Introduction
Ruth Syombua Mutia, (hereinafter referred to as plaintiff) filed this suit vide plaint dated 12.8.2020 amended on 29.8.2022 and further amended on 29,6,2023 seeking an order of specific performance compelling the 1st defendant to transfer the suit property Land parcel No. MN/III/3083 Deed Plan 201252 FR 286/11 to the plaintiff. Moreover, an order that the Deputy Registrar of this honorable court to sign the documents for and on behalf of the 1st defendant which will be necessary to give effect to the specific performance in the event the 1st defendant fails to do so. The plaintiff further seeks a declaration that the plaintiff is not a tenant of the 1st defendant in the suit property. Lastly, that a permanent Injunction be granted against the 1st defendant and 2nd defendant from distressing the plaintiff and or advertising, selling transferring the suit premises and or evicting the plaintiffs from the suit premises or doing anything detrimental to the suit parcel of land. The plaintiff ultimately prays for costs of the suit.
The 1st defendant filed defence stating that the plaintiff leased the house on the suit property with effect from 17th December 2017 at Ksh 30,000 per month.
EVIDENCE ON RECORD
The plaintiff gave un-controverted testimony that sometimes in the year 2017 in the month of December her fiancée at the time Guy Tuyaerts of passport EM 155368 instructed her to look for a house where their family could reside. She was then introduced to her current landlady Jelagat Justine of id no.22570683 by an agent by the name Muli. Upon meeting with Miss. Jelagat in her current residence which is a 4-bedroom house that was unfinished at the time they entered into a written agreement to rent the house as from 17 December 2017 at the price of Kenya Shillings Thirty Thousand (Ksh 30,0000) per month. On the same day she paid cash deposit of 120,000 as rent for 4 months and agreed that she would give her an additional 30,000 shillings in order to make it 5 months' rent. Due to the fact that some people were residing in the residence at that time, she agreed to move in when they had cleared out.
On the 23rd of December, 2017, she moved into the house and gave her the additional 30k and completed the payment as agreed.
On the 28th of December 2017 in the presence of her fiancée and her daughter, Syongombe sila ID no.34227031 they made a new agreement that stated that in addition to the 5 months' rent she was to pay her rent for 1 year 6months more hence and therefore she was to resume paying rent in the month of September 2019 and upon this agreement, the plaintiff paidksh540, 000.
Thereafter, on April 20th 2018, Miss. Jelagat informed the plaintiff that she was planning on selling the house at a consideration of 14million because she had a financial problem that was urgent. She requested for an advance of 7 million in cash because she owed the bank and would not get the money if it was sent through the bank. She urgently needed the money in order to rescue land left to her by her late husband that relatives wanted to grab. The plaintiff and her fiancée agreed with the condition that the cost of renovation of the unfinished house that they would do would be subtracted from the 7 million mentioned above. On the same day, they called the person responsible for the renovation and agreed at the estimate of total of ksh1, 227, 900 plus labor of amount ksh70, 000 making it a total of ksh1,297,900. On that day they paid her ksh500,000 with an agreement to pay her the remaining ksh5,202,100 the following day whereby she insisted on getting the money in cash and also said that they should not inform her lawyer because he would charge her a large fee.
On the 23rd of April 2018, they prepared the contract document of the purchase of the house in plot no.CR29883 and they both signed. They also requested for the title deed of the house which she said she would give on completion of a contract fee ofksh500,OOO.
At this point they decided that they would not pay her until they did a search on the plot. When they went to do the plot search at the ministry of land in Mombasa, they learnt that Miss Jelegat was selling them a house that was in Shanzu in Mombasa County and not the house that she was currently purchasing in Mtwapa, Kilifi County. They confronted her since they were almost finishing the purchase and the information given to them seemed wrong but she told them that there was an administrative mistake from the lawyer's side and that it would be rectified so that they could finalize the payment of the house.
On having this information, they came to the conclusion that they would not make any more payments unless they came to an agreement that, the house they were buying was not the one on paper and she was to return the money but she insisted that she had to sell the house.
