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ELCPartially AllowedNot stated in the excerpt· [2022] KEELC 3934 (KLR)

Mburu v Embakasi Ranching Company Limited (Environment and Land Case Civil Suit 176 of 2019) [2022] KEELC 3934 (KLR)

Environment and Land Court
3 August 2022
OMOguttu Mboya
3,620 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 in full for 12 plots but received titles for only 2 won KES 30.5 million because the seller offered no defence.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant for breach of contract arising from the sale of 12 plots carved out of land registered in the Defendant's name. The Plaintiff pleaded that he paid the full purchase price, was given vacant possession, and commenced developments, but the Defendant transferred only 2 of the 12 plots and subsequently sold the balance to third parties. Initially claiming Kshs 27,000,000, the Plaintiff amended the plaint to claim Kshs 30,500,000 based on two valuation reports (April 15, 2019 and October 5, 2020). The Defendant entered appearance and filed a statement of defence but later ceased to participate after its advocates came off record; it filed no amended defence, no witness statement, no documents, and tendered no evidence at the hearing. The court framed two issues: whether the Plaintiff proved breach of contract, and what reliefs ought to be granted. Holding the Plaintiff's unchallenged testimony and exhibits P1 to P37 credible, and applying sections 107, 108 and 109 of the Evidence Act and the balance-of-probabilities standard, the court found the Defendant in breach for failing to transfer 10 of the 12 sold plots without lawful cause. Relying on the unimpeached valuation reports and supporting case law, it accepted the value of the lost plots at Kshs 30,500,000. The court awarded that sum, interest at 14% per annum from May 24, 2019 (the filing date, rather than the pleaded August 2018), and costs to the Plaintiff, to be taxed and certified.

Key legal issues

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01

Proof of breach of contract

Holding

Plaintiff proved breach: defendant sold 12 plots, was paid in full, transferred only 2, and reneged on the remaining 10 without lawful cause

Reasoning

The plaintiff testified and produced exhibits P1 to P37 showing purchase and full payment for 12 plots carved from the defendant's land, vacant possession, and developments. Only 2 titles were issued and the remaining 10 were sold to third parties. The defendant, though served, filed only a statement of defence and tendered no evidence; the plaintiff's testimony and documents were thus uncontroverted, discharging the evidentiary burden under sections 107, 108 and 109 of the Evidence Act.

p. 6
02

Quantum of compensation

Holding

The court adopted the unchallenged valuation reports valuing the 10 lost plots at Kshs 30,500,000

Reasoning

Two valuation reports dated April 15, 2019 and October 5, 2020 valued the 10 plots at Kshs 30,500,000. They were produced and admitted without challenge or impeachment. Relying on Jubilee Insurance v Jiwan and Moses Jomo Olengeben, the court held that in the absence of contrary valuation evidence, uncontroverted expert valuations reflect the accurate value of the properties.

Legal principles established

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  • Unchallenged and uncontroverted evidence satisfies the plaintiff's evidentiary burden on a balance of probabilities
  • An unchallenged valuation report may be relied upon by the court in assessing value in the absence of contrary evidence

Court orders

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  1. 1.The Plaintiff be and is hereby awarded the sum of kes 30,500,000/= only on account of the monetary value of the 10 plots which were neither transferred nor registered in his name by the Defendant
  2. 2.The Plaintiff be and is hereby awarded interest at 14% per annum wef May 24, 2019
  3. 3.Cost of the suit be and are hereby awarded to the Plaintiff and same to be taxed and certified by the taxing officer of this court

Authorities

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Legislation

  • Evidence ActSections 107, 108 and 109

Cases cited (9)

  • Kenya Bruweries Ltd versus Natex Distributers Ltd
    (2004) eKLR
  • Hadly versus Baxendal
    (1854) 9 Exch 341
  • Pius Kimaiyo Langat versus Co-operative Bank of Kenya Ltd
    (2017) eKLR
  • Agnes Nyambura Munga (suing as the Executrix of the Estate of the late William Earl Nelson) v Lita Violet Shepard (sued in her capacity as the Executrix of the Estate of the Late Bryan Walter Shepard)
    [2018] eKLR
  • Miller vs Minister of Pensions
    (1947)
  • Jubilee Insurance Company of Kenya Ltd v Zahir Habib Jiwan & another
    [2017] eKLR
  • Antique Auctions Ltd vs Pan African Auctions Ltd
    [1993] eKLR
  • Kampala City Council v Nakaye S
    (1972) EA 446
  • Moses Jomo Olengeben v Samson Masea & another
    [2010] eKLR
Jurisdiction invoked
Original civil jurisdiction over claims relating to land/plots (Environment and Land Court)

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, "Mburu v Embakasi Ranching Company Limited (Environment and Land Case Civil Suit 176 of 2019) [2022] KEELC 3934 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3934/eng@2022-08-03

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