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ELCAllowed· [2024] KEELC 3855 (KLR)

Lewa (Suing As Legal Representative Of Tsuma Walewa Musolo) v Mwangi (Environment and Land Case Civil Suit 124 of 2015) [2024] KEELC 3855 (KLR)

Environment and Land Court
24 April 2024
3,461 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kilifi land seller won full judgment after the buyer skipped testifying, showing courts treat unproven defences as worthless.

What this practically means

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Executive summary

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The plaintiff sued by a plaint dated 28th April 2014 (amended 18th March 2021) seeking termination of a sale agreement dated 24th February 2009 over one acre to be curved out of Kilifi/Mtwapa/1709, now Kilifi/Mtwapa/3135; surrender of completion documents including the title deed; a permanent injunction against the defendant's developments and occupation; and Kshs. 366,000/- being the balance of the purchase price for Kilifi/Mtwapa/1608 and 1609. The plaintiff testified that only Kshs. 100,000/- of the Kshs. 630,000/- price was paid, that completion documents were lodged with the defendant's advocate, and that he rescinded the agreement by letter dated 16th March 2014 and refunded the deposit. The defendant filed a defence asserting the plaintiff breached the agreement by failing to survey, subdivide and execute transfers, and that no 21-day completion notice under clause 4(7) of the LSK Conditions was issued, but he did not testify; his counsel only made submissions on unproduced documents. Applying Nkuene Daily Farmers and Gateway Insurance, E. K. Makori, J held that untested pleadings count for nothing, leaving the plaintiff's evidence uncontroverted and proved on a balance of probabilities. The court found the agreement effectively terminated, allowed the liquidated claim of Kshs. 366,000/- for the 1608 and 1609 parcels, and entered judgment accordingly on 24th April 2024, with the orders for surrender of documents, a permanent injunction, the liquidated sum with interest from 19th March 2021, and costs with interest to the plaintiff.

Key legal issues

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01

Effect of defendant's failure to testify or produce evidence

Holding

The defence remained untested; the plaintiff's evidence stood uncontroverted and proved on a balance of probabilities

Reasoning

The defendant filed a defence and witness statement but did not attend court to testify. His counsel only made submissions based on documents never produced as exhibits or subjected to cross-examination. Relying on Nkuene Daily Farmers and Gateway Insurance, the court held such material counts for nothing, so the plaintiff's claim that the defendant breached the agreement was proved.

p. 6
02

Termination of the sale agreement of 24th February 2009

Holding

The agreement was effectively terminated; the plaintiff rescinded pursuant to the LSK Conditions of Sale after the defendant failed to pay the balance

Reasoning

It was common ground that a one-acre parcel was sold for Kshs. 630,000/- with only Kshs. 100,000/- paid. The special conditions made time of the essence, so the Law Society Conditions of Sale (1989) applied. The plaintiff completed the subdivision, forwarded completion documents to the defendant's advocate, issued a rescission notice and refunded the deposit, entitling him to termination.

p. 1
03

Claim for Kshs. 366,000/- balance for Kilifi/Mtwapa/1608 and 1609

Holding

The liquidated claim was proved; judgment entered for the plaintiff with interest from 19th March 2021

Reasoning

The amended plaint introduced the claim for the unpaid balance under an agreement dated 27th February 2008, introduced with leave granted on 6th May 2020. The plaintiff produced the agreement and green cards showing transfer to the defendant. The defendant did not controvert the claim either by evidence or otherwise, so it stood as a proved liquidated sum.

p. 6

Legal principles established

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  • Courts do not rewrite contracts or rescue parties from bad bargains; parties are bound by the terms of their contracts
  • A party who does not adduce evidence leaves his pleadings as mere averments, and the opposing evidence stands uncontroverted

Court orders

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  1. 1.A declaration that the agreement of sale dated 24th February 2009 in respect of one acre curved out of Kilifi/Mtwapa/1709, now Kilifi/Mtwapa/3135, has been effectively terminated
  2. 2.An order compelling the defendant to unconditionally surrender and hand over all original completion documents, in particular the title deed in respect of Kilifi/Mtwapa/3135
  3. 3.A permanent injunction restraining the defendant and those claiming under him from developing, constructing or occupying the suit property
  4. 4.Judgment for the plaintiff for Kshs. 366,000/- with interest reckoned from 19th March 2021
  5. 5.Costs of the suit to the plaintiff with interest at court rates

Authorities

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Legislation

  • Law Society Conditions of Sale (1989 edition)clause 9; clause 4(7); condition 11
  • Evidence ActSections 107 and 108

Cases cited (21)

  • Nkuene Daily Farmers Co-op Society Limited & Another v Ngacha Ndeiya
    [2010] eKLR
  • CopyCat Limited v Mumias Sugar Limited
    [2019] eKLR
  • Gateway Insurance Co Limited v Jamila Suleiman & Another
    [2018] eKLR
  • Curtis v Cleaning & Dyeing Co. Ltd
    [1951] ALL ER 631
  • RTS Flexible Systems Ltd v Milkorei Alis Muller GmbH & Co. KG (UK) Production
    [2010] UKSC14
  • County Government of Migori v Hope Self Help Group
    [2020] eKLR
  • Stickney v Keeble
    1915 AC 356
  • Housing Company of Kenya Ltd v Board of Trustees National Social Security Fund & 2 Others
    [2018] eKLR
  • Njamunyu v Nyaga
    [1983] KLR 282
  • Mark Otanga Otiende v Dennis Oduor Aduol
    [2021] eKLR
  • National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd & another
    [2001] eKLR
  • Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd
    [2017] eKLR
  • Housing Finance Co. of Kenya Limited vs. Gilbert Kibe Njuguna
    Nairobi HCCC No. 1601 of 1999
  • Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No. 834 of 2002
  • Autar Singh Bahra And Another vs. Raju Govindji
    HCCC No. 548 of 1998
  • Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others
    Nairobi (Milimani) HCCS No. 1243 of 2001
  • Karuru Munyororo vs. Joseph Ndumia Murage & Another
    Nyeri HCCC No. 95 of 1988
  • Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya)
    Kisumu HCCC No. 68 of 2007
  • Edward Muriga Through Stanley Muriga vs. Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Interchemie EA Limited vs. Nakuru Veterinary Centre Limited
    Nairobi (Milimani) HCCC No. 165B of 2000
  • Britestone Pte Ltd vs Smith & Associates Far East Ltd
    [2007] 4 SLR (R) 855
Jurisdiction invoked
Original civil suit on sale of land before the Environment and Land Court (specific provision not stated in the judgment)

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, "Lewa (Suing As Legal Representative Of Tsuma Walewa Musolo) v Mwangi (Environment and Land Case Civil Suit 124 of 2015) [2024] KEELC 3855 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3855/eng@2024-04-24

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