They then contacted their lawyer Christine Kipsang who took action and served Miss Jelagat with a warning demanding that she refunds the money so far paid and until then she was to stop sending strangers to harass them.
After being served with the letter, there was no response from Miss Jelagat and she remained silent until the 4th of August 2020 where she sent two men to the residence who claimed to be from a company called Igare auctioneers had instructions to distress for rent. The said distress is illegal as she is not tenant. She is seeking for justice as detailed in the plaint before this honourable court
Plaintiff's Written Submission
The plaintiff submits that her evidence remains uncontroverted. The Defendants failed to challenge the Plaintiff's case by evidence. The Defendant failed to file an Amended Defence in response to the Plaintiff's Further Amended Defence dated 29th June, 2023. Furthermore, the Defendants did not call any witness to controvert the Plaintiff's credible evidence, which therefore remains unchallenged and ought to be accepted by this Honourable Court.
On whether the plaintiff has proved her case on a balance of probabilities, the Plaintiff submits that she entered a sale agreement with the 1st Defendant over the suit property as proved by the Sale agreement Agreement dated 23rd April, 2018 (Pexh. 2) which indicates that the suit properly was Plot No. CR 29883 Subdivision No. 9952 (Original No. 9616) Mainland North Measuring 0.0865 Ha. However, upon engaging the services of the Surveyor, it was found that the correct title is Land Parcel Number MN/111/3083 Deed Plan Number 201252 F/R 286/114. The Surveyor's professional findings were not challenged by evidence. As such, she urges this Honourable Court to adopt Land Parcel Number MN/111/3083 Deed Plan Number 201252 F/R 286/114 as the suit property. The Plaintiff testified that the 1st Defendant received sums of money from her on various dates. The Plaintiff's evidence is that the 1st Defendant received a sum of Kshs, as per the subject Sale Agreement. Further, the Plaintiff paid a sum of Kshs. 800,000/=as per paragraph 18 of the Further Amended Plaint, and the Plaintiff's evidence. Additionally, as per paragraph 14 of the Plaintiff's Further Amended Plaint and the Plaintiff's evidence, the Defendant received a sum of Kshs. 8,000,000 from the Plaintiff in cash, to avoid legal fees from the advocates.
The plaintiff submits that the 1st Defendant received Kshs.1,000,000/= and Kshs. 80,000/= from the Plaintiff towards the purchase of the suit property and a further Kshs.400,000/= from the Plaintiff towards the said purchase. The Plaintiffs invested Kshs.9,997,900/= on the suit property. In total, the 1st Defendant did receive the entire purchase price of Kshs. 14,000,000/=. The plaintiff argues that the 1st Defendant’s allegation that the Plaintiff is merely a tenant is not supported by evidence. In the premises, the plaintiff urges this Honourable Court to find and hold that pursuant to the Sale Agreement dated 23rd April, 2018, the 1st Defendant received from the Plaintiff a sum of Kshs. 14,000,000/= as a consideration for the sale of the suit property. This was in full and final settlement.
The plaintiff argues that in breach of the agreement, the 1st Defendant has not facilitated transfer of the title to the Plaintiff. The Plaintiff has proved her case on a balance of probabilities, and further, her case remains uncontroverted.
The plaintiff relies on the decision this Court in Njoroge vs. Kima11i & 3 others 120251 KEELC 444 (KLR) held:
"10. 111 this case, I do find that the learned magistrate erred in fact and law in finding that the appellant did not prove his case on a balance of probability as the evidence of the plaintiff was not controverted. The appeal is hereby allowed in terms that the judgment of the trial Magistrate together with all other consequential orders therefrom are hereby set aside and that judgment is entered for the appellant in terms of the prayers ill the plaint thus that a permanent injunction is issued restraining the respondents from trespassing on the suit lands namely; Nakuru/ PIAVE Settlement Scheme/4299, Nakuru/ PIAVE Settlement Scheme/4300 and Nakuru/ PIAVE Settlement Scheme/4301.is issued. That costs of appeal be borne by the respondents. Orders accordingly.
