[2023] KEELC 17125 (KLR)

Jabavu Village Limited v Curzon (Environment & Land Case E040 of 2022) [2023] KEELC 17125 (KLR) (27 April 2023) (Judgment)

Neutral citation: [2023] KEELC 17125 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E040 of 2022

EK Wabwoto, J

April 27, 2023

Between

Jabavu Village Limited

Plaintiff

and

Paul Curzon aka Pavel Luvedit Vaclav Curzon

Defendant

Judgment

1. This suit was instituted by the Plaintiff vide a plaint dated 8th February 2022 wherein the Plaintiff sought for the following orders against the Defendant: -a.An order of permanent injunction restraining the defendant by himself, his agents, servants, employees, proxies or anyone under his instructions or authority from trespassing, taking possession of occupying, demolishing structures or in any manner whatsoever interfering with the Plaintiff’s use and occupation of the property known as LR No. 209/3163 IR 24467 located in Nairobi.b.An order directing the officer Commanding Kileleshwa Police Station to supervise and ensure compliance with the court orders.c.General damages for trespass.d.Costs of the suit.

2. The Defendant despite being served with all the court process did not enter appearance. Neither did they file a defence. In consequence and pursuant to order 10 rule 9 of the Civil Procedure Rules, the case was set down for hearing as an undefended case on 8th February 2023.

3. In a nutshell, the Plaintiff’s case from the pleadings is that he is the registered proprietor of property known as LR No. 209/31363 IR 24467 located in Nairobi since 3rd August 2017 and that the Defendant or his agents trespassed onto the suit property on 2nd February 2022 and made attempts to evict him and stop his ongoing construction as a result of the said actions he instituted the said suit.

4. The case proceeded as an undefended case under order 10 rule 9 of the Civil Procedure Rules. Abdulkadir Hussein a director of the Plaintiff testified as the only witness in the suit. He adopted his witness statement dated 26th September 2022 and produced the following documents as his evidence in chief. The documents were produced in the following order: -i.Certificate of Title for L.R 209/3163 IR 24467 as Plaintiff Exhibit 1. ii.Letter dated 10th November 2021 as Plaintiff Exhibit 2. iii.Sale Agreement between Martin Ngao Muthama & Stephen Kiriaruki Nkanyaana and Jabavu Village Limited as Plaintiff Exhibit 3. iv.Transfer between Martin Ngao Muthama & Stephen Kiriaruki Nkanyaana and Jabavu Village Limited as Plaintiff Exhibit 3. v.Receipt dated 19th July 2017 for Gulf African Bank as Plaintiff Exhibit 4. vi.Stamp duty payment receipt as Plaintiff Exhibit 5.

5. He stated that after the Plaintiff had commenced development on the property, the Advocates for the Defendant ACRON Law Advocates LLP wrote to the Plaintiff claiming that the Defendant was the owner of the suit property and sort to known whether the Plaintiff had entered into any agreement to acquire the suit property from other persons.

6. It was also the Plaintiff’s testimony that upon receiving the letter of 10th November 2021, the Plaintiff became apprehensive that there are persons who were making attempts at fraudulently changing ownership of the suit property. The Plaintiff conducted as search and the records at the Land Registry indicate that the Plaintiff is the current registered owner of the suit property. The Plaintiff did not hear from the Defendant or his advocates again until on 20th February 2022 when persons who had claimed to have been instructed by the Defendant trespassed onto the suit property and threatened to evict the employees of the Plaintiff who were supervising the ongoing construction.

7. The Plaintiff seeks this Court’s intervention in granting her the necessary prayers as sought in the Plaint.

8. The Plaintiff filed its written submissions dated 22nd February 2023. The Plaintiff submitted that it had proved its case to the required standard and was entitled to the orders sought. The following issues were outlined for consideration by the Court;i.Whether the Plaintiff is entitled to the orders of permanent injunction against the Defendant.ii.Whether the Plaintiff is entitled to General Damagesiii.Who should bear the costs of the suit.

9. The main issue for determination is whether the plaintiff has proved its case against the Defendant to the required standard to warrant the grant of the reliefs sought.

10. Although the suit was undefended, the Plaintiff had a duty to formally prove her case on a balance of probabilities as is required by law.

11. In the case of Kirugi and Another v Kabiya & 3 others [1987] KLR 347 the Court of Appeal held that;“The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof”. Likewise, failure by the Defendant to contest the case does not absolve a plaintiff of the duty to prove the case to the required standard.”

12. Similarly, in the case of Gichinga Kibutha v Caroline Nduku [2018] eKLR the Court held that;“It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”

13. PW1 stated that the Plaintiff was the registered owner of the suit land as was evidenced from the documentary evidence that was produced as Plaintiff’s Exhibit 1, 3 and and 4. The Plaintiff also produce letters from the Defendant’s Advocates inquiring on the status of the suit property.

14. As already stated the Defendant never filed a defence, he did not adduce any evidence during trial. In the case of Shaneebal Limited v County Government of Machakos [2018]eKLR, the court cited the case of Janet Kaphiphe Ouma & Anor v Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007, and held that:“In this matter apart from filing its statement of defence, the Defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted.”

15. In essence the evidence tendered by the Plaintiff remained unchallenged however the Plaintiff adduced a letter from the Defendant Advocate dated 10th November 2021. The said letter made reference to Milimani ELC No. 993 of 2016 which had given orders in favour of the Defendant. I have taken the liberty to peruse the court file in Milimani ELC No. 993 of 2016 and I note that the Court delivered the following judgment in favour of the Defendant on 16th November 2021 as follows; I hereby enter judgment for the Plaintiff against the Defendants on the following terms;1. The registration of the transfer of all that parcel of land known as L.R No. 209/3163(the suit property) in the names of the 1st and 2nd Defendants that was effected as entry No. I.R 24467/14 and any subsequent transfer of the suit property are hereby cancelled.2. The 1st and 2nd Defendants shall vacate and hand over possession of the suit property to the Plaintiff within thirty (30) days from the date hereof in default of which the plaintiff shall be at liberty to apply for their forceful eviction from the suit property.3. Kshs. 15,000,000/- as general damages for trespass payable by the 1st and 2nd Defendants.4. Costs of the suit payable by the 1st, 2nd and 3rd Defendants.

16. Pursuant to Section 44 (1) and 2(d) of the Evidence Act, cap 80 the said judgment is admissible. No evidence was adduced whether the said judgment was set aside nor overturned by the Court of Appeal. In the premises this court cannot shut its eye on the issue since it relates to the suit property and the parties herein. The Plaintiff ought to have challenged the said judgment. In view of the foregoing I am unable to grant the reliefs sought by the Plaintiff, in the circumstances the suit is hereby dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL 2023. E. K. WABWOTOJUDGEIn the presence of: -Mr. Wesonga h/b for Mr. Kiprop for the Plaintiff.N/A for the Defendant.