[2008] KEHC 1941 (KLR)
The court found that the dispute over the allocation of the suit land had already been settled by the County Council of Kiambu, which had the proper jurisdiction. The plaintiff was allocated three acres, and the defendant, having acquired his interest from the plaintiff's stepbrother, had no right to place a caution...
Source-derived case information.
- Citation
- [2008] KEHC 1941 (KLR)
- Parties
- Plaintiff: Benard Kagia Njuguna; Defendant: Francis Wambururu Njau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 715 of 2003
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Land Allocation Disputes, Removal of Caution, Eviction Orders, Trespass, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Kagia Njuguna
Plaintiff
Francis Wambururu Njau
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant's caution on the suit land should be removed.
- 2 Whether the defendant should be evicted from land reference Karai/Karai/1373.
- 3 Whether the defendant's occupation amounts to trespass.
Ratio Decidendi
The court found that the dispute over the allocation of the suit land had already been settled by the County Council of Kiambu, which had the proper jurisdiction. The plaintiff was allocated three acres, and the defendant, having acquired his interest from the plaintiff's stepbrother, had no right to place a caution on the plaintiff's land or to rent it out to third parties. The defendant's absence at the hearing, despite being duly served, did not prevent the court from proceeding. The court rejected the defendant's limitation argument as it was not canvassed by his advocate. Consequently, the court ordered the removal of the caution and the eviction of the defendant from the suit land,...
Court Disposition
judgment for the plaintiff
Orders
- The caution lodged by the defendant on land reference Karai/Karai/1373 is to be removed.
- The defendant is to be evicted from land reference Karai/Karai/1373.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 715 of 2003
BENARD KAGIA NJUGUNA …………………………….. PLAINTIFF
VERSUS
FRANCIS WAMBURURU NJAU …….………………….. DEFENDANT
JUDGEMENT
I: Procedure
1. The County Council of Kiambu established under section 28 of the Local Government Act Cap.265 as registered proprietor of Land parcel Karai/Karai/340 measuring 4. 7 hectares allocated 6 acres to one Karanja Kamau. The said Karanja Kamau (now deceased) had two wives Wangui and Grace Wanjiru. House 1 and 2 respectively.
2. A dispute arose whereby the courts dealt with the dispute up to the court the dispute up to the court of appeal here. In the case of:-
Bernard KagiaVMbuthi Njoroge CA 70/1984
The Court of Appeal stated that the High Court had no powers to deal with the dispute. Only the County Council of Kiambu.
3. The matter is said to have been refereed to the County Council Act Kiambu and settled.
4. According to the plaintiff herein he was allocated three acres. His step brother was also allocated three acres but had sold his share to the defendant Francis Wambururu Njau.
5. The said defendant placed a caution on his land and proceeded to rent out the land to other persons to use. The plaintiff filed this suit on 21 July 2003 seeking the removal of the caution and eviction of the defendant from using the land.
6. On the day called for hearing the defendant was absent. The hearing proceed under Order IXB r 3(a) Civil Procedure Rules that he had been duly served and was absent. It is not compulsory nonetheless for a defendant to attend to court where he has an advocate representing him.
II: Trial
7. The plaintiff prayed he be given the orders sought. He informed this court that any disputes between the parties was long settled by the County Council of Kiambu.
8. In the defence filed the defendant denied the allegations. He said that he had been on the land since 1975. That the suit is laid as it covers section 17 of the Limitation of Actions Act.
9. That this suit be dismissed.
III: Opinion
10. From the agreed issues filed and agreed on by the parties on 22 May 2007 my finding are as follows:-
i) That the caution lodged by the defendant be removed
ii) That the defendant be evicted form the land reference Karai/Karai/1373.
iii) That it is not disputed that there may have been trespass on the said land.
iv) The issue of Section 17 of the Limitation of Actions Act Cap.22 was not canvassed by the advocate for the defendant. I would accordingly reject this.
11. I accordingly enter judgment for the plaintiff against the defendant and grant him his prayers as prayed.
DATED THIS 19TH DAY OF JUNE 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
S.N. W. Kinuthia instructed by Mwicigi Kinuthia & Co. Advocates for the plaintiff-present
G. Kamonde instructed by G. Kamonde & Co. Advocates for the defendant – present