[2013] KEHC 6128 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENTAL & LAND DIVISION

ELC CASE NO.352OF 2010

EPHANTUS KAGUTHA MWANGI..............................PLAINTIFF

-VERSUS-

COUNTY COUNCIL OF THIKA.........................1ST DEFENDANT

WIMANO WA KYAUMA WOMEN’S GROUP…..2ND DEFENDANT

JUDGEMENT

The Plaintiff by a plaint dated 21st July, 2010 filed the instant suit and seeks judgment against the defendants jointly and severally for:-

Delivery of vacant possession of Plot No. 90 Ithanga Market and/or in the alternative;

Special damages in the sum of Kshs. 80,178. 50 plus interest thereon at commercial rates from 2004 to date, or;

Payment of the full value of the suit property at commercial rates as at the judgment date, whichever sum is higher.

An order of mandamus against the 2nd defendant to remove any and all structures erected on the suit property.

Permanent injunction orders as against the 2nd defendant to refrain from construction of any structures on the suit property.

General damages for trespass.

Loss of user from September, 2004 till the date of delivery of vacant possession or payment as in prayer (a) above.

Interest on 9a) (i) and (ii) and (e) above at commercial rates.

Costs and interest at court rates.

Any other relief the Honourable Court deems fit and just to grant.

The plaintiff’s claims is that the purchased the suit property in 2004 and paid the requisite transfer processing fees to the 2nd defendant who duly approved the transfer to the plaintiff.

The plaintiff has since the approval of the transfer paid and continues to pay all dues payable to the 1st Defendant in respect to the said plot.

The plaintiff claims the 1st defendant illegally and fraudulently allocated the suit plot to the 2nd defendant and has allowed and/or permitted the 2nd defendant to occupy and utilise the suit property to the exclusion of the plaintiff. The 1st defendant filed a defence and denies allocating a plot No. 90 Ithanga market to the 2nd Defendant and/or allowing the 2nd defendant to construct and/or trespass on the said plot. The 1st defendant states it is the plaintiffs’ responsibility to evict any trespassers from his property. The 2nd defendant did not appear nor file a defence in the suit.

The matter was listed for hearing before me on 26th December, 2012 when on the application for adjournment by the 1st Defendant I adjourned the hearing to 24th January, 2013 when the matter was once more listed for hearing before me. On the said date only the plaintiff together with his counsel appeared and I allowed the hearing to proceed in the absence of the plaintiff since the hearing date had been fixed in court in the presence of the 1st defendant’s counsel.

The plaintiff testified as PW1 and he adopted the witness statement made by him on 24th April, 2012 as evidence and relied upon and produced the bundle of documents filed in court on 10th March, 2012. It is the plaintiffs’ evidence that he purchased the suit property in August 2004 from Cephas Mbugua Ngugi for Kshs. 70,000/= and paid all the necessary transfer fees to the 1st Defendant and that on 17th August 2004 the 1st defendant’s Town Planning Committee approved the transfer to the plaintiff and henceforth the plaintiff has continued to pay all the council dues to the 1st Defendant but he 1st Defendant has despite repeated demands neglected and/or refused to point out the Plot beacons to the plaintiff. The plaintiff states that he is the rightful and legal owner of Plot No. 9 Ithanga Market and wishes the court to direct the defendant to point out the plot beacons to him and for the 2nd defendant to vacate the plot and deliver vacant possession to the plaintiff.

Alternatively, the plaintiff seeks compensation from the 1st defendant in the sum of Kshs. 500,000/= being the current market value of a similar plot in the same locality.

The plaintiff called one witness one Zacharia Makenzi Ndeti who testified as PW2. The witness is a practising valuer and he testified that he on the instructions of the plaintiff visited the suit property for purposes of advising on the current value of the plot. The witness produced a valuation report marked as exhibit 2. As per the valuation he confirmed there is a permanent building on the suit property. The witness valued plot No. 90 Ithanga Trading Centre Thika District on the basis of it being undeveloped at Kshs. 500,000/=. This according to the witness would be the current market value of Plot NO. 90 Ithanga Trading Centre in a vacant state.

I have reviewed the pleadings and the evidence tendered by the plaintiff and make the following factual findings;

That the plaintiff purchased the subject suit property from Cephas Mbugua Ngugi and the 1st defendant duly approved the transfer of the property to the plaintiff after the necessary processing fees for the transfer was paid to the 1st defendant.

That the plaintiff has since 2004 when the transfer was effected to him continued to pay to the 1st defendant the ground rent and rates as per the payment receipts issued by the 1st defendant to the plaintiff and produced in evidence.

That the plaintiff has not been able to take possession and develop the plot as the 1st defendant has failed to point out the plot beacons of the plot and that the 2nd defendant has with the approval of and/or concurrence the 1st defendant occupied and constructed a permanent building on the suit property.

That a vacant plot of similar size to the suit property at the Ithanga market would have a current market value of Kshs. 500,000/=.

The 1st defendant did not participate in the hearing and the 2nd defendant did not appear in the case at all and nor file any defence and in the result the evidence of the plaintiff was uncontroverted. The plaintiff testified that he has made various efforts to have the county council point out his plot to him and/or in case there is a case of double allocation the 1st defendant to allocate the plaintiff an alternative plot. There is no doubt that in the records of the 1st defendant the plaintiff is recorded as the owner of Plot No. 90 Ithanga Market as the 1st Defendant continues to issue the plaintiff with rates and land rent demand notes which the plaintiff has dutifully paid. As the 2nd defendant never appeared in this suit it is not clear and/or apparent what the 2nd Defendant’s to or interests claim to Plot No. 90 Ithanga Market is but if there is a permanent building on the plot as the plaintiff states, then the construction of the same must have been with the approval of the 1st defendant otherwise it would have been condemned as an illegal structure and ordered to be demolished.

Having regard to all the evidence tendered by the plaintiff I am satisfied that the plaintiff as at 11th August, 2004 when the 1st defendant approved the transfer to him became legally entitled to ownership of Plot No. 90 Ithanga market, Thika county. As the plaintiff claims the 1st defendant is yet to point out the plot beacons to him I do not consider that it has been established that the 2nd defendant is in trespass onto the plaintiff’s plot and I therefore cannot grant the prayers prayed under prayers (b) (c) and (d) of the Plaint. The plaintiff has also not demonstrated what loss and/or damage he has suffered on account of loss of user and I accordingly cannot grant any orders under payer (e) of the plaint.

In the premises therefore I enter judgment against the 1st defendant in favour of the plaintiff in the following terms:-

That the 1st defendant do point out the beacons of Plot No. 90 Ithanga Market Thika County to the plaintiff within 45 days of being served with the decree in this case and/or;

Failing (a) above judgment be and is entered in favour of the plaintiff against the 1st defendant for Kshs. 500,000/= being the current market value (undeveloped) of Plot 90 Ithanga market whereupon the plaintiff will relinquish any further claim to the suit property.

Interest at court rates on (b) above from date of judgment until payment of the amount in full.

Costs of the suit with interest at court rates.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JUNE 2013.

J. M. MUTUNGI

JUDGE

In the presence of:

………………………………………….............……… for the Plaintiff

……………………..............................…………. for the Defendants