[2003] KEHC 703 (KLR)
The court found that the plaintiffs had established their lawful ownership and entitlement to LR No. 209/1911 through production of the grant of probate, power of attorney, and title documents. The defendants, having failed to enter appearance or contest the suit, were deemed to have admitted the plaintiffs' claims....
Source-derived case information.
- Citation
- [2003] KEHC 703 (KLR)
- Parties
- Plaintiff: Derek William Pema; Plaintiff: Another (Power of Attorney holder for co-registered proprietor); Defendant: Kiriga Mwangi; Defendant: Assistant Chief of Ngara West
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1842 of 2002
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiffs as prayed in the amended plaint
- Judges
- JA Aluoch
- Legal Topics
- Ownership Dispute, Probate and Administration, Trespass, Title Deeds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Derek William Pema
Plaintiff
Another (Power of Attorney holder for co-registered proprietor)
Plaintiff
Kiriga Mwangi
Defendant
Assistant Chief of Ngara West
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiffs are the lawful owners of LR No. 209/1911.
- 2 Whether the defendants unlawfully entered and constructed on the suit premises.
- 3 Whether the plaintiffs are entitled to the reliefs sought in the amended plaint.
Ratio Decidendi
The court found that the plaintiffs had established their lawful ownership and entitlement to LR No. 209/1911 through production of the grant of probate, power of attorney, and title documents. The defendants, having failed to enter appearance or contest the suit, were deemed to have admitted the plaintiffs' claims. The evidence showed the defendants unlawfully entered and constructed on the property without the plaintiffs' consent. Accordingly, judgment was entered for the plaintiffs as prayed in the amended plaint, granting them the reliefs sought, including orders for possession and restraint against the defendants.
Court Disposition
judgment for the plaintiffs as prayed in the amended plaint
Orders
- Judgment entered for the plaintiffs against the defendants jointly and severally as prayed in the amended plaint at paragraphs a, b, c, d, e, and f.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
civ case 1842 of 02
DEREK WILLIAM PEMA & ANOTHER…………PLAINTIFF
VERSUS
KIRIGA MWANGI & ANOTHER ………………..DEFENDANT
JUDGMENT
By a plaint filed in court on 23rd December, 2002, the plaintiff’s sued the 2 defendants jointly and severally seeking orders as per the plaint which was subsequently amended vide amended plaint dated 13th January, 2003, filed in court the same day.
The prayers in the amended plaint remained the same except for the description of the second defendant as “the Assistant Chief of Ngara West”. This appears in para 6 of the amended plaint.
None of the plaintiffs entered appearance. The suit premises is LR No. 209/1911 currently registered in the names of one Alfred John Pema, now deceased, and Alfred John Pema a brother of the deceased John Pema, who resided overseas.
The 1st plaintiff is the son of the said Alfred John Pema (deceased). The 2nd plaintiff, advocate of the High Court of Kenya, holds a power of attorney from the second plaintiff who resides overseas.
The suit premises has a residential house, which the family of the 1st plaintiff used to occupy until the death of their father, then they moved out, leaving the house empty. The 1st plaintiff who gave evidence in court testified that his father who was one of the registered proprietors of the suit premises died on 8th January 1993. The 1st plaintiff is the administrator of his late father’s estate. He holds a Grant of Probate which he produced in court as an exhibit. He also produced as Ex.2, a copy of a Power of Attorney his uncle, the co-registered proprietor of the property gave to the second plaintiff.
The plaintiff explained that the family moved out of the suit premises because of insecurity, and from then on, it remained empty and was badly vandalized by unknown people. At some point, the plaintiff explained, his uncle returned from Canada, and they valued the property with a view to selling it. They were, however, surprised to find that somebody, to them was building a wall around the property. He identified the person as the 1st defendant when he approached and the latter directed him to go and ask the area chief.
The plaintiff wrote to his advocate, a letter he produced as Ex.3 in court. He also produced the original title deed of the property. It was in his grandmother’s name, but subsequently transferred to his father and uncle. As a holder of a Grant of Probate of his father, he is now one of the owners of this property. The plaintiff produced the photos he took of the suit premises where the defendants were constructing a roof and a fence. He produced them in court as exhibits.
The defendants never entered appearance and also never turned up in court for the hearing with the result that the plaintiff’s claims were not disputed. I therefore find judgment for the plaintiffs against the defendants jointly and severally, as prayed in the amended plaint at paragraphs a,b,c,d,e and f.
Dated at Nairobi this 10th day of July, 2003.
JOYCE ALUOCH
JUDGE