Jane Namalwa (Suing in her capacity as the duly appointed attorney of Delia Nafula Mukhwana) v Christopher Kipsang Mosong [2019] KEELC 389 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

LAND CASE NO.  63 OF 2018

JANE NAMALWA (Suing in her capacity as the duly appointed attorney of

DELIA NAFULA MUKHWANA....................................................PLAINTIFF

VERSUS

CHRISTOPHER KIPSANG MOSONG...................................DEFENDANT

JUDGMENT

1. By a plaint dated 12/7/2018and filed in court on the same date the plaintiff sought the following orders against the defendant:-

a. An order of specific performance to issue against the defendant compelling her to execute and/or cause to be executed all the relevant instruments of transfer and applications for consent so as to cause a portion measuring Nought Decimal Two Five (0. 25) of an acre of that land known as Plot No. 22 Natwana ADC Farm forming part of Land Reference No. 8158/2 to be transferred into the name of one DELIA NAFULA MUKHWANA.

b. An order directing the defendant to surrender the road reserve on the suit land to the purchaser, DELIA NAFULA MUKHWANA to enable her to access her portion of land easily.

c. Costs of the suit.

d. Any other relief this court may deem just to fit to grant.

The Plaintiff’s Case

2. According to the plaint and the evidence of the plaintiff the plaintiff purchased 0. 25 acres from the defendant. That portion of land was to be carved out of the defendants land referred to as Plot No. 22 Natwana ADC Farm, which is a portion of a larger parcel LR No. 8158/2. The consideration was Kshs.165,000/= which Delia paid in full on execution of the sale agreement dated 7/3/2015. It was an express term of the agreement that upon payment of the purchase price in full the vendor would execute the relevant instruments of transfer to ensure that the purchased portion is transferred into Delia’s name but the vendor has not done so to date. Further the vendor has failed to provide access to the plot by way of creating a road for the purchaser.  It is averred that attempt to resolve the dispute amicably has failed hence the suit.

3. Only the plaintiff testified in her case. She adopted her statement filed alongside her plaint and produced a Power of Attorney granted to her by Delia Nafula Mukhwana dated 9/5/2018 registered at the Lands Registry as P/A/69182 on 12/6/2018. She also produced the original sale agreement dated 7/3/2015 as P. Exhibit 2. A copy of a letter from the Senior Chief Moi’s Bridge Location was produced as P. Exhibit 3. A demand letter dated 8/5/2017 addressed to the defendant was produced as P. Exhibit 4. She stated that since she purchased the land she cannot access it for the purpose of development. Upon giving that evidence the plaintiff closed her case.

The Defendant’s Defence

4. The defendant filed memorandum of appearance on 1/8/2019 and the defence on 14/8/2018.  However though served, the defendant and his advocates never attended the hearing.

DETERMINATION

5. I have considered the plaint and the evidence given by the plaintiff as well as the documents produced in this case. I find that the plaintiff has proved her case on a balance of probabilities against the defendant.  I therefore enter judgment in favour of the plaintiff against the defendant in terms of prayers No. (a), (b)and(c) of the plaint dated 12/7/2018.

Dated, signedanddeliveredatKitale on this 9th day of  December, 2019.

MWANGI NJOROGE

JUDGE

9/12/2019

Coram:

Before - Mwangi Njoroge, Judge

Court Assistant - Picoty

N/A for the Plaintiff

N/A for the Defendant

COURT

Judgment read in open court.

MWANGI NJOROGE

JUDGE

9/12/2019.