[2017] KEELC 1694 (KLR)
The court found that the Plaintiff had proved, on a balance of probabilities, that she was the lawful owner of Plot No. 94 Dandora Jua Kali, having purchased it from the Defendant, paid the full purchase price, and received all necessary documentation. The Defendant's failure to contest the claim or present any...
Source-derived case information.
- Citation
- [2017] KEELC 1694 (KLR)
- Parties
- Plaintiff: Gladwell Gathoni Marai; Defendant: Stephen Wanjau Mwangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 369 of 2014
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Judgment for the Plaintiff as prayed in the Plaint with costs.
- Judges
- MM Gitumbi
- Legal Topics
- Ownership Disputes, Sale of Land, Injunctions, Trespass, Title Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladwell Gathoni Marai
Plaintiff
Stephen Wanjau Mwangi
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiff is the lawful owner of Plot No. 94 Dandora Jua Kali.
- 2 Whether the Plaintiff is entitled to a permanent injunction restraining the Defendant from interfering with her possession of the suit plot.
Ratio Decidendi
The court found that the Plaintiff had proved, on a balance of probabilities, that she was the lawful owner of Plot No. 94 Dandora Jua Kali, having purchased it from the Defendant, paid the full purchase price, and received all necessary documentation. The Defendant's failure to contest the claim or present any evidence left the Plaintiff's case unchallenged. The court held that the Plaintiff was entitled to exclusive possession and a permanent injunction restraining the Defendant from interfering with her quiet enjoyment of the property. The Plaintiff was also awarded costs of the suit.
Court Disposition
Judgment for the Plaintiff as prayed in the Plaint with costs.
Orders
- A permanent injunction restraining the Defendant, his agents, servants and/or employees from unlawfully interfering with the Plaintiff’s quiet possession of Plot No. 94 Dandora Jua Kali.
- The Defendant shall pay the costs of the suit to the Plaintiff.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
MILIMANI LAW COURTS
ELC. CASE NO. 369 OF 2014
GLADWELL GATHONI MARAI…………………APPLICANT /PLAINTIFF
VERSUS
STEPHEN WANJAU MWANGI ………..…RESPONDENT/ DEFENDANT
JUDGMENT
This suit was commenced by way of a Plaint dated and filed on 26th March 2014 in which the Plaintiff sought for judgment to be entered against the Defendant as follows:
a) A permanent injunction restraining the Defendant, his agents, servants and or employees form unlawfully and without any legal basis interfering with the Plaintiff’s quiet possession of Plot No. 94 Dandora Jua Kali (hereinafter referred to as the “suit plot”).
b) Costs of this suit and interest thereon.
The Pleadings
In the Plaint, the Plaintiff stated that she is the owner of the suit plot which she bought from the Defendant. It was her statement that she paid part of the purchase price to him on 11th December 2012 and the balance was paid through rent form tenants who were occupying the suit plot. She further stated that the Defendant transferred the suit plot to her and she took possession thereof and remained therein until the year 2013, when the Defendant started to interfere with it. She stated that her efforts to stop the Defendant from interfering with her quiet possession of the suit plot have proved futile hence this suit.
The Defendant did not enter appearance or file a defence and pursuant to a Request for Judgment dated 24th August 2015 and filed on 2nd September 2015, interlocutory judgment was entered against the Defendant on 8th October 2015 and the matter proceeded to formal proof on 1st March 2016.
The Evidence
The Plaintiff is the only witness who testified. It was her evidence that she bought the suit plot from the Defendant in November 2012 at a purchase price of Kshs. 350,000/-. She produced a copy of the sale agreement they entered into. It was her testimony that she first paid the Defendant Kshs. 200,000/-, and then paid Kshs. 130,000/- to him in the presence of their advocate. She further indicated that the balance of Kshs. 20,000/- was paid via water and electricity bills. It was her evidence that after settling the entire purchase price, she was given the necessary documents by the Defendant to transfer the suit plot to herself. She stated that she got a Plot Formalization Card from the then City Council of Nairobi, a copy of which she produced. It was her further evidence that after selling the suit plot to her, the Defendant moved out but later returned with other people who tried to take possession of the suit plot. She told the court that she is seeking a court order in order to evict those trespassers who are tenants of the Defendant and from whom the Defendant collects rent.
The Issues and Determination
The main issue for determination in this suit is whether the Plaintiff is the owner of the suit plot and if so whether she is entitled to an order of permanent injunction restraining the Defendant from trespassing the suit plot. It is the Plaintiff’s evidence that she bought the suit plot from the Defendant in the year 2012 at a purchase price of Kshs. 350,000/-. In support of that assertion, she produced a handwritten sale agreement between her and the Defendant. It was her further evidence that she paid Kshs. 330,000/- to the Defendant as part of the purchase price thereof and produced a duly signed Acknowledgment dated 11th December 2012 in which the Defendant acknowledged receipt of that amount. Further to the above, the Plaintiff produced a copy of the Plot Formalization Card issued to her by the now defunct Nairobi City Council as proof of her ownership of the suit plot. She also produced a receipt issued by the defunct Nairobi City Council evidencing her payment of the stand premium in respect of the suit plot. Overall and particularly in the absence of any challenge from the Defendant, this court is satisfied that the Plaintiff has proved that she is indeed the owner of the suit plot and she is entitled to exclusive use and possession thereof.
Accordingly, this court enters judgment against the Defendant as prayed in the Plaint with costs to the Plaintiff.
It is so ordered.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF SEPTEMBER 2017.
MARY M. GITUMBI
JUDGE