Nduruhu & another v Okesa & another
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiffs proved payment of the full purchase price and the 1st defendant's failure to complete
Yes - the plaintiffs established payment of ksh.4.7 million, acknowledged by the 1st defendant, and the evidence was unrebutted
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.
Whether specific performance or refund was the appropriate remedy
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
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.
Liability of the 2nd defendant advocate for drawing and witnessing two sale agreements over the same parcel
The conduct was condemned as unbecoming of an advocate, but no orders were made against him since none were sought in the final prayers
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
#- 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
#- 1.The 1st defendant is directed to refund the sum of Sh.4.7 million to the plaintiffs
- 2.The 1st defendant to pay costs of the suit plus interests thereof at court's rate from the date of filing the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Nairobi/Block 110/442)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.