(emphasis added)
On whether the plaintiff is entitled to the prayers sought, the plaintiff argues that an order of specific performance is sufficient. In that regard, the plaintiff relies on the decision of the Court of Appeal at Nairobi (Coram: Okwengu, Musinga & Sichale, JJ.A) in Dorothy Margaret Wanjiku Kung'u vs. Akash Himatlal Dodhia & another 120211 eKLR held as follows:
"37. We respectfully agree with the learned judge. The order of specific performance is enforceable and the contract is capable of performance. In Gharib Suleiman Gharib v Abdulrahman Mohamed Agil LLR No. 750 (CAK) Civil Appeal No. 112 of 1998, this Court held: "The jurisdiction to order specific performance is based on the existence of a valid and enforceable contract and being an equitable relief, such relief is more often than not granted where the party seeking it cannot obtain sufficient remedy by an award of damages, the focus being whether or the specific performance will do more perfect and complete justice than an award of damages." We are persuaded that the learned judge exercised her discretion judiciously and there is no basis of interfering with her judgment."
The plaintiff argues that she has demonstrated that she has made substantial investments in the suit property (Pexh, 7 shows the previous and current condition of the suit property following the Plaintiff's investment of Kshs. 9,997,900/= on the suit property). Further, the 1st Defendant has received various sums of money from the Plaintiff on diverse dates towards the purchase of the suit property. Despite this, the 1st Defendant has resorted to harassing and threatening the Plaintiff.
The plaintiff contends that the market value of the suit property has since appreciated and the Plaintiff would not be able to obtain a similar property at the agreed price. She urges this Honourable Court to find and hold that an order of specific performance will do more perfect and complete justice between the parties. In the end, she urges this Honourable Court to find and hold that the Plaintiff has proved her case on a balance of probabilities, and subsequently allow this suit as prayed. I do find that the plaintiff has proved her claim on a balance of probabilities and I do grant judgment in terms court as to be fit the plaintiff.
Analysis and Determination
There are many authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements.
In the case of Shaneebal Limited v County Government of Machakos [2018] eKLR, Odunga, J as he then was, relied on the cases below in reaching his judgment.
In Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.
Similarly, in Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:
“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.
In Interchemie EA Limited vs. Nakuru Veterinary Centre Limited Nairobi (Milimani) HCCC No. 165B of 2000, Mbaluto, J. held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. Mulwa J, however in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR stated:
“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.
This court finds that the plaintiff proved her case on a balance of probabilities that she was purchasing land parcel number MN/III/3083 Deed Plan Number 201252 F/R 286/114. The plaintiff has proved that she paid the purchase price of Ksh 14,000,000 and therefore the terms of the agreement dated 23rd April 2018 were met by the plaintiff but the same were breached by the 1st defendant by failing to procure all necessary steps for the transfer of the title to the plaintiff.
The court further finds that the plaintiff is entitled to specific performance as there exist a valid and enforceable agreement. Specific performance being an equitable relief, it should be demonstrated that an award of damages will not be sufficient to compensate the plaintiff. The plaintiff has demonstrated that she has made substantial development on the parcel of land and that the 1st defendant has received a substantial amount of money from the plaintiff. Moreover, the money was paid more than five years ago hence the value of the property has appreciated and the shilling has lost value due to inflation.
The upshot of the above is that judgment is entered for the plaintiff in terms that an order of specific performance compelling the 1st defendant to transfer the suit property Land parcel No. MN/III/3083 Deed Plan 201252 FR 286/11 to the plaintiff. Moreover, this court directs the Deputy Registrar to forthwith sign the documents for and on behalf of the 1st defendant which will be necessary to give effect to the order of specific performance. The Court further makes a declaration that the plaintiff is not a tenant of the 1st defendant in the suit property. Lastly, the court issues a permanent Injunction against the 1st defendant and 2nd defendant from distressing the plaintiff and or advertising, selling transferring the suit premises and or evicting the plaintiffs from the suit premises or doing anything detrimental to the suit parcel of land. Costs of the suit are awarded to the plaintiff.
JUDGMENT DATED, SIGNED AND DELIVERED ELECTRONICALLY THIS 28TH DAY OF MAY 2026.
