Mawingo Construction 2010 Limited v Mombasa Water Products Limited (Environment & Land Case 288 of 2014) [2024] KEELC 5253 (KLR)
The bottom line
#Mombasa's Environment and Land Court ordered Mawingo Construction to pay Mombasa Water Products over Kshs. 60 million after failing to complete a land purchase or defend the case in court.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure by a party to adduce evidence in defence of a counter-claim
The Plaintiff/Defendant in the Counter-Claim called no evidence; its defence remained mere allegations and the Counter-Claimant's evidence stood uncontroverted and was believed
Relying on Motex Knitwear v Gopitex Knitwear, CMC Aviation v Crusair and North End Trading v City Council of Nairobi, the court held that pleadings are not evidence. The Plaintiff's defence to the counter-claim, not being supported by any testimony, could not be relied upon, and the Counter-Claimant's unchallenged testimony was accepted as proving the claim on a balance of probabilities.
Compliance of the sale agreement with Section 3(3) of the Law of Contract Act and Section 38 of the Land Act
The agreement for sale dated 23rd December 2011 was in writing, signed by the parties, contained the parties' names, property description, price and conditions, and was therefore a valid and enforceable contract
The court perused the agreement and found it met the statutory formalities for dispositions of land. Following Nelson Kivuvani v Yuda Komora, an agreement containing the parties, property, price and conditions, signed and witnessed, amounts to a valid contract. The addendums executed with the non-existent Mawingo Construction Company Limited, however, were declared nullities.
Breach of the sale agreement and entitlement to reliefs
The Defendant in the Counter-Claim was in breach by failing to complete payment of the purchase price; the Counter-Claimant was awarded damages of 25% of the purchase price, the balance with interest, mesne profits, special damages, injunctive and declaratory reliefs
The court found the Counter-Claimant proved the contract, possession taken, and non-payment of the outstanding balance. Applying Reliable Electrical Engineers v Mantrac Kenya, specific performance was declined as damages were adequate, but damages of 25% of the purchase price, mesne profits at Kshs. 300,000 per month, and proved special damages were awarded since parties are bound by the terms of the contract they signed.
Legal principles established
#- Pleadings are not evidence; a party which fails to adduce evidence in support of its pleadings leaves them as mere allegations and the opposing evidence stands unchallenged
- A contract for the disposition of an interest in land must comply with Section 3(3) of the Law of Contract Act - be in writing, signed by all parties, and the signatures attested by a witness
- Special damages must be specifically pleaded and strictly proved with as much particularity as circumstances permit
- Specific performance is a discretionary equitable remedy granted only on well-laid principles and will be refused where damages are an adequate alternative or where it would cause severe hardship
- A person wrongfully deprived of occupation of property is entitled to mesne profits for the period of wrongful occupation
- Costs follow the event under Section 27(1) of the Civil Procedure Act
Court orders
#- 1.Judgment entered in favour of the Plaintiff in the Counter-Claim (Mombasa Water Products Limited) against the Defendant in the Counter-Claim in terms of the Amended Counter-Claim dated 12th April, 2022 in its entirety
- 2.The Plaint dated 17th November, 2014 by the Plaintiff in the Counter-Claim dismissed with costs
- 3.General damages for breach of contract of Kshs. 16,750,000/- (25% of the purchase price of Kshs. 67,000,000/-) awarded to the Plaintiff in the Counter-Claim
- 4.Immediate payment of Kshs. 33,659,000/- being the balance of the purchase price plus interest at 19.210% p.a. from 6th June 2015 to June 2019 and 14.470% from July 2019 until full repayment
- 5.The Defendant in the Counter-Claim to forthwith and unconditionally hand over original certificates of title and duly executed transfers for plot Nos. 4519, 4520, 4521, 4522, 4523, 4524, 4525, 4526, 4527, 4531, 4532, 4533, 4534, 4535, 4536, 4537, 4538, 4539, 4544, 4545, 4546, 4552, 4553 and 4470
- 6.General damages by way of mesne profits at Kshs. 300,000/- per month from July 2012 to the date of judgment, with interest at court rates from the date of judgment until payment in full
- 7.Mandatory injunction directing the Defendant in the Counter-Claim to vacate and render vacant possession of plot Nos. 4519, 4520, 4521, 4522, 4523, 4524, 4525, 4526, 4527, 4531, 4532, 4533, 4534, 4535, 4536, 4537, 4538, 4539, 4544, 4545, 4546, 4552, 4553 and 4470
- 8.Payment of Kshs. 2,091,000/- being total expenses incurred by the Plaintiff in the Counter-Claim on behalf of the Defendant
- 9.Payment of Kshs. 850,000/- being agreed consideration for Plot No. 4470/VI/MN with interest from December 2012 and interest at court rate from the date of the counter-claim
- 10.Special damages of Kshs. 7,200,060/- awarded for rectifying damage caused by storm water drainage
- 11.Order directing the Defendant to stop draining storm water on plots MN/VI/4486, MN/VI/4487, MN/VI/4488, MN/VI/4489 and MN/VI/4490
- 12.Declaration that the addendums dated 15th March 2012, 10th September 2013 and 30th July 2012 are null and void for all purposes
- 13.Order directing the Defendant to forthwith release the original titles for plot nos. 4469, 4473, 4476, 4484, 4490, 4505, 4506, 4507 and 4509/VI/MN to the Plaintiff in the Counter-Claim
- 14.Costs of the Amended Counter-Claim and the dismissed Plaint awarded to the Plaintiff in the Counter-Claim, to be paid jointly and severally
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit land situate within Mombasa County; no specific constitutional provision invoked by the court for its jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mawingo Construction 2010 Limited v Mombasa Water Products Limited (Environment & Land Case 288 of 2014) [2024] KEELC 5253 (KLR)", Case Analysis (2024). ELC No. 288 of 2014 (Formerly Mombasa High Court Civil Suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5253/eng@2024-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.