Mumo Kimwele v Mutati Nzoka [2018] KEELC 4358 (KLR)

REPUBLIC OF KENYA

THE ENVIRONMENT & LAND COURT

AT GARISSA

ELC CASE NO. 55 OF 2017

MUMO KIMWELE..............................................PLAINTIFF

VERSUS

MUTATI NZOKA..............................................DEFENDANT

JUDGMENT

INTRODUCTION

By an originating summons dated 28th July, 2017 the plaintiff averred that he bought  a parcel of land from the defendant described as Land Reference Number Kyuso/KYUSO ‘A’/31 at a consideration of Kshs.2,200,000/=. The said property is alleged to be situated at Kyuso Town of Kitui County. The defendant further avers that he entered into a sale agreement with the defendant on 13th July, 2017 which agreement is expressed to be subject to the Law Society conditions of sale (as amended in the 1989 edition).

From the reading of the said agreement, it is apparent that the defendant breached the agreement by failing to perform part of the terms and conditions of the said agreement. The plaintiff who is the purchaser therefore filed this suit seeking orders to compel the defendant to perform his part of the agreement so as to facilitate the transfer and subsequent registration of the property in his favour.

The plaintiff has filed an affidavit in support thereof sworn the same date. That affidavit is further supported by the sale agreement together with transfer forms and an application for consent of land control board. Upon service of the court documents, the defendant failed to Enter Appearance and file defence. The plaintiff then took a hearing date and again served upon the defendant and after he failed to attend court on the hearing date, the court directed the case to proceed Ex-parte.

Having looked at the originating summons filed in court, the sale agreement, and the supporting affidavit. It is apparent that the vendor who is the defendant in this case is in breach of one of the terms and conditions of the sale agreement. The sale agreement attached to the supporting affidavit provides an array of remedies available to an aggrieved party. Under Clause 19 of the agreement for sale dated 13th July, 2017, the parties agreed as follows:

“ 19 If the vendor fails to comply with his obligation under his agreement, the purchaser shall give the vender a fourteen (14) days Notice in writing to comply with his obligations and such notice shall specify the default and require the vendor to make good  the defendant within fourteen (14) days of such notice (time being of essence) and if the vender then fails to comply, with the notice the purchaser may at this discretion and without prejudice to its rights and remedies rescind this agreement and the vendor shall refund any monies paid to him pursuant to this agreement without any reduction within seven (7) days of such rescission”.

The agreement for sale further provides in clause 21 provides as follows:-

“21 Should such negotiations fail to achieve a resolution within thirty (30) days, either party may declare a dispute by written notification to the other, whereupon such dispute shall be referred to arbitration……”

The plaintiff in this case has not complied with the terms of his own agreement of sale which he has attached to the supporting affidavit.

The agreement of sale between the two sides has been attached specifying how a party in breach can remedy the offended party. Before referring the matter for resolution to third parties the parties agreed to attempt to resolve such dispute amicably and that should such fail, one should declare a dispute in writing and refer the matter to arbitration whose decision/award shall be final. None of those conditions in the sale agreement were explored by the plaintiff before filing this suit. The plaintiff is also attempting to obtain an order compelling the defendant to execute the transfer forms failing which the Deputy Registrar to sign the same. This court cannot compel a party to perform a contractual obligation.

Contracts are to be executed voluntarily and willingly. If a party changes his/her mind, then the remedy lies elsewhere but not a mandatory order. For all the reasons I have given, I find the suit herein lacking merit and the same is hereby dismissed. I make no order as to costs.

Read and delivered in the open court this 25th January, 2018.

E. C CHERONO (Mr.)

ELC JUDGE

In the presence of:

1. Mr. Nzili holding brief for Mwalimu for plaintiffs.