[2015] KEHC 4822 (KLR)
The plaintiffs established their legal standing as administrators of the estate of Lucian Nyaga Mugo and produced documentary evidence of ownership of the suit property. The defendants failed to contest the claim or provide any defence. The court found that the plaintiffs' evidence of ownership was uncontroverted...
Source-derived case information.
- Citation
- [2015] KEHC 4822 (KLR)
- Parties
- Plaintiff: Dick Kariuki Mugo; Plaintiff: Jane Wanja Mugo; Defendant: Mrs. Thande; Defendant: Mr. John Kimani; Defendant: Mr. George Ndiba; Defendant: Mr. Peter Thande
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 426 of 2011
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiffs; orders for eviction, demolition, and costs granted.
- Judges
- JK Sergon
- Legal Topics
- Eviction, Vacant Possession, Trespass to Land, Succession and Administration, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dick Kariuki Mugo
Plaintiff
Jane Wanja Mugo
Plaintiff
Mrs. Thande
Defendant
Mr. John Kimani
Defendant
Mr. George Ndiba
Defendant
Mr. Peter Thande
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiffs are entitled to vacant possession of L.R. No. Dagoretti/Kangemi/1201.
- 2 Whether the defendants unlawfully entered and occupied the suit property.
- 3 Whether the plaintiffs are entitled to orders of demolition and eviction against the defendants.
Ratio Decidendi
The plaintiffs established their legal standing as administrators of the estate of Lucian Nyaga Mugo and produced documentary evidence of ownership of the suit property. The defendants failed to contest the claim or provide any defence. The court found that the plaintiffs' evidence of ownership was uncontroverted and that the defendants' occupation of the property was unlawful. Applying Section 27 of the Registered Land Act (Repealed), the court held that registration confers absolute ownership, and the plaintiffs were entitled to vacant possession. The court further found that the plaintiffs were entitled to orders for eviction, demolition of illegal structures, and costs, as the...
Court Disposition
Judgment for the plaintiffs; orders for eviction, demolition, and costs granted.
Orders
- Defendants and persons claiming under them to vacate L.R. No. Dagoretti/Kangemi/1201 within 30 days, failing which plaintiffs may evict them forcefully.
- Defendants to demolish all their structures on L.R. No. Dagoretti/Kangemi/1201 within 30 days, failing which plaintiffs may demolish at defendants' cost.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT CIVIL CASE NO. 426 OF 2011
DICK KARIUKI MUGO
JANE WANJA MUGO(Suing as the legal representatives of the estate of Lucian Nyaga Mugo)..............................PLAINTIFFS
VERSUS
MRS. THANDE
MR. JOHN KIMANI
MR. GEORGE NDIBA
MR. PETER THANDE.........................DEFENDANTS
JUDGMENT
This suit was commenced by way of plaint filed on 4thOctober, 2011. The Plaintiffs sought an order for eviction of the defendants and or any person claiming under them from the suit property and handing over vacant possession to the Plaintiffs, an order that the Defendants demolish and or remove any illegal structures from L.R. No. Dagoretti/Kangemi/1201 the suit property, costs of this suit and any other or further relief that this court may deem fit to grant. Despite being served with summons, the defendant neither entered appearance nor filed defence. Interlocutory judgment was then entered and the suit went on formal proof.
The Plaintiffs' case is that they were on 30th April, 2008 issued with a grant of letters of administration intestate in respect of Lucian Nyaga Mugo deceased for purposes of administering their late father's estate pursuant to the Law of Succession Act. Amongst the property is L.R. No. Dagoretti/Kangemi/1201. Dick Kariuki Mugo (PW1) the 1st Plaintiff, produced in evidence as exhibits a copy of grant of letters of administration and a copy of the title deed to the suit property. It is alleged that after obtaining the grant the Plaintiffs embarked on identifying their deceased father's property and discovered that the Defendants had illegally entered into the suit property and erected structures which they rented out. It is alleged that despite being given notice to give vacant possession, the Defendants have refused to do so.
The Plaintiffs' submissions were a reiteration of the averments in the Plaint and the testimony of the 1st Plaintiff. The Plaintiffs cited Section 27 of the Registered Land Act (Repealed). The said section provides that the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. Trespass is an actionable claim therefore proof of ownership is a prima facie proof of possession. The Plaintiffs herein were therefore under duty to prove that the Defendants had unjustifiably entered into the suit property.
As stated earlier, the defendants neither entered appearance nor filed a defence. The case of the plaintiff therefore remains uncontroverted. In his testimony, the plaintiff produced documentary proof of their father's ownership of the suit property. I see no reason why the plaintiffs' case for vacant possession should not succeed. I also give costs of the suit and interest.
In the end judgment is entered in favour of the Plaintiffs and against the Defendants in the following terms:-
The Defendants herein namely
MRS. THANDE
MR. JOHN KIMANI
MR. GEORGE NDIBA
MR. PETER THANDE
together with those persons claiming under them, are ordered to vacate L.R. No. Dagoretti/Kangemi/1201 within 30 days from the date of this judgment default to Plaintiff are at liberty to have them forcefully evicted.
The Defendants are hereby ordered to demolish all their structures standing on L.R. No. Dagoretti/Kangemi/1201 within 30 days from the date of this judgment in default the Plaintiffs will be at liberty to demolish those structures at the Defendants' costs.
The Plaintiffs to have costs of the suit.
The Plaintiffs are directed to ensure that service of the judgment/decree is properly effected upon the Defendants personally by a competent process server before executing prayers (a) and (b) above.
Mention on 16th June, 2015 to confirm compliance of (d) above.
Dated, Signed and Delivered in open court this 18th day of May, 2015.
J. K. SERGON
JUDGE
In the presence of:
........................................... for the Plaintiffs
........................................... for the Defendants