Ruth Syombua Mutia, (hereinafter referred to as plaintiff) filed this suit vide plaint dated 12.8.2020 amended on 29.8.2022 and further amended on 29,6,2023 seeking an order of specific performance compelling the 1st defendant to transfer the suit property Land parcel No. MN/III/3083 Deed Plan 201252 FR 286/11 to the plaintiff. Moreover, an order that the Deputy Registrar of this honorable court to sign the documents for and on behalf of the 1st defendant which will be necessary to give effect to the specific performance in the event the 1st defendant fails to do so. The plaintiff further seeks a declaration that the plaintiff is not a tenant of the 1st defendant in the suit property. Lastly, that a permanent Injunction be granted against the 1st defendant and 2nd defendant from distressing the plaintiff and or advertising, selling transferring the suit premises and or evicting the plaintiffs from the suit premises or doing anything detrimental to the suit parcel of land. The plaintiff ultimately prays for costs of the suit.
The 1st defendant filed defence stating that the plaintiff leased the house on the suit property with effect from 17th December 2017 at Ksh 30,000 per month.
EVIDENCE ON RECORD
The plaintiff gave un-controverted testimony that sometimes in the year 2017 in the month of December her fiancée at the time Guy Tuyaerts of passport EM 155368 instructed her to look for a house where their family could reside. She was then introduced to her current landlady Jelagat Justine of id no.22570683 by an agent by the name Muli. Upon meeting with Miss. Jelagat in her current residence which is a 4-bedroom house that was unfinished at the time they entered into a written agreement to rent the house as from 17 December 2017 at the price of Kenya Shillings Thirty Thousand (Ksh 30,0000) per month. On the same day she paid cash deposit of 120,000 as rent for 4 months and agreed that she would give her an additional 30,000 shillings in order to make it 5 months' rent. Due to the fact that some people were residing in the residence at that time, she agreed to move in when they had cleared out.
On the 23rd of December, 2017, she moved into the house and gave her the additional 30k and completed the payment as agreed.
On the 28th of December 2017 in the presence of her fiancée and her daughter, Syongombe sila ID no.34227031 they made a new agreement that stated that in addition to the 5 months' rent she was to pay her rent for 1 year 6months more hence and therefore she was to resume paying rent in the month of September 2019 and upon this agreement, the plaintiff paidksh540, 000.
Thereafter, on April 20th 2018, Miss. Jelagat informed the plaintiff that she was planning on selling the house at a consideration of 14million because she had a financial problem that was urgent. She requested for an advance of 7 million in cash because she owed the bank and would not get the money if it was sent through the bank. She urgently needed the money in order to rescue land left to her by her late husband that relatives wanted to grab. The plaintiff and her fiancée agreed with the condition that the cost of renovation of the unfinished house that they would do would be subtracted from the 7 million mentioned above. On the same day, they called the person responsible for the renovation and agreed at the estimate of total of ksh1, 227, 900 plus labor of amount ksh70, 000 making it a total of ksh1,297,900. On that day they paid her ksh500,000 with an agreement to pay her the remaining ksh5,202,100 the following day whereby she insisted on getting the money in cash and also said that they should not inform her lawyer because he would charge her a large fee.
On the 23rd of April 2018, they prepared the contract document of the purchase of the house in plot no.CR29883 and they both signed. They also requested for the title deed of the house which she said she would give on completion of a contract fee ofksh500,OOO.
At this point they decided that they would not pay her until they did a search on the plot. When they went to do the plot search at the ministry of land in Mombasa, they learnt that Miss Jelegat was selling them a house that was in Shanzu in Mombasa County and not the house that she was currently purchasing in Mtwapa, Kilifi County. They confronted her since they were almost finishing the purchase and the information given to them seemed wrong but she told them that there was an administrative mistake from the lawyer's side and that it would be rectified so that they could finalize the payment of the house.
On having this information, they came to the conclusion that they would not make any more payments unless they came to an agreement that, the house they were buying was not the one on paper and she was to return the money but she insisted that she had to sell the house.
