[2008] KEHC 3201 (KLR)
The court found that the plaintiff was the lawful licensee and occupier of Plot No.14 Timau Market, as evidenced by the defendant's acceptance of rent and transfer documents. The defendant, having failed to appear or contest the claim, left the plaintiff's evidence unchallenged. The court accepted the professional...
Source-derived case information.
- Citation
- [2008] KEHC 3201 (KLR)
- Parties
- Plaintiff: Andrew Wachira; Defendant: County Council of Meru Central
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 33 of 2007
- Procedural Posture
- Civil Case / Ex Parte Judgment After Interlocutory Judgment Due to Non Appearance by Defendant
- Outcome
- Judgment for the plaintiff in the sum of Kshs.1,432,000; other claims dismissed; costs to the plaintiff.
- Judges
- I Lenaola
- Legal Topics
- Trespass to Land, Unlawful Demolition, Compensation for Property Damage, Licence and Occupation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Wachira
Plaintiff
County Council of Meru Central
Defendant
Procedural Posture
Civil Case / Ex Parte Judgment After Interlocutory Judgment Due to Non Appearance by Defendant
Legal Issues
- 1 Whether the defendant's demolition of the plaintiff's building on Plot No.14 Timau Market was unlawful.
- 2 Whether the plaintiff is entitled to compensation for the demolished building and consequential loss of rental income.
- 3 Whether the plaintiff is entitled to general damages for trespass.
Ratio Decidendi
The court found that the plaintiff was the lawful licensee and occupier of Plot No.14 Timau Market, as evidenced by the defendant's acceptance of rent and transfer documents. The defendant, having failed to appear or contest the claim, left the plaintiff's evidence unchallenged. The court accepted the professional valuation of the demolished building and found that the demolition was carried out by the defendant's agents without notice or lawful justification. The claim for general damages was dismissed due to lack of evidence, and the claim for special damages for the valuation report was also dismissed as it was not pleaded. Judgment was entered for the plaintiff for the value of the...
Court Disposition
Judgment for the plaintiff in the sum of Kshs.1,432,000; other claims dismissed; costs to the plaintiff.
Orders
- Declaration that the defendant's entry into Plot No.14 Timau Market and demolition of the plaintiff's building was unlawful.
- Judgment entered for the plaintiff in the sum of Kshs.1,432,000 for the value of the demolished building.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU
Civil Case 33 of 2007
ANDREW WACHIRA...................................................................................PLAINTIFF
VERSUS
COUNTY COUNCIL OF MERU CENTRAL.............................................DEFENDANT
JUDGMENT
1. The plaintiff herein, Andrew Wachira by his plaint dated 10. 4.2007 seeks orders as follows:-
a. Declaration that the defendant’s entry into Plot No.14 Timau Market and demolishing the plaintiff’s building’s thereof was unlawful.
b. Payment of Kshs.1, 432, 000/= being value of demolished building plus full compensation for consequential loss of rental income at the rate of Kshs.16, 000/= per month until payment in full.
c. General damages for trespass.
d. Costs of the suit and interest
2. The defendant, County Council of Meru Central , having been served with summons to enter appearance failed to do so and interlocutory judgment was entered by the Deputy Registrar of this court on 18. 6.2007 and the matter heard ex-parte on 15. 11. 2007. In his evidence, the plaintiff said that he was the proprietor of Plot No.14, Timau Market where he had constructed a commercial building. He produced documents showing that the defendant had accepted the transfer of the plot to him and had also accepted rent from the plaintiff in the years 2004, 2005 and 2006. That on 8. 8.2004, some councillors including, one Ken Kimathi, came with a bull-dozer and demolished his building without any notice or reason whatsoever. He sought intervention from some officers in the defendants’s offices and he was allowed, informally, to reconstruct the demolished building which he did. He alleged that the demolition was illegal and that he suffered loss and inconvenience thereby. He produced a valuation report by S.M. Mburu & Associates dated 24. 3.2004 showing that the value of the improvements on Plot No.14 Timau was Kshs.1, 432, 000/= and he now seeks that amount plus the cost of the valuation report being Kshs.3000/=.
3. From the unchallenged evidence before me, the plaintiff was the proper occupier as licensed of Plot No.14 Timau Market. The licence was given by the defendant which accepted an annual rent of Kshs.6, 000/= from the plaintiff as evidenced by P. exhibit 4. There is also no evidence to challenge the assertion that the plaintiff constructed a building worth Kshs.1, 432, 000/= on the plot and I have no reason to doubt the assertion that the defendant’s servants or agents demolished that building on 8. 8.2004. P. exhibit 5 is the valuation report prepared by a professional valuer and again I have no reason to fault it. In the end therefore and on a balance of probabilities, the plaintiff’s claim has been proved and save for the claim for general damages where no proof or evidence was led and the claim for special damages for Kshs.3, 000/= which was not pleaded, I have little choice but to enter judgment as prayed in terms of prayer (a) of the plaint. Regarding prayer (b) of the plaint judgment is entered in the sum of Kshs.1, 432, 000/= only as no evidence of loss of rental income was given. Prayer (c) is dismissed for reasons give above.
4. Costs of the suit shall be paid to the plaintiff by the defendant.
5. Orders accordingly.
Dated and delivered at Meru this 18th day of February 2008.
ISAAC LENAOLA
JUDGE