Nganga & 17 others v Kimuri Housing Company Limited

KIMURI HOUSING COMPANY LIMITED ....................................... DEFENDANT JUDGMENT 1. The Plaintis brought this suit vide a Plaint dated 16/07/2020. They sought, among other prayers, an order of specic performance against the Defendants. They contended that at all material times the Defendant was the registered owner of the parcel of land known as Ruiru-thika LR NO. 1713 situate in Ruiru which had been subdivided into various subplots and oered for sale to prospective purchasers who included the Plaintis. 2. That the Defendant sold through various agreements plots excised from the said parcels of land to the Plaintis as listed at paragraph 5 of the Plaint. The Plaintis each paid the Defendant the agreed purchase price in full and other charges for inter alia, registration, transfer and Title Deeds fees in respect of the purchased plots. 3. The Plaintis stated the Defendant breached the mutual understanding and trust and also he refused to execute the necessary application forms for consent of the Land Control Board and/or Commissioner of Lands in order to eect the transfer of the said plots to the Plaintis. 4. The Plaintis list the following as being particulars of breach of the terms of the agreements: a. Accepting money from the Plaintis without any intention of passing title of the purchased plots to them; b. Withholding vital documents that would vest the ownership of the sold sub-plots into the Plainti’s names; c. Making false promises to the Plaintis every time they request for titles; d. Making unreasonable, unlawful and unwarranted demands for extra payments which were not provided for in the initial agreements for sale of the suit plots. 5. The Plaintis further stated that some of the Plaintis have already developed their purchased portions extensively and are in occupation. 6. The Defendant led their Defence dated 12/03/2021 and denied the content of the Plaint and admitted at paragraph 7 that it has acquired individual titles for each plot but denied that it had declined to release the same to the purchasers and avers that it is some of the purchasers who have refused to pay the transfer charges to the Defendant to enable it process the individual titles although some of the purchasers includes some of the Plaintis herein have so far complied and have their titles processed and issued. 7. It is the Defendant’s averment that the Plaintis have no claim against it and the current suit is bad in law and should be stuck out. 8. The matter was listed for hearing on 17/02/2025 when the parties appeared in virtual Court for time allocation the Court scheduled the hearing for 10:30 a.m. in the presence of both the Plaintis’ and Defendant’s Counsel. 9. When the matter came up for hearing at 11:00 a.m the Counsel for the Defendant and the Defendant did not attend Court. The matter therefore proceeded undefended. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18721/eng@2025-07-15 2

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Plaintis’ Case 10. PW1- Samuel Karume Nganga, adopted his witness statement dated 16/07/2020 and stated that the Plaintis have each paid the Defendant the agreed purchase price in full and other charges for inter alia, registration, transfer and Title Deeds fees in respect of their respective purchased plots, full and better particulars whereof are well within the Defendant’s knowledge. 11. He testied that he had authority from the other Plaintis who want him to testify on their behalf. He also adopted his List of Documents as exhibits. It was his testimony that from the Court he seeks the nal document for the purchase to be given to them to enable them process the titles. He stated that he had annexed a copy of Certicate at page 11 which sated that he had fully paid for his portion. 12. He told the Court that the Plaintis are willing to pay stamp duty although they have never been given a demand for the same and that they will pay once the Land’s Oce gives them the value. He also testied that they were told to pay Kesh 300,000 but they were not told what it was for and that there is no document led in Court to show the said demand. 13. It was his prayer that the Court orders for transfer and cost of the case. 14. PW2- Erastus Kahiga Kaburu adopted his witness statement and stated that he is the 13th Plainti. He testied that he led a further list which has documents at pages 75 to 90. He told the Court that he had a Sale Agreement dated 30/11/2016 and he also testied that there was a special condition where the vendor was to issue the purchaser with a title deed once they nalized payment of the purchase price (see page 91). 15. He further stated that it was his submission that he is entitled to his plot once he pays all charges the government may demand. 16. With this the Plaintis closed their case. 17. In the absence of the Defendant the Court moved to close the Defence case. 18. The Plainti led written submissions dated 25/06/2025 which I have considered in writing this Judgment. Analysis and Determination 19. I have considered the Plaintis’ pleadings, evidence, and submissions. Similarly, I have considered the relevant law and jurisprudence. Whereas the Defendant led their Defence they did not attend Court to adduce their evidence and therefore the Defence led without being subjected to cross examination remains as such and the Court is not under any duty to consider it if the Defendant is not interested in defending the suit. The Defendant’s Defence therefore remains mere allegations and the Plainti’s evidence remains uncontroverted. 20. Be as it may the fact that a suit is undefended does not mean that the Plainti’s burden of proof shifts. The Plainti is still under a duty to prove his or her case to the required standard. 21. In the case of Kenya Power & Lighting Co Ltd v. Rassul Nzembe Mwadzaya [2020] eKLR the Court held that;“ It is noteworthy that the Appellant in its amended Statement of Defence led on 15th October 2012 denied all the allegations raised by the Respondent and attributed contributory negligence on the part of the Respondent. Although a Defence was led on https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18721/eng@2025-07-15 3

