Pro-Properties Limited v Kagia

e. Any such further relief this Honorable Court may deem t and just to grant. 3. Those prayers arise from the Plainti’s contention that she entered into an agreement with the Defendant dated 10/07/2020 whereby the Defendant agreed to sell and the Plainti agreed to buy all that property known as Karai/Karai/1373 at the cost of Kenya Shillings Twenty-Two Million (Kesh 22,000,000) and at execution of the agreement the Plainti would pay Kenya Shillings Two Million, Five Hundred Thousand only (Kesh 2,500,000) as a deposit. 4. On her part the Defendant through her Statement of Defence dated 5/12/2023, Florence Wambui Kagia (the Defendant) denies all the averments in the Plaint in total and puts the Plainti to strict proof thereof. She avers she did not cause any breach and the particulars as set out in paragraph 16 of the Plaint and avers that to the contrary to the allegations of breach, the contract was frustrated by the Orders of inhibition issued in Thika ELC 750A of 2017. 5. She further avers that if there is any money owing to the Plainti which she denies then the actual outstanding sum is in dispute and a proper reconciliation to the gures is required to ascertain the correct amount owed to the Plainti if at all. She prays that Plainti’s suit be dismissed with costs to the Defendant. Plainti ’s Case 6. The Plainti testied through Daniel Kamiti Mwangi who stated that he owns a Real Estate Company which is the Plainti. He adopted his witness statement as his evidence in chief and he also submitted his List of Documents dated 21/11/2022 numbered as “Pexh 1-12”. He testied that the Defendant has admitted that the Plainti paid her Kesh 11,400,000 and so his prayer was that Judgment is entered on admission of the liquidated sum. 7. He testied that the Defendant has prayed that she should be allowed to refund him the said sum upon conclusion of ELC No. 750 “A” of 2017 but the Plainti is not in agreement with this prayer since it is not a party to the said suit save for the Criminal case in Kiambu. It is the Plainti’s case that he is not willing to wait for the outcome of the said case where it is not a party. 8. His prayer is for a refund of its money and interest from the date they paid the Plainti the funds plus costs. 9. In cross-examination he testied that he had led the CR12 which shows that he is one of the Directors and that he has also led the authority to plead to support his claim of being a Director who has been authorized to represent the Plainti. It was his testimony that when he entered into the agreement with the Defendant, he was only aware of the Criminal case in Kikuyu and the parties led a consent. 10. He testied that he is seeking the funds paid to the Defendant for purchase of the suit property to be refunded since the Defendant mentioned that she does not want to sell the property to the Plainti anymore and that she led another case where the Plainti is not a party relating to the same suit property. It is the Plainti’s testimony that he wrote to the Defendant and she admitted to having received the money paid for the purchase of the suit property. 11. The Plainti told the Court that in the Criminal case in Kikuyu the Defendant has been charged with obtaining money by false pretence and that he has indicated in the Plaint at page 43 about the case that came up following the ling of a Replying Adavit by the Defendant although on his part he was not aware that there is prohibition order lodged against the suit property. It was his testimony that since the Defendant is not able to transfer the suit property to the Plainti, he is seeking reimbursement of the monies paid for the purchase of the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18665/eng@2025-10-23 2