They then contacted their lawyer Christine Kipsang who took action and served Miss Jelagat with a warning demanding that she refunds the money so far paid and until then she was to stop sending strangers to harass them.
After being served with the letter, there was no response from Miss Jelagat and she remained silent until the 4th of August 2020 where she sent two men to the residence who claimed to be from a company called Igare auctioneers had instructions to distress for rent. The said distress is illegal as she is not tenant. She is seeking for justice as detailed in the plaint before this honourable court
Plaintiff's Written Submission
The plaintiff submits that her evidence remains uncontroverted. The Defendants failed to challenge the Plaintiff's case by evidence. The Defendant failed to file an Amended Defence in response to the Plaintiff's Further Amended Defence dated 29th June, 2023. Furthermore, the Defendants did not call any witness to controvert the Plaintiff's credible evidence, which therefore remains unchallenged and ought to be accepted by this Honourable Court.
On whether the plaintiff has proved her case on a balance of probabilities, the Plaintiff submits that she entered a sale agreement with the 1st Defendant over the suit property as proved by the Sale agreement Agreement dated 23rd April, 2018 (Pexh. 2) which indicates that the suit properly was Plot No. CR 29883 Subdivision No. 9952 (Original No. 9616) Mainland North Measuring 0.0865 Ha. However, upon engaging the services of the Surveyor, it was found that the correct title is Land Parcel Number MN/111/3083 Deed Plan Number 201252 F/R 286/114. The Surveyor's professional findings were not challenged by evidence. As such, she urges this Honourable Court to adopt Land Parcel Number MN/111/3083 Deed Plan Number 201252 F/R 286/114 as the suit property. The Plaintiff testified that the 1st Defendant received sums of money from her on various dates. The Plaintiff's evidence is that the 1st Defendant received a sum of Kshs, as per the subject Sale Agreement. Further, the Plaintiff paid a sum of Kshs. 800,000/=as per paragraph 18 of the Further Amended Plaint, and the Plaintiff's evidence. Additionally, as per paragraph 14 of the Plaintiff's Further Amended Plaint and the Plaintiff's evidence, the Defendant received a sum of Kshs. 8,000,000 from the Plaintiff in cash, to avoid legal fees from the advocates.
The plaintiff submits that the 1st Defendant received Kshs.1,000,000/= and Kshs. 80,000/= from the Plaintiff towards the purchase of the suit property and a further Kshs.400,000/= from the Plaintiff towards the said purchase. The Plaintiffs invested Kshs.9,997,900/= on the suit property. In total, the 1st Defendant did receive the entire purchase price of Kshs. 14,000,000/=. The plaintiff argues that the 1st Defendant’s allegation that the Plaintiff is merely a tenant is not supported by evidence. In the premises, the plaintiff urges this Honourable Court to find and hold that pursuant to the Sale Agreement dated 23rd April, 2018, the 1st Defendant received from the Plaintiff a sum of Kshs. 14,000,000/= as a consideration for the sale of the suit property. This was in full and final settlement.
The plaintiff argues that in breach of the agreement, the 1st Defendant has not facilitated transfer of the title to the Plaintiff. The Plaintiff has proved her case on a balance of probabilities, and further, her case remains uncontroverted.
The plaintiff relies on the decision this Court in Njoroge vs. Kima11i & 3 others 120251 KEELC 444 (KLR) held:
"10. 111 this case, I do find that the learned magistrate erred in fact and law in finding that the appellant did not prove his case on a balance of probability as the evidence of the plaintiff was not controverted. The appeal is hereby allowed in terms that the judgment of the trial Magistrate together with all other consequential orders therefrom are hereby set aside and that judgment is entered for the appellant in terms of the prayers ill the plaint thus that a permanent injunction is issued restraining the respondents from trespassing on the suit lands namely; Nakuru/ PIAVE Settlement Scheme/4299, Nakuru/ PIAVE Settlement Scheme/4300 and Nakuru/ PIAVE Settlement Scheme/4301.is issued. That costs of appeal be borne by the respondents. Orders accordingly.
