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ELCPartially AllowedEnvironment & Land Case 235 of 2011· [2023] KEELC 18887 (KLR)

Nduruhu & another v Okesa & another

Environment and Land Court
13 July 2023
1,532 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Nairobi court ordered a land vendor to refund KSh 4.7 million after selling the same plot twice, but buyers who plead carelessly may miss out on holding lawyers accountable.

What this practically means

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Executive summary

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The plaintiffs sued the 1st defendant vendor and the 2nd defendant advocate over the sale of Nairobi/Block 110/442, Thome Estate. Under a sale agreement dated November 28, 2008 drawn and witnessed by the 2nd defendant, they agreed to purchase the parcel for ksh.4.7 million and paid the entire price by July 28, 2009, as the 1st defendant acknowledged. They never obtained vacant possession and later discovered the 1st defendant had also purportedly sold the same land to one Lucy Wanjiku Muchiri, in a transaction also apparently witnessed by the 2nd defendant. They sought specific performance or, alternatively, a refund of ksh.4.7 million, with costs and interest, alleging fraud and breach of fiduciary duty. The 1st defendant alleged the contract became a nullity due to the plaintiffs' breach; the 2nd defendant denied the allegations, claiming he too was a victim of the 1st defendant's fraud. Neither defendant called evidence. The court framed a single issue: whether the plaintiffs' claim was merited. It found the plaintiffs proved payment of the full purchase price and that the 1st defendant failed to prove the plaintiffs were in breach. Since the plaintiffs never took possession and the land had apparently been sold to a third party, the court granted the alternative prayer, directing the 1st defendant to refund ksh.4.7 million, with costs and interest at court rates from filing. The 2nd defendant's conduct was condemned as unbecoming of an advocate, but no orders were made against him as none were sought in the final prayers.

Key legal issues

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01

Whether the plaintiffs proved payment of the full purchase price and the 1st defendant's failure to complete

Holding

Yes - the plaintiffs established payment of ksh.4.7 million, acknowledged by the 1st defendant, and the evidence was unrebutted

Reasoning

The 1st plaintiff testified and produced documents; the 1st defendant signed an acknowledgement on July 28, 2009 for the final instalment. Neither defendant called any witnesses despite filing statements of defence, so the plaintiffs' evidence stood unrebutted. The court found the 1st defendant refused to complete and failed to prove the plaintiffs were in breach.

02

Whether specific performance or refund was the appropriate remedy

Holding

Refund of ksh.4.7 million was ordered in the alternative prayer, as possession was never delivered and the land had apparently been sold to a third party

Reasoning

The court noted the plaintiffs never took possession and the suit property had apparently been sold to Lucy Wanjiku Muchiri, as evidenced in pleadings in ELC No. 638 of 2010. Specific performance being impracticable, the alternative prayer for refund was considered reasonable and was granted.

p. 3
03

Liability of the 2nd defendant advocate for drawing and witnessing two sale agreements over the same parcel

Holding

The conduct was condemned as unbecoming of an advocate, but no orders were made against him since none were sought in the final prayers

Reasoning

The court found the 2nd defendant drew and witnessed two separate sale agreements over the same parcel, conduct unbecoming of an advocate. However, the money was received by the 1st defendant, and the final prayers in the plaint sought no specific orders against the 2nd defendant, so no relief was granted against him.

Legal principles established

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  • A vendor who receives the full purchase price but fails to complete the sale, and who cannot prove the purchaser's breach, is liable to refund the purchase price
  • Failure to obtain Land Control Board consent within six months does not necessarily render a transaction void where equity and fairness so require

Court orders

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  1. 1.The 1st defendant is directed to refund the sum of Sh.4.7 million to the plaintiffs
  2. 2.The 1st defendant to pay costs of the suit plus interests thereof at court's rate from the date of filing the suit

Authorities

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Legislation

  • Land Control Actsection 7
  • Constitution of Kenya, 2010article 10

Cases cited (3)

  • Beatrice Mathio Nzioka v Charles Akelo Ong'wen
    [2014] eKLR

    Even if a vendor repudiates the contract of sale, he is obliged to ensure parties are restored to their former position.

  • William Kipsoi Sigei v Kipkoech Arusei & another
    [2019] eKLR

    Consideration paid in the course of a controlled transaction that becomes void under the Land Control Act is recoverable as a debt.

  • Aliaza v Saul
    (Civil Appeal 134 of 2017) [2022] KECA 583 (KLR)

    Failure to obtain Land Control Board consent within six months does not render the transaction void; the Act should not aid a wrongdoer.

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Nairobi/Block 110/442)

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, "Nduruhu & another v Okesa & another", Case Analysis (2023). Environment & Land Case 235 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18887/eng@2023-07-13

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