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ELCAllowedLand Case No. 33 of 2022· [2024] KEELC 7060 (KLR)

Ray Power Limited & another v Richmond Company Limited & another (Land Case 33 of 2022) [2024] KEELC 7060 (KLR)

Environment and Land Court
22 October 2024
7,320 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Mombasa court ordered sellers to complete a land sale they tried to abandon, awarding the buyers ownership, an injunction, and full legal costs.

What this practically means

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Executive summary

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The Environment and Land Court at Mombasa, per L.L. Naikuni J, delivered judgment on formal proof after the defendants, despite substituted service by newspaper publication under Order 5 Rule 17 of the Civil Procedure Rules, neither entered appearance nor filed a defence. The plaintiffs, Ray Power Limited and its director Hussein Hassan Amin, sued over the sale of land parcel MMS/BLOCK V/49 under a sale agreement dated 27th January 2017 at Kshs. 32,800,000, later varied on 12th October 2017 to Kshs. 27,000,000. They proved payment of over Kshs. 12 million towards the purchase price through their advocates, took vacant possession, and held executed but unregistered transfer documents held by the conveyancing advocates. The court framed three issues: validity and breach of the agreement, entitlement to the reliefs sought, and costs. It held the agreement satisfied Section 3(3) of the Law of Contract Act and Section 38 of the Land Act, and that the plaintiffs' uncontroverted evidence proved breach on a balance of probabilities. Relying on Reliable Electrical Engineers v Mantrac Kenya Ltd, the court found specific performance appropriate since the plaintiffs had performed their obligations and no adequate alternative remedy existed. Judgment was entered as pleaded: a permanent injunction restraining the defendants from dealing with the property, an order of specific performance of the varied sale agreement, a declaration that the suit property belongs to the plaintiffs, and costs to the plaintiffs, payable by the defendants jointly and severally.

Key legal issues

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01

Validity of the sale agreement for land and its breach

Holding

The duly executed and attested sale agreement and deed of variation complied with Section 3(3) of the Law of Contract Act and Section 38 of the Land Act; the Plaintiffs performed their obligations and the Defendants breached the agreement by failing to complete the transfer.

Reasoning

The court noted that dispositions of land must comply with the writing and attestation requirements of Section 3(3) of the Law of Contract Act and Section 38 of the Land Act. The executed sale agreement, variation agreement, cheques and deed of acknowledgement were produced and uncontroverted. The defendants never entered appearance despite substituted service, so the plaintiffs' evidence stood unchallenged, proving payment of substantial consideration and the defendants' failure to furnish completion documents or execute transfers.

p. 12
02

Whether the Plaintiffs are entitled to specific performance, permanent injunction and declaration of ownership

Holding

Specific performance was granted as the Plaintiffs performed their obligations, no adequate alternative remedy existed and no hardship was shown; the court declared the Plaintiffs bona fide owners and granted a permanent injunction under Sections 24, 25 and 26 of the Land Registration Act.

Reasoning

Relying on Reliable Electrical Engineers v Mantrac Kenya Ltd, the court applied the settled principles that specific performance is discretionary and premised on a valid enforceable contract. The Plaintiffs paid the deposit and consideration, held possession, and offered to deposit the balance in court. With the claims uncontroverted, the court declared the Plaintiffs bona fide owners whose indefeasible rights under the Land Registration Act justified a permanent injunction.

p. 13

Legal principles established

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  • In a formal proof hearing, a plaintiff must still satisfy the court on the truth of its claim; uncontroverted evidence must meet the balance of probabilities standard.
  • Courts cannot rewrite contracts for parties or imply terms not agreed.
  • Costs follow the event and the successful party is ordinarily entitled to costs.

Court orders

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  1. 1.Judgment entered in favour of the Plaintiffs as pleaded in the Plaint dated 22nd March, 2022
  2. 2.Permanent injunction restraining the Defendants, their agents and servants from subdividing, leasing, selling, disposing of or interfering with the Plaintiffs' rights to property MMS/BLOCK V/49
  3. 3.Order of specific performance of the Sale Agreement dated 27th January, 2017 as varied on 12th October, 2017
  4. 4.Declaration that the suit property belongs to the Plaintiffs
  5. 5.Costs of the suit borne by the 1st and 2nd Defendants jointly and severally and awarded to the Plaintiffs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 5 Rule 17; Order 6; Order 7; Order 10 Rules 4, 5, 6 & 8; Order 11
  • Companies ActCap. 486
  • Evidence ActSections 107, 109 and 112
  • Law of Contract ActSection 3(3)
  • Land ActSections 38(1) and (2), 39, 41
  • Land Registration ActSections 24, 25 and 26
  • Civil Procedure ActSection 27(1)
  • Constitution of Kenya, 2010not specified

Cases cited (21)

  • Stanley Maira Kaguongo v Isaac Kibiru Kinuthia
    (2022) eKLR
  • Gateway Insurance Co. Limited v Jamila Suleiman & another
    (2018) eKLR
  • Motex Knitwear Limited v Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No. 834 of 2002
  • Autar Singh Bahra And Another v Raju Govindji
    HCCC No. 548 of 1998
  • Trust Bank Limited v Paramount Universal Bank Limited & 2 Others
    Nairobi (Milimani) HCCS No.1243 of 2001
  • Karuru Munyororo v Joseph Ndumia Murage & Another
    Nyeri HCCC No. 95 of 1988
  • Jacob Ernest Ambala Odondi v Violet Shikuku
    (2021) eKLR
  • Joseph Kiprono Maswan v Veronica Mukami Nkatha Reithi & another
    (2021) eKLR
  • Gurdev Singh Birdi and Marinder Singh Ghatora v Abubakar Madhubuti
    CA No.165 of 1996
  • Samson S. Maitai & Another v African Safari Club Ltd & Another
    [2010] eKLR
  • Rosaline Mary Kahumbu v National Bank of Kenya Ltd
    [2014] eKLR
  • Rufale v Umon Manufacturing Co. (Ramsboltom)
    (1918) L.R 1KB 592
  • Attorney General of Belize et al v Belize Telecom Limited & Another
    (2009), 1WLR 1980
  • Trollope Colls Limited v Northwest Metropolitan Regional Hospital Board
    (1973) I WLR 601
  • Reliable Electrical Engineers (K) Ltd v Mantrac Kenya Limited
    [2006] eKLR
  • Harun Mutwiri v Nairobi City County Government
    [2018] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Bidco Africa Limited & Another
    [2015] eKLR
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
  • Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others
    [2013] eKLR
  • Levben Products v Alexander Films (SA) (PTY) Ltd
    1957 (4) SA 225 (SR)
  • Miller v Minister of Pensions
    [1942] 2 ALL ER 372
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land situated in Mombasa County

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, "Ray Power Limited & another v Richmond Company Limited & another (Land Case 33 of 2022) [2024] KEELC 7060 (KLR)", Case Analysis (2024). Land Case No. 33 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7060/eng@2024-10-22

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