Defendant and the Plaintiffs, in writing, signed and containing the essential terms, satisfied Section 3(3) of the Contract Act and was a valid contract

Reasoning

The court examined the sale agreement produced by the Plaintiffs and found it in writing, signed by both parties, containing the parties' names, property description, purchase price and conditions. Citing Nelson Kivuvani v Yuda Komora, it concluded the agreement met the statutory formalities of Section 3(3) of the Contract Act and was enforceable.

p. 6
02

Whether the 1st Defendant's allegations of fraud and forgery were proved

Holding

No - the allegations remained mere allegations as the 1st Defendant failed to appear at the defence hearing, adduce evidence or procure a forensic report

Reasoning

The 1st Defendant pleaded forgery of his signature and collusion between the Plaintiffs and the 2nd Defendant. Applying Vijay Morjaria, the court held fraud must be distinctly pleaded and proved. The 1st Defendant did not appear, called no evidence and produced no forensic report, so the fraud allegations were unproved.

p. 7
03

Whether the 2nd Defendant passed good title despite alleged non-payment

Holding

Yes - no evidence proved non-payment and no completion notice was issued, so the 2nd Defendant was passing a good title

Reasoning

The 1st Defendant alleged the sale became void due to non-completion of payment. The court found no evidence supporting this and no record of a completion notice. Relying on Bernard Alfred Wekesa on the purpose of a completion notice, it held the notice was essential to void the sale and, absent one, the 2nd Defendant passed good title.

p. 8
04

Whether specific performance should be granted

Holding

Yes - there was a valid unvitiated contract, the Plaintiffs had paid the purchase price and been in possession since 1992, and specific performance would cause no hardship

Reasoning

The court found a valid enforceable contract, no fraud or illegality, full payment by the Plaintiffs (Kshs 50,000 and Kshs 14,229 arrears) and possession since 1992 with payment of rates and receipt of rent. Following Mangi v Munyiri and Reliable Electrical Engineers, it exercised its discretion in favour of specific performance as damages were inadequate and no hardship would result.

p. 9
05

Who bears costs

Holding

The Plaintiffs, as successful litigants, are entitled to costs under Section 27 of the Civil Procedure Act

Reasoning

Costs follow the event and no exceptional circumstance existed to displace the general rule that the successful party receives costs.

Legal principles established

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  • An agreement for sale of land containing the parties' names, property number, purchase price, conditions, obligations, and signed and witnessed, amounts to a valid contract
  • Fraud must be specifically pleaded, distinctly alleged and distinctly proved; it cannot be left to be inferred from the facts
  • Specific performance is a discretionary equitable remedy granted on established principles based on the existence of a valid enforceable contract
  • A purchaser must pay or tender the purchase price as a condition precedent to specific performance
  • Even uncontroverted evidence must satisfy the standard of proof on a balance of probabilities before judgment

Court orders

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  1. 1.An order compelling the Defendants to cause the Registration of the property UmojaII 450/4/B in the name of the Plaintiffs
  2. 2.An order restraining the 3rd Defendant from handing over the Documents of Title to any other person apart from the Plaintiffs
  3. 3.An order compelling the 3rd Defendant to surrender documents of title of the said property to the Plaintiffs
  4. 4.The Plaintiffs awarded the costs of the suit

Authorities

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Legislation

  • Contract ActSection 3(3)
  • Constitution of Kenya, 2010Article 40, Article 40(3)
  • Land Control ActSection 6
  • Civil Procedure ActSection 27

Cases cited (10)

  • Shaneebal Limited vs County Government of Machakos
    (2018) eKLR
  • Karuru Munyororo vs Joseph Ndumia Murage & Another
    Nyeri HCCC No. 95 of 1988
  • Nelson Kivuvani vs Yuda Komora & Another
    Nairobi HCCC No.956 of 1991
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • William Kazungu Karisa vs Cosmus Angore Chanzera
    (2006) eKLR
  • Bernard Alfred Wekesa v John Muriithi Kariuki & 2 Others
    HCCC Nairobi 1059 of 1995 [2000] eKLR
  • Kariuki –Vs Kariuki
  • Mangi v Munyiri & Another
    [1991] eKLR
  • Openda v Ahn
    [1984] KLR 208
  • Reliable Electrical Engineers Ltd vs Mantrac Kenya Limited
    (2006) eKLR
Jurisdiction invoked
Original civil jurisdiction over a claim for transfer of land (specific performance); property rights under Article 40 of the Constitution relied upon

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, "Akal & another v Muigai & 2 others (Environment & Land Case 3440 of 1995) [2022] KEELC 2863 (KLR)", Case Analysis (2022). Not stated in judgment (Plaint dated 24/11/1995). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2863/eng@2022-06-08

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