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12. On re-examination the Plainti testied that he did not participate in the case that led to the issuance of the prohibition order. He told the Court that he only came to know about the case vide the Replying Adavit led by the Defendant. He testied that he never transacted with Mr James Wabururu. He also told the Court that the Plainti never took steps to complete the transaction relating to the sale of the suit property. 13. He told the Court that since the Plainti never took steps to complete the transaction of the land and that they are seeking a refund and not specic performance because the Defendant disclosed about ELC Case No. 750 “A” of 2017 and that the Plainti did not want to take chance on the outcome of the said case. He also testied that he has authority to plead since there is a company resolution to that eect. He concluded his testimony by restating that when they did a search on the suit property there was no prohibition registered on the Title. With that the Plainti closed his case. The Defence Case 14. The Defendant equally testied as the sole witness in her case. Testifying as DW1, the Defendant adopted her witness statement as evidence in chief dated 24/03/2025. She also led a List of Documents as exhibits in support of her case marked as “DExh 1-6”. 15. While being cross-examined she admitted to the Court that she entered into a contract with the Plainti and she received Kesh 11,400,000 from the Plainti. That she testied that she obtained the consent from the Land Control Board for the sale of the suit property although she did not produce it in Court. She told the Court that she is not able to transfer the suit property since there is a Court order prohibiting the transfer of the land to the Plainti although the Plainti is not a party to the case where the inhibition was issued. 16. She testied that there is a Court Case ELC 750 “A” of 2017 where the Plainti is not a party although according to her testimony, she stated that she informed the Plainti about the case verbally but she has not alluded to this in her witness statement. It was her testimony that she is not agreeable to the Court ordering a refund although she is also not able to transfer the suit property to the Plainti. 17. It was her testimony that once the suit ELC 750 “A” of 2017 is concluded she can sell the land and pay the Plainti their money although she is not certain that the said suit shall be decided in her favour. She stated that the law rm of CN Nderitu developed the sale agreement. 18. On re-examination, she testied that although the Plainti knew about ELC 750 “A” of 2017 they still entered into a sale agreement with the Defendant. That at the moment the Plainti does not have the land nor the money. 19. DW1 reiterated in re-examination that she intends to sell the land and pay the Plainti their money but there is a prohibition on the title entered on 22/02/2022. She however stated that she did not have a copy of the title showing the entry of the prohibition. With that the Defendant closed her case. 20. At this point the Plainti made an application for the Court to enter Judgment for the sum of Kesh 11,400,000 which the Defendant admitted owing. The Defendant’s Counsel was in concurrence. 21. The Court thus entered Judgment for the admitted sum of Kesh 11,400,000 to be paid by the Defendant to the Plainti as stated in Prayer (a) of the Plaint. Submissions 22. The parties then led written Submissions. The Plaintis led their Submissions dated 23/4/2025 while the Defendant did not le theirs as at the time of writing this Judgment. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18665/eng@2025-10-23 3

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Analysis and Determination 23. I have considered the parties’ respective pleadings, evidence and submissions. I have also considered the relevant legal framework and the prevailing jurisprudence on the key issues in this suit. Although in her pleadings, the Defendant does not admit entering into the agreement dated 10/07/2020 and receipt of Kesh 11,400,000 out of the purchase price of Kenya Shillings Twenty-Two Million (Kesh 22,000,000), she admitted in her adopted witness statement that she indeed entered into the sale agreement but that the Court issued an inhibition barring transaction in the suit property. 24. She in cross-examination admitted having received purchase price amounting to Kesh 11,400,000. 25. At her admission the Court entered a summary Judgment against the Defendant for refund of the said amount paid from the date of Judgment with interest. Lastly, through her written submissions, the Defendant argued that the remedy available to the Plainti was an order for “recovery of the monies paid and for breach of contract but not an order of specic performance for transfer of the suit land to the Plainti’s name.” 26. Taking into account the totality of the parties’ respective pleadings, evidence and submissions, the key issue to be determined in this suit is the question as to the appropriate remedy the Plainti is entitled to, in the circumstances of this suit. The Plainti’s preferred relief (a) An order directing the Defendant to refund the Plainti the sum of Kesh 11,400,000.00/- that the Plainti had paid to the Defendant, sum of Kesh 235,000.00 that the Plainti had paid to the Defendant’s agents, the sum of Kesh 865,000. 00 that the Plainti had paid to the Advocates and its agents and the sum of Kesh 2,200,000 as liquidated damages for breach of contract, a sum total of Kesh Shillings Fourteen Million, Seven Hundred Thousand Only (14,700,000.00), (b) In the alternative to prayer (a) above, an order of specic performance directing the Defendant to obtain all necessary consents and clearance certicates necessary to transfer her rights, interest and title over all that property of land known as Karai/Karai/1373 upon which the Plainti will pay the balance of the purchase price. (c) Costs of the suit (d) Interest on (a) and (c) above at Court rates from the date of ling this suit and (e) Any such further relief this Honorable Court may deem t and just to grant. 27. It is the Plainti’s contention that since the Defendant is not willing to transfer the land then he seeks a refund and not specic performance as earlier pleaded. On her part, the Defendant admits that the Plainti is entitled to a refund of the purchase price paid save that the refund has to await completion of a Court case led against the suit property and if she is successful then she will sell the suit property and then refund the Plainti the purchase price paid. A fact objected by the Plainti since it is not a party to the said suit and therefore does not want to wait for an outcome of a suit they have no control over. 28. My reading of Clause 11 of the Sale Agreement points me to the fact that the parties to this suit, in their respective wisdom, expressly agreed on the remedy that would be available to an aggrieved party in the event of default by either party. In this regard Clause 11.1, 11.1.1, 11.1.2 and 11.1.3 lays out the obligation of the purchaser including payment by the purchaser of 10% of the purchase price as liquidated damages where the purchaser is in default. 29. Conversely, the same rules apply to the vendor as provided under Clause 11.2, 11.2.1, 11.2.2 and 11.2.3 where the vendor obligated in the event of recission by the purchaser due to the fault on the part of the vendor, to refund to the purchaser any sums paid in regards to the purchase price without any set o or counter-claim together with the sum equivalent to ten (10%) percent of the purchase price as liquidated damages. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18665/eng@2025-10-23 4

