Musembi Philip Kalloki v Priscila Kilonzo Mutiso [2018] KEELC 28 (KLR)

REPUBLIC OF KENYA

IN THE  ENVIRONMENT AND LAND COURT AT MAKUENI

ELC  NO. 90 OF 2017

MUSEMBI   PHILIP KALLOKI  ---------------------------- PLAINTIFF

VERSUS

PRISCILA KILONZO MUTISO --------------------------DEFENDANT

JUDGMENT

1)By his amended  plaint dated  15th September, 2017 and deemed  as duly filed  and served on 3rd  November, 2017 pursuant  to the application  dated 15th September, 2017 and filed in court on 18th September,2017, the Plaintiff  prays  for judgement  against the Defendant  for :-

a) Specific performance of the agreement dated 25/7/2011 or in the alternative the Defendant be ordered to pay general damages for breach of the contract dated 25/7/2011 calculated at the prevailing market for land situate  within the local area.

b) That the costs of this suit be awarded to the Plaintiff.

c) Any other relief that the court deems fit and just grant.

2)The matter  proceeded  as undefended  suit after the  Defendant failed  to enter appearance  and to file her defence  despite being served with summons.

3)During the hearing, the Plaintiff  adopted his  undated statement  filed in court on the 23rd November, 2017 as his evidence.  He  also produced  his four(4) documents in his two lists of documents dated 31st August, 2016  and 13th November, 2017 and filed in court on the 1st September, 2016 and 23rd November, 2017 as PEX Nos. 1 to 4 respectively.

4)The Plaintiff’s evidence in brief was that on the 25th July, 2011 he and the Defendant entered into a sale  agreement for plot number 1212 – 3022 Mang’elete Settlement  Scheme at a purchase price of Kshs. 780,000/=. He said that he paid the Defendant the full purchase price. According to him the sale agreement was for sale and transfer of 13 acres but in breach of it, the Defendant excised and transferred to him 10. 47 acres leaving 2. 53 acres untransferred.  He  said that this was confirmed  by  Mr. Urbanus  Mutuku Munyao who is  a surveyor  vide his survey report dated  22nd  August, 2017 (PEX NO. 4).  He said that he prays for an order that in the event that the Defendant does not transfer to him the said 2. 53 acres of land, she should compensate him at the current market value of the land together with interest.  He said that the current market value per acre is Kshs. 200,000 per acre. He also sought an award of damages.

5)The Plaintiff’s counsel in his submissions referred to the  Blacks Law Dictionary Eighth Edition by Bran Garner at page  1435 which defines what specific performance entails.  He also  cited the case  of  Aziz Vs Bhatia Brothers Ltd(2001) 1EA7which  held  that:-

“A party who  has performed   his part of the  bargain may be  assisted by the court to enforce the contract against the defaulting party…”

6)It should be noted that the counsel never provided copies of these authorities. Be that as it may, he proposed that the Plaintiff be awarded Kshs, 300,000 x 2. 53 acres   which will add up to Kshs.  759,000 plus Kshs. 1,000,000 being general damages for breach of contract.

7)Having  read  the  evidence  on record as  well as the submissions  that were filed, it seems to me that  the Defendant partially complied  with the terms  of the sale agreement .  This is why the Plaintiff prays for the balance of  2. 53 acres or its equivalent. This would therefore be Kshs.   200,000 x2. 53 acres = 506,000/= and not  Kshs.  759,000 which the counsel has proposed that the Plaintiff be awarded.  As for general damages of Kshs. 1,000,000 proposed by his counsel, no basis was put forth for  the sum in question.  In my view, the sum of Kshs. 100,000 would suffice under the circumstances given the fact of partial compliance by the Defendant.  I hereby proceed to enter judgement for the Plaintiff and against the defendant as hereunder:-

a) Specific performance of the agreement dated  25th July, 2011 or in the alternative the Defendant do pay general damages for breach of contract amounting  to Kshs. 100,000 plus  the correct  market value of 2. 53 acres amounting to Kshs.  506,000.

b) Costs of the suit.

SIGNED, DATEDandDELIVEREDatMAKUENIthis13THday ofDECEMBER,  2018

MBOGO C.G

JUDGE

IN THEPRESENCE OF;

Mr. Nagwere holding brief for

Mr.  Mwongela for the Plaintiff

Mr.  Kwemboi Court Assistant

MBOGO C.G, JUDGE

13/12/2018