[2011] KEHC 1477 (KLR)
The court found that the plaintiff, as the registered proprietor of the suit property, had proved its case for trespass against the defendant, whose occupation and construction on the land was unauthorized and unchallenged. The evidence presented by the plaintiff's witness was uncontroverted, and the defendant...
Source-derived case information.
- Citation
- [2011] KEHC 1477 (KLR)
- Parties
- Plaintiff: General Plastics Limited; Defendant: John Hinga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1471 of 2007
- Procedural Posture
- Civil Suit / Formal Proof Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Trespass to Land, Vacant Possession, Mesne Profits, Damages for Trespass
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
General Plastics Limited
Plaintiff
John Hinga
Defendant
Procedural Posture
Civil Suit / Formal Proof Judgment
Legal Issues
- 1 Whether the defendant wrongfully entered and took possession of the plaintiff's land.
- 2 Whether the plaintiff is entitled to vacant possession of the suit property.
- 3 Whether the plaintiff is entitled to damages for trespass.
Ratio Decidendi
The court found that the plaintiff, as the registered proprietor of the suit property, had proved its case for trespass against the defendant, whose occupation and construction on the land was unauthorized and unchallenged. The evidence presented by the plaintiff's witness was uncontroverted, and the defendant failed to appear or defend the suit. The court accepted the plaintiff's abandonment of the claim for mesne profits and focused on the claim for vacant possession and damages for trespass. The court held that the plaintiff was entitled to vacant possession of the property and awarded Kshs. 50,000 as general damages for trespass, together with costs and interest at court rates.
Court Disposition
Judgment for the plaintiff.
Orders
- The plaintiff is granted vacant possession of LR No. 13413.
- The defendant shall pay Kshs. 50,000 as damages for trespass.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELC SUIT NO. 1471 OF 2007
GENERAL PLASTICS LIMITED...................................................................................PLAINTIFF
VERSUS
JOHN HINGA............................................................................................................DEFENDANT
JUDGMENT
The plaintiff is a limited liability company and the registered proprietor of a parcel of land known as LR No. 13413 situate in Embakasi within the City of Nairobi. In the year 2002 or thereabout, the plaintiff discovered that the defendant had wrongfully entered and taken possession of the suit property and proceeded to erect or cause to be erected a building thereon. As a result the defendant has trespassed onto the plaintiffs land.
By reason of the defendant’s action, the plaintiff has been deprived of the use and enjoyment of the said parcel of land and has suffered loss and damage. In the plaint dated 24th November and filed on 3rd December, 2004 the plaintiff claimed as against the defendant vacant possession, mesne profits and damages for trespass. The record shows that the defendant was served with summons to enter appearance but did not enter any appearance or file any defence. This suit was therefore listed for formal proof.
At the hearing one Victor Lous Fernandes who is the General Manager of the plaintiff gave evidence. Before them he had filed a witness statement dated 6th April, 2011 which he adopted at the time of the hearing. He produced documents relating to the purchase of the said purchase of land by the plaintiff and and the registered title in its name.
The evidence adduced by this witness is uncontroverted. I watched him give evidence and assessed his demeanour. I have no doubt that what he told the court is the truth and in the absence of any rejoinder from the defendant I find that the plaintiff’s case has been proved.
The witness told the courthe had abandoned prayer (b) of the plaint which related to mesne profits. His case is that the plaintiff is mostly interested in the possession of the property. Accordingly, there shall be judgment for the plaintiff against the defendant for vacant possession as prayed in the plaint.
The defendant occupied the plaintiff’s property without any authority and in so doing denied the plaintiff the use and enjoyment thereof. In that regard I award a sum of Kshs. 50,000/= damages for trespass. The plaintiff shall also have the costs of the suit and interest at court rate.
Orders accordingly.
Dated, signed and delivered at Nairobi this 21st day of June, 2011
A.MBOGHOLI MSAGHA
JUDGE