[2010] KEHC 3600 (KLR)
The court found that the plaintiff is the registered proprietor of the suit property, Nakuru Municipality Block 12/93, as evidenced by the Certificate of Lease and a prior decree. The defendant, having failed to enter appearance or file a defence, provided no justification for continued occupation. The court held...
Source-derived case information.
- Citation
- [2010] KEHC 3600 (KLR)
- Parties
- Plaintiff: Chesang Kipruto; Defendant: Francis Munyambu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 221 of 2009
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- SP Ouko
- Legal Topics
- Title to Land, Eviction, Mesne Profits, Possession, Special Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chesang Kipruto
Plaintiff
Francis Munyambu
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the registered proprietor of Nakuru Municipality Block 12/93.
- 2 Whether the defendant is unlawfully occupying the suit property.
- 3 Whether the plaintiff is entitled to mesne profits, eviction, costs, and interest.
Ratio Decidendi
The court found that the plaintiff is the registered proprietor of the suit property, Nakuru Municipality Block 12/93, as evidenced by the Certificate of Lease and a prior decree. The defendant, having failed to enter appearance or file a defence, provided no justification for continued occupation. The court held that mesne profits were not awardable due to lack of specific pleading and evidence, in line with established legal principles. The defendant's continued occupation was found to be unjustified, and the court ordered him to vacate the property within fourteen days, failing which eviction would ensue. Costs were awarded to the plaintiff.
Court Disposition
judgment for the plaintiff
Orders
- The defendant shall vacate Nakuru Municipality Block 12/93 within fourteen (14) days of this order, failing which he will be evicted.
- Costs are awarded to the plaintiff.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 221 of 2009
CHESANG KIPRUTO………………………...…...PLAINTIFF
VERSUS
FRANCIS MUNYAMBU………..………….……DEFENDANT
JUDGMENT
The plaintiff a medical doctor, while serving as the Provincial Medical Officer, Rift Valley, applied and was allocated Nakuru Municipality block 12/93 in 1998. This property has been occupied by successive Rift Valley Provincial Police Officers. The defendant is the current Provincial Police Officer. He has been sued in his personal capacity as the sitting tenant on the Court of Appeal authority of Beatrice Yagan Vs. Joseph Yator Civil Application No. NAI.367/96. He did not, however, enter appearance or file a defence.
The Plaintiff led evidence that he is the registered owner of the suit property; that a decree was issued in Nakuru H.C.C.C. No.273/2002; that his attempts to access the property has been frustrated by the security personnel at the gates of the suit property. I have considered that evidence and on the basis of a Certificate of Lease in respect of the suit property as well as proceedings and decree in Nakuru H.C.C.C.No.273 of 2002, Dr. Chesang KiprutoVs. A. K. Rono, I am satisfied that the plaintiff is the registered proprietor of the suit property.
He seeks in this suit, as I have earlier stated, menseprofit, eviction, costs and interest. It is now settled that mesne profit is in the form of special damages, which must not only be pleaded but evidence led to prove. No evidence has been led as to the rent the plaintiff pays, or that would accrue from the suit property or for how long the defendant has been in occupation of the property.
The Court of Appeal in Peter Mwangi Mbuthia Vs. Samow Edin Osman & Naftali Ruth Kinyua Civil Application No.NAI No.38 of 2004 stated the law on mesne profit as follows:
“As regards the payment of mesne profit, we think the applicant has an arguable appeal. No specific sum was claimed in the plaint as mesne profit and it appears to us prima facie, that there was no evidence to support the actual figure awarded…………… That being so, it must be very hard on the applicant to be forced to pay an amount which had not even been pleaded in the first place, and on which the first respondent offered no evidence at all.”
In the result I am satisfied that the defendant was issued with the necessary demand notice by learned counsel for the applicant. There is also a letter to the Commissioner of Police by the Assistant Deputy Public Prosecutor advising the former of the existence a decree in Nakuru H.C.C.C.No.273 of 2002 and asking him tocomply. I find no basis or justification for the continued occupation of the suit property by the respondent.
For the reasons stated, it is ordered that the defendant shall vacate Nakuru Municipality Block 12/93 within fourteen (14) days of this order failing which he will be evicted.
Costs are awarded to the plaintiff.
Dated, Signed and Delivered at Nakuru this 18th day of January, 2010.
W. OUKO
JUDGE