[2009] KEHC 2689 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CIVIL CASE 95 OF 2003

JOHN WACHIRA WANG’OMBE ...............................PLAINTIFF

VERSUS

CHARLES MUGAMBI WANG’OMBE ............... 1ST DEFENDANT

CHARLES GACHUYA WANG’OMBE .............. 2ND DEFENDANT

J U D G M E N T

By an amended plaint dated 31st March 2004 and filed in court on 1st 2004 John Wachira Wangombe hereinafter referred to as “the Plaintiff” prayed as against Charles Mugambi Wang’ombe and Charles Gachuiya Wang’ombe hereinafter referred to as “the defendants” for an order of eviction directed at them, their families and damages for Trespass. The Plaintiff asked for costs of the suit and interest as well.

The Plaintiff’s claim was founded on the following facts, that he was the absolute registered owner of LR No. 12618/1 Naromoru hereinafter referred to as “the suit premises” pursuant to the provisions of Registration of titles Act. However the defendants without any colour of right unlawfully and wrongfully entered the suit premises and have since refused to vacate the same. Accordingly the defendants’ action constitute trespass onto private property, was Wanton and gross violation of the Plaintiff’s proprietory rights.

Upon the suit papers being served on the Defendants they reacted by filing a memorandum of appearance and subsequently a joint defence through Messrs Jechoniah Oraro & Associate Advocates. In their defence they pleaded that the amended plaint was bad in law and should be struck out for non-compliance with the provisions of civil procedure rules. The defendants went on to aver that the suit premises were initially registered in the name of Stephen Wang’ombe Wokabi, deceased. The plaintiff and defendants being sons of the deceased were beneficiaries of his estate that comprised the suit premises. The purported registration of the plaintiff as the absolute proprietor of the suit premises therefore was fraudulent, null and void. The defendants went on to give the particulars of fraud committed by the plaintiff. The defendants then concluded their defence by stating that by virtue of the plaintiff being an executor de son tort with regard to the suit premises of which the defendants have beneficial interest, their continued occupation of the same was lawful until when the distribution of the entire estate of the deceased will have been completed. Despite the aforesaid pleading, the defendants surprisingly did not mount a counterclaim.

On 2nd July 2007, the Plaintiff filed an application for injunction to restrain the defendants, their agents, servants and or anyone of them from building or in any way interfering with the occupation and possession of the suit premises until the full hearing and determination of the suit. Much as the application was vehemently resisted, it was in the end granted. Thereafter thee followed several interlocutory applications filed by the plaintiff against the defendants, their spouses, children etc. Some of those applications were allowed whilst others were denied.

Eventually the full hearing of the suit commenced before me on 26th March 2009. At the very commencement of the hearing of the suit, Mr. Oraro, learned advocate for the defendants pointed out that the 1st defendant had since passed on in November 2006 and there had been no substitution. Accordingly this suit as against him had abated by operation of the law. The suit thus proceeded only against the 2nd defendant.

First to take the stand was the Plaintiff. He testified that the suit premises were his and produced in evidence, certificate of title to that effect. He became the registered owner of the same on 14th May 1997. The 2nd defendant was his step brother and had entered the suit premises with part of his family without his consent. This defendant had his own land at Rumuruti though. He denied that the suit premises initially belonged to their deceased father. He claimed that he had bought the suit premises with his own resources though. Following their occupation as aforesaid the defendants tried to lease it to other people but all in vain as he moved to court and obtained an injunction. It was his evidence that he had intended to lease it out the house on the suit premises that would have fetched him Kshs.5000/= per month. The defendants had been in occupation of the suit premises for 10 years. The suit premises literally border Naromoru town. He intended also to plant wheat which would have fetched him 1. 3 million per annum. He prayed that the court do issue an order of eviction and mesne profits at the rate of Kshs.1,300,000/= per annum. He also prayed for costs.

Cross-examined by Mr. Oraro, he responded that he had bought the suit premises from the Government. The defendants had entered the suit