[2015] KEHC 8550 (KLR)
The court found that the Plaintiffs, as administrators of the estate of James Lua Maia, had established that Land Parcel No.12 Kilome Land Adjudication Section formed part of the deceased's estate and that the Defendant was an intermeddler who unlawfully entered and occupied the land. The Plaintiffs produced...
Source-derived case information.
- Citation
- [2015] KEHC 8550 (KLR)
- Parties
- Plaintiff: Daniel Kyalo Lua; Plaintiff: Wambua Lua; Defendant: Richard Muindi
- Court
- High Court
- Court Station
- High Court at Nyandarua
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 321 of 2012
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Plaintiffs' suit allowed in part; prayers (a), (b), (c), (d), (f), and (h) granted.
- Judges
- CM Kariuki
- Legal Topics
- Estate Administration, Adjudication of Land, Trespass to Land, Damages for Destruction, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kyalo Lua
Plaintiff
Wambua Lua
Plaintiff
Richard Muindi
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether Land Parcel No.12 Kilome Land Adjudication Section forms part of the estate of James Lua Maia (deceased).
- 2 Whether the Defendant is an intermeddler in the estate and liable for trespass and destruction on the suit land.
- 3 Whether the Plaintiffs, as administrators, are entitled to eviction, injunction, and damages against the Defendant.
Ratio Decidendi
The court found that the Plaintiffs, as administrators of the estate of James Lua Maia, had established that Land Parcel No.12 Kilome Land Adjudication Section formed part of the deceased's estate and that the Defendant was an intermeddler who unlawfully entered and occupied the land. The Plaintiffs produced sufficient evidence, including the Letter of Administration, consent from the Land Adjudication Officer, and an assessment report from the Forestry Department quantifying the damages caused by the Defendant. The Defendant failed to defend the suit or justify his occupation. The court held that the Plaintiffs had proved their case on a balance of probabilities and were entitled to the...
Court Disposition
Plaintiffs' suit allowed in part; prayers (a), (b), (c), (d), (f), and (h) granted.
Orders
- Declaration that Land Parcel No.12 Kilome Land Adjudication Section forms part of the estate of James Lua Maia (deceased) and the Defendant is an intermeddler.
- Order of eviction of the Defendant from Land Parcel No.12 Kilome Land Adjudication Section.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CIVIL SUIT NO.321 OF 2012
DANIEL KYALO LUA
WAMBUA LUA (Suing as Administrators to the Estate of the
late JAMES LUA MAIA) ……...……................…….. PLAINTIFFS
VERSUS
RICHARD MUINDI …………....……........………….. DEFENDANT
J U D G M E N T
1. By a Plaint filed on 24. 8.2012 the Plaintiff instituted the instant suit claiming the following reliefs:
A declaration that Land Parcel No.12 Kilome Land Adjudication Section forms part of the estate of James Lua Maia (deceased) and that the Defendant is an intermeddler in the estate.
An order of eviction of the Defendant from Land Parcel No.12 Kilome Land Adjudication Section.
A permanent injunction restraining the defendant, his agents, servants and/or any other persons acting on his behalf from occupying, using or in any way interfering with the suit land.
Compensation for the felled trees at the value of KShs.555,349/-.
Mesne profits
Costs of this suit and
Interest on (d) and (e)
Any other or further relief as this Honourable Court may deem fit and just to grant.
2. On 2. 4.2013 the Defendant was served with summons but he never entered appearance or file defence. This prompted the Plaintiff to request judgment on 17. 9.2013 and thereafter the matter came for formal proof on 11. 11. 2014. The Plaintiff pleads that Land Parcel No.12 Kilome Adjudication Section hereinafter referred to as suit land is registered in his deceased father’s name; though he is appointed administrator of his father’s estate and there is a pending HC. Succ. No.150/1992, in Machakos awaiting distribution of estate which is set to be undertaken.
3. However, in 2007 the Defendant entered suit land and commenced unlawfully committing the acts of waste, trespass, destruction including cutting down trees, cultivation and planting of Napier grass. He is grazing, constructing green house, fish pond and erecting buildings thereon. The damage to the land and the trees and vegetation was assessed at KShs.555,349/-. The Plaintiff therefore seeks the prayers in the Plaint.
4. During hearing, the Plaintiff produced report by Forestry Department Kilungu/Kilome to support his claim for damages amounting to 555,349/-. The Plaintiff also produced Letter of Administration to confirm that he is the appointed administrator of the estate of James Lua the registered owner. The Plaintiff procured land Adjudication Officer consent on 27. 4.2011 to institute instant suit against the Defendant. Prior to the grant of consent the Defendant had been ordered by the Land Adjudication Officer vide letter dated 29. 11. 2010 to vacate suit land.
5. The Defendant has failed to defend suit despite service of summons to justify his occupation and user of the suit land. The court thus finds no reason to deny the Plaintiff the benefit of doubt and hold that the Plaintiff has proved the Defendant liability to the claim herein on a balance of probabilities as required by the law. The estate is yet to be distributed and thus subject of HCC. Succ. No.150/92 under Section 79 of Cap 160. The Administrator is a personal representative of the deceased for all purposes of grant and property of deceased vest in him subject to limitations imposed by the grant.
6. Section 82 of Cap 160 stipulates that, a personal representative is empowered to enforce by suit or otherwise all causes of action which survive deceased or arise out of his estate. It is trite law that special damages, including mesne profit have to be pleaded and proved. The Plaintiff has pleaded claim of damages of KShs.555,349 and supported same by way of assessment report. As for mesne profit, the Plaintiff has not proferred any material to lay the basis of grant of the same and thus same remains unproved.
7. The court thus makes the following orders:
The following prayers in the Plaint are granted (a), (b), (c), (d), (f) and (h).
DatedandDeliveredatMachakosthis13thday ofMarch, 2015.
CHARLES KARIUKI
JUDGE