Nyakeri v Birisi & 2 others (Environment and Land Case E500 of 2023) [2024] KEMC 177 (KLR)
The bottom line
#A Nairobi court confirmed that a buyer who proves a signed sale agreement and payment owns the property, and ordered the seller to transfer the title.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff and the 1st defendant entered into a sale agreement in respect to Kibera Soweto – Apartment House No. 32 Block B2, Kibera, Soweto East Zone A, Nairobi
- 2.Whether the Plaintiff is entitled to the reliefs sought
Key legal issues
#Existence of a sale agreement between the Plaintiff and the 1st defendant
A sale agreement dated 21st October 2016 for Ksh. 1,030,000/- was proved by the sale agreement itself, witness statements, payment evidence and photographs of handover, unchallenged as the defendants did not appear
The plaintiff filed a witness statement and called Evans Nyakambi Nyangeri, his wife Lilian Nelly Kemunto Mouko, and advocate Alice Nyomenda Oeri who prepared the agreement. The annexed agreement showed the agreed price of Ksh. 1,030,000/- with the plaintiff assuming an outstanding mortgage of Ksh. 1,198,900/-. Payment to the 1st defendant via a Stima Sacco loan was documented. The 1st defendant did not appear to challenge this evidence.
Entitlement to the reliefs sought
Specific performance, permanent injunction, declaration of ownership and an order that the 2nd defendant issue title were granted; the refund prayer was refused as it could not coexist with specific performance
Having found a valid sale agreement and full payment, the court held the plaintiff the rightful owner in occupation. It granted the declaration, permanent injunction and specific performance, directed the 2nd defendant to process title, but declined the refund of Ksh. 2,600,000/- with 12% interest since that remedy is alternative to specific performance.
Legal principles established
#- Where a purchaser proves a duly executed sale agreement and payment of the purchase price, and the defendant fails to enter appearance or challenge the evidence, the purchaser is the rightful owner entitled to specific performance
Court orders
#- 1.A declaration that property known as Apartment House No. 32 Block B 2 Kibera – Soweto East Zone A – Nairobi situated at Kibera Nairobi belongs to the Plaintiff
- 2.A permanent injunction restraining the Defendants/Respondents by themselves or their servants from evicting and/or interfering in any manner whatsoever with the Plaintiff/Applicant's peaceful occupation of the suit property
- 3.The 1st defendant is ordered to ensure specific performance of the contract dated 21st October 2016 by taking all necessary steps and signing all relevant documents towards transferring the suit property to the Plaintiff
- 4.The 2nd Defendant is ordered to issue the title in respect of the suit property to the Plaintiff being the beneficial owner, subject to payment of all the necessary dues
- 5.The 1st defendant shall bear the Plaintiff's costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Chief Magistrate's Court over the land claim; no specific provision cited in the judgment
Relief refused
#Refund of Ksh. 2,600,000/- with 12% bank rates from 2016 to date
The refund could only apply as an alternative to specific performance; both prayers cannot be granted together
Costs
The 1st defendant shall bear the Plaintiff's costs of the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There is therefore proof that the Plaintifi purchased the suit property from the 1st defendant and he paid the purchase price. He is therefore the rightful owner of the property.
The Plaintifi is entitled to the prayers for specific performance of the contract and permanent injunction as prayed. The 2nd defendant is therefore to ensure that the title to the suit property is processed in the name of the Plaintifi.
The 2nd Defendant is hereby ordered to issue the title in respect to property known as Apartment House No. 32 Block B 2 Kibera – Soweto East Zone A – Nairobi situated at Kibera Nairobi to the Plaintifi being the beneficial owner, subject to payment of all the necessary dues.
The 1st defendant shall bear the Plaintifi’s costs of the suit.
Issues in the judgment
#The paragraph numbered 5 appears twice, once under the first issue and once under the second issue
The suit is styled only as 'Plaintiff' and 'defendants'; the actual names of the parties and the case number are not stated in the judgment as reproduced
A 3rd Defendant is listed as absent at delivery but no relief or finding addresses the 3rd Defendant in the body of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyakeri v Birisi & 2 others (Environment and Land Case E500 of 2023) [2024] KEMC 177 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/177/eng@2024-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.