[2004] KEHC 793 (KLR)
The plaintiff lawfully acquired the suit property through a public auction after the defendant defaulted on a loan. The plaintiff paid the full purchase price, the bank executed all necessary documents, and the plaintiff was registered as proprietor and issued with a title deed. Despite notice to vacate, the...
Source-derived case information.
- Citation
- [2004] KEHC 793 (KLR)
- Parties
- Plaintiff: Jeremiah O. Samba; Defendant: Samson Osano Ochi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 24 of 2004
- Procedural Posture
- Civil Case / Formal Proof After Interlocutory Judgment Due to No Defence
- Outcome
- Judgment for the plaintiff as prayed.
- Judges
- K Bauni
- Legal Topics
- Eviction, Mesne Profits, Public Auction, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah O. Samba
Plaintiff
Samson Osano Ochi
Defendant
Procedural Posture
Civil Case / Formal Proof After Interlocutory Judgment Due to No Defence
Legal Issues
- 1 Whether the plaintiff is entitled to eviction of the defendant from land parcel No. Nyamira/Nyansiongo Settlement Scheme/220.
- 2 Whether the plaintiff is entitled to mesne profits for the period the defendant remained in occupation after transfer of title.
Ratio Decidendi
The plaintiff lawfully acquired the suit property through a public auction after the defendant defaulted on a loan. The plaintiff paid the full purchase price, the bank executed all necessary documents, and the plaintiff was registered as proprietor and issued with a title deed. Despite notice to vacate, the defendant remained in occupation without any legal right or defence. The court found that the plaintiff was entitled to possession and to mesne profits for the period of wrongful occupation. The absence of a defence or appearance by the defendant left the plaintiff's evidence unchallenged, justifying judgment as prayed.
Court Disposition
Judgment for the plaintiff as prayed.
Orders
- The defendant, his agents, and/or servants shall vacate land parcel No. Nyamira/Nyansiongo Settlement Scheme/220 within 30 days, failing which they shall be evicted.
- The plaintiff is awarded KES 60,000 as mesne profits for one year.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CIVIL CASE NO. 24 OF 2004
JEREMIAH O. SAMBA ………………………………………………. PLAINTIFF
VERSUS
SAMSON OSANO OCHI …………………………………………… DEFENDANT.
JUDGMENT
The plaintiff’s claim against the defendant is for eviction from land parcel No.Nyamira/Nyansiongo Settlement Scheme/220. He also prays mesne profits. Costs of suit and interest.
The defendant did not file memo of appearance nor did he file a defence. Interlocutory judgment was entered and case proceeds for formal proof. Plaintiff who is an Advocate told court that on 9/4/98 he purchased the land in question in a public auction. Apparently defendant had obtained a loan from National Bank and defaulted in payment. The bank then instructed Betico Auctioneers to sell the land which had been charged to secure the loan. The auction was a public case and the plaintiff was declared the highest bidder with a bid of shs.400, 000/=.
He paid shs.100, 000/= being 25% down payment. After that the defendant filed KISII CM CC.NO. 256 OF 1998. He got orders of injunction. Subsequently the suit was dismissed. On www.kenyalaw.org 13/2/02 he paid the balance of the Purchase Price to the bank. The bank executed all the necessary documents and the land was registered in his name on 20/3/04. He was issued with title deed. The defendant was however still in occupation of the land. Bank wrote to him on 19/5/03 asking him to vacate the land. He however has refused to do so. He has two tenants on the land. They cultivate on the land.
He told court if he was cultivating the land he would get about 60 bags of maize in a year. A bag of maize goes for shs.1000/=.
As said defendant did not file a defence. There is no doubt that the plaintiff properly purchased the land. I therefore enter judgment in his favour as prayed. The defendant, his agents, and or servants should vacate the land within 30 days failing which they should be evicted.
I also award the plaintiff shs.60, 000/= mesne profits for one year. He too will have costs and interest from today’s date.
Dated on 10th November 2004
KABURU BAUNI
JUDGE.
10/11/04
Mr. Kerosi for the Plaintiff.
KABURU BAUNI
JUDGE