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30. Given the above Clause, the nding of this Court is that the remedy available to the Plainti, as a result of the Defendant’s default to procure conveyance of the suit property to it, is a refund of the total of the purchase price paid so far together with the agreed liquidated damages equivalent to 10% of the purchase price. The agreed purchase price was Kshs 22,000,000. The Defendant acknowledged receipt of Kesh 11,400,000.00/- that the Plainti had paid to the Defendant, sum of Kesh 235,000.00 that the Plainti had paid to the Defendant’s agents, the sum of Kesh 865,000. 00 that the Plainti had paid to the Advocates and its agents. In addition, the Plainti lays to Kesh 2,200,000 as liquidated damages for breach of contract which is 10% of the liquidated claim of the purchase price in full. 31. The Defendant as we have seen admitted receiving the money from the Plainti. It is his case that he failed to transfer the suit property because of the inhibition although he did not produce the same in Court. 32. Again, while the Defendant in her testimony before the Court admitted only having received Kesh 11,400,000 he did not deny that the Plainti paid out a sum of Kesh 235,000.00 to the Defendant’s agents, and a sum of Kesh 865,000. 00 paid to the Defendant’s Advocates and its agents. As it were, parties are bound by their pleadings and the Defendant is so bound. In any event, the Plainti availed copies of cheques drawn in favour of the Defendant and a letter from the Lawyer showing the willingness to revoke the transaction as long as it will be refunded the money paid to the Defendant upon request of the Defendant. 33. In the circumstances herein, I am persuaded that the Plainti has proved their case on a balance of probabilities. The remedy of specic performance sought by the Plainti is however discretionary and one that ought to be granted only where damages cannot aord a complete remedy. In the matter before me, it is apparent that the Defendant never relinquished possession of the suit land. Consent from the Land Control Board though said to have been obtained was not presented before the Court and the transfer documents were not executed. In addition, there was a balance of more than Kesh 8 million or thereabout towards the purchase price which was yet to be paid. I am therefore not persuaded that the remedy of specic performance would be justied. 34. On costs, the Defendant led a Statement of Defence in which she denied particulars of frustrating the contract she entered into with the Plainti dated 10/07/2020 and instead avers that it was frustrated due to the inhibition order by the Court. She put the Plainti to strict proof. 35. Although she subsequently made an admission in the witness statement, she did not tender to the Court the purchase price which she had received together with the agreed liquidated damages. She took the Plainti through the vigours of a full trial. In the circumstances, the principle in Section 27 of the Civil Procedure Act will be invoked against the Defendant. The Defendant is therefore liable to bear costs of the suit. 36. In the end, the Plainti’s suit against the Defendant succeeds and Judgment is entered in favour of the Plainti against the Defendant in the following terms:a. A refund to the Plainti by the Defendant of the sum of Kesh 11,400,000.00/- that the Plainti had paid to the Defendant and which the Defendant admitted having received, sum of Kesh 235,000,000 that the Plainti had paid to the Defendant’s agents, the sum of Kesh 865,000.00 that the Plainti had paid to the Advocates and its agents and the sum of Kesh 2,200,000 as liquidated damages for breach of contract, a sum total of Kesh Shillings Fourteen Million, Seven Hundred Thousand Only (14,700,000.00). b. Costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18665/eng@2025-10-23 5

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c. 37. Interest on (a) and (c) above at Court rates from the date of ling this suit. Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 23RD DAY OF OCTOBER, 2025. .......................... MOGENI J JUDGE In the presence of:Mr. Njoroge for the Plainti Mr. Gaya for the Defendant Ms. Ondieki holding brief for Mr. Mburu for the Interested Party Mr. Melita – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18665/eng@2025-10-23 6

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