(emphasis added)
On whether the plaintiff is entitled to the prayers sought, the plaintiff argues that an order of specific performance is sufficient. In that regard, the plaintiff relies on the decision of the Court of Appeal at Nairobi (Coram: Okwengu, Musinga & Sichale, JJ.A) in Dorothy Margaret Wanjiku Kung'u vs. Akash Himatlal Dodhia & another 120211 eKLR held as follows:
"37. We respectfully agree with the learned judge. The order of specific performance is enforceable and the contract is capable of performance. In Gharib Suleiman Gharib v Abdulrahman Mohamed Agil LLR No. 750 (CAK) Civil Appeal No. 112 of 1998, this Court held: "The jurisdiction to order specific performance is based on the existence of a valid and enforceable contract and being an equitable relief, such relief is more often than not granted where the party seeking it cannot obtain sufficient remedy by an award of damages, the focus being whether or the specific performance will do more perfect and complete justice than an award of damages." We are persuaded that the learned judge exercised her discretion judiciously and there is no basis of interfering with her judgment."
The plaintiff argues that she has demonstrated that she has made substantial investments in the suit property (Pexh, 7 shows the previous and current condition of the suit property following the Plaintiff's investment of Kshs. 9,997,900/= on the suit property). Further, the 1st Defendant has received various sums of money from the Plaintiff on diverse dates towards the purchase of the suit property. Despite this, the 1st Defendant has resorted to harassing and threatening the Plaintiff.
The plaintiff contends that the market value of the suit property has since appreciated and the Plaintiff would not be able to obtain a similar property at the agreed price. She urges this Honourable Court to find and hold that an order of specific performance will do more perfect and complete justice between the parties. In the end, she urges this Honourable Court to find and hold that the Plaintiff has proved her case on a balance of probabilities, and subsequently allow this suit as prayed. I do find that the plaintiff has proved her claim on a balance of probabilities and I do grant judgment in terms court as to be fit the plaintiff.
Analysis and Determination
There are many authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements.
In the case of Shaneebal Limited v County Government of Machakos [2018] eKLR, Odunga, J as he then was, relied on the cases below in reaching his judgment.
In Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.
Similarly, in Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:
“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.
In Interchemie EA Limited vs. Nakuru Veterinary Centre Limited Nairobi (Milimani) HCCC No. 165B of 2000, Mbaluto, J. held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. Mulwa J, however in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR stated:
“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.
This court finds that the plaintiff proved her case on a balance of probabilities that she was purchasing land parcel number MN/III/3083 Deed Plan Number 201252 F/R 286/114. The plaintiff has proved that she paid the purchase price of Ksh 14,000,000 and therefore the terms of the agreement dated 23rd April 2018 were met by the plaintiff but the same were breached by the 1st defendant by failing to procure all necessary steps for the transfer of the title to the plaintiff.
The court further finds that the plaintiff is entitled to specific performance as there exist a valid and enforceable agreement. Specific performance being an equitable relief, it should be demonstrated that an award of damages will not be sufficient to compensate the plaintiff. The plaintiff has demonstrated that she has made substantial development on the parcel of land and that the 1st defendant has received a substantial amount of money from the plaintiff. Moreover, the money was paid more than five years ago hence the value of the property has appreciated and the shilling has lost value due to inflation.
The upshot of the above is that judgment is entered for the plaintiff in terms that an order of specific performance compelling the 1st defendant to transfer the suit property Land parcel No. MN/III/3083 Deed Plan 201252 FR 286/11 to the plaintiff. Moreover, this court directs the Deputy Registrar to forthwith sign the documents for and on behalf of the 1st defendant which will be necessary to give effect to the order of specific performance. The Court further makes a declaration that the plaintiff is not a tenant of the 1st defendant in the suit property. Lastly, the court issues a permanent Injunction against the 1st defendant and 2nd defendant from distressing the plaintiff and or advertising, selling transferring the suit premises and or evicting the plaintiffs from the suit premises or doing anything detrimental to the suit parcel of land. Costs of the suit are awarded to the plaintiff.
JUDGMENT DATED, SIGNED AND DELIVERED ELECTRONICALLY THIS 28TH DAY OF MAY 2026.