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ELCDismissedEnvironment & Land Case E015 of 2021· [2023] KEELC 20850 (KLR)

Railways Housing Cooperative Society Limited v Thuo t/a Cossy Homes Commercial Agency Limited & another

Environment and Land Court
18 October 2023
ANA. Nyukuri
2,634 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a housing cooperative's bid to force its sales agent to release 45 land titles because their contracts never required it.

What this practically means

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Executive summary

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The Plaintiff, a housing cooperative, sued by Originating Summons seeking an order of specific performance compelling the Defendants, trading as Cossy Homes Commercial Agency Limited, to deliver 45 original titles and completion documents for plots in Kitengela (L.R Nos 42702, 87277, 75182 and 89846), together with costs. The Plaintiff claimed it acted as the Defendants' sales agent under agency agreements dated 9th January 2011, 16th December 2015 and 14th October 2016, earning 5% commission per sale plus 3% of total sales for marketing expenses; that it effected sales worth Kshs 128,254,886 and was owed Kshs 6,761,505 in unpaid commissions; and that it held Kshs 9,088,000 for 55 titles of which only 10 had been released. The Defendants did not enter appearance despite service, and the matter proceeded by viva voce evidence of PW1, Francis Waweru Kamau, the Plaintiff's chairman. The court framed two issues: validity of the contract and entitlement to specific performance. It found valid agency contracts existed, but on examining the agreements held there was no clause obligating the Defendants to release titles to the Plaintiff, whose role was limited to procuring purchasers and showing boundaries. No breach of contract was therefore demonstrated, and the Plaintiff failed to prove its case on a balance of probabilities even though the suit was undefended. The suit was dismissed with no order as to costs.

Key legal issues

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01

Validity of the agency contracts

Holding

Valid agency contracts existed authorizing the Plaintiff to sell plots at 5% commission plus 3% for expenses

Reasoning

The court applied Section 2 of the Law of Contract Act and common law elements of offer, acceptance, intention and consideration. Three similar signed agency agreements were produced showing authorization to sell plots at agreed commissions, satisfying the court that valid contracts existed.

p. 4
02

Entitlement to specific performance for delivery of 45 titles

Holding

Specific performance refused; the contracts contained no clause requiring the Defendants to release titles, so no breach was proved

Reasoning

Although the contracts were valid, the court found the Plaintiff's contractual role limited to procuring purchasers and showing boundaries. There was no contractual obligation on the Defendants to release original titles and completion documents, hence no breach and no basis for specific performance. The Plaintiff also failed to prove its case on a balance of probabilities.

p. 5

Legal principles established

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  • Even in an undefended suit, the burden of proof remains on the plaintiff to tender sufficient evidence
  • Specific performance is an equitable remedy granted where there exists a valid contract and damages would be inadequate

Court orders

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  1. 1.The plaintiff's Originating Summons is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Law of Contract ActSection 2 (Cap 23)
  • Evidence ActSection 107

Cases cited (5)

  • Stancom Sacco Society Ltd v Alliance One Tobacco Limited
    [2018] eKLR

    That to create a contract there must be a common intention

  • Gateway Insurance Co. Ltd vs Jamila Suleiman & Another
    [2018] eKLR

    That uncontroverted evidence must still be weighed; no iota of evidence to controvert

  • Reliable Electrical Engineers Ltd vs Mantrac Kenya Limited
    (2006) eKLR

    Considerations for specific performance: valid contract, adequacy of damages, hardship

  • Gharib Suleman Gharib v Abdulrahman Mohamed Agil
    LLR No. 750 (CAK) Civil Appeal No. 112 of 1998

    Jurisdiction to order specific performance based on valid enforceable contract where damages insufficient

  • Mercy Wanjiru Nyaga v Josphat Kiura & Another
    [2020] eKLR

    A suit cannot be allowed merely because unopposed; plaintiff must tender sufficient evidence

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land contracts and titles (Article 162(2)(b) Constitution)

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, "Railways Housing Cooperative Society Limited v Thuo t/a Cossy Homes Commercial Agency Limited & another", Case Analysis (2023). Environment & Land Case E015 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20850/eng@2023-10-18

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