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behalf of the Appellant, no witness was called to prove that Defence. Since no evidence was adduced in support of the Defence case, the Defence on record therefore remained as a mere allegation. This is the position in law and was restated in the case of Edward Muriga through Stanley Muriga…Vs…Nathaniel D. Schulter, Civil Appeal No.23 of 1997, where the Court of Appeal stated: “In this matter, apart from ling its statement of Defence the Defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plainti and that of the witness remain uncontroverted and the statement in the Defence therefore remains mere allegations. Section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.” 22. Further, it is trite that if no evidence is tendered to support an averment in a pleading, in this case, the Defence, such averment stand as such as mere statement. Further, if there is no rebuttal of evidence by a party, that evidence remains uncontroverted. 23. In the absence of Defence and appropriate controverting evidence on part of the Defendant, the following are the two questions which fall for determination in this suit: i. Whether the Plaintis have proved their case on a balance of probabilities as required by the law, by demonstrating breach of contract on part of the Defendant; and ii. If the answer to the rst question is in the armative, what remedy is appropriate in the circumstances of this suit. I will analyse the two issues sequentially in the above order. 24. The Defendant led a Defence but did not appear in Court to defend the case and neither did the Defendant le written submissions and so they did not led evidence. I will not anchor my ndings on those unsupported factual matters. 25. The Plaintis gave evidence and produced documents to show how they entered into an agreement for sale with the Defendant, paid the purchase price and took immediate possession of the suit land where some Plaintis have done developments and are already in occupation. But they stated that they have been unjustiably denied title documents to their plots despite having paid to the agreed amounts on the understanding that once the Defendant obtained the title deeds for the said individual sub-plots in its name the Defendant would then transfer and duly register the same into each of the Plaintis names. Hence the payment of the registration, transfer and Title Deeds fees. 26. The Plaintis’ evidence was uncontroverted as the Defendant was given an opportunity but chose not to come to Court. 27. On their part, the Plaintis led evidence by the 1st Plainti (Samwel Karume Ng’ang’a PW1 and 13th Plainti, Erastus Kahiga Kaburu). No controverting evidence was led to challenge their evidence. 28. All Plaintis were issued with Certicates of Ownership stating that each was a registered owner of a specic plot having fully paid the Company subject to the Regulation of delineated LR 1713/12 which was the mother title. Most receipts show nil balance owed to the Defendant. There is evidence that the Plaintis duly discharged their obligations under the contract. The Defendant did not process the title deeds despite receiving the agreed purchase price. The Court is therefore satised that the Plaintis have demonstrated breach of contract on part of the Defendant and have proved their case against the Defendant on a balance of probabilities. 29. The second question relates to the appropriate remedy available to the Plaintis in the circumstances of this suit. The Plaintis sought an order of specic performance. They also sought costs of this suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18721/eng@2025-07-15 4

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They did not seek a refund of the purchase price. The Plaintis contended that most of them have already developed the suit properties at huge economic cost and some are already in occupation thus damages would not be an adequate remedy. 30. As a matter of fact, the Defendant in the Defence led at paragraph 3, 4, 5, and 6 admitted that the Plaintis purchased the sub-plots and paid for them and so the issue of purchase of plots is admitted and is not in dispute. The Plaintis were all issued with certicates of ownership. 31. Specic performance is an equitable remedy that is conned to cases where the common law remedy of damages is inadequate. Secondly, land in Kenya, and indeed in a number of common law jurisdictions, is always treated as being of unique value. Thirdly, the Court would ordinarily not decree specic performance if at trial it is demonstrated through evidence that the vendor will be unable to convey the land to the purchaser. Fourthly, the duty to lead evidence to demonstrate that an order of specic performance should not issue is that of the party opposed to the order of specic performance. 32. In the present suit, the Plaintis led evidence demonstrating that the plots that were allocated to them have been developed. The Plaintis have been in possession of the respective plots which is the subject matter of this suit since 2020 although they bought the subject plots in 2009-2012 and took possession thereon, invested heavily on them and put up permanent structures. No evidence was tendered to demonstrate genuine hindrance against fullment of the Defendant’s contractual obligations to convey the suit property to the Plaintis. In the circumstances, the Court agrees with the Plaintis that it would be inappropriate and indeed inequitable to uproot the Plaintis from the suit property which they purchased in 2009-2012 and which they have had possession of since then and tell them to pursue the Defendant for damages. The appropriate and equitable remedy in the circumstances of this case is an order of specic performance in favour of the Plaintis. 33. On the issue of costs there are no special circumstances to warrant departure from the general principle that costs follow the event. The Defendant will therefore bear costs of this suit. 34. In the end, I make the following disposal orders in this suit in tandem with the reliefs that were sought in the Plaint:a. An order of specic performance is hereby issued directing the Defendant to transfer to each of the Plaintis the said sub-plots out of parcel number RUIRU LR NO. 1713 as particularized in paragraph 5 of the Plaint. b. The Defendants shall bear costs of this suit. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 15TH DAY OF JULY 2025 VIA MICROSOFT TEAMS. ………………………… MOGENI J JUDGE In the presence of: Mr. Ireri for 1st – 18th Plaintis Defendant - Absent Mr. Melita – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18721/eng@2025-07-15 5

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………………………… MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18721/eng@2025-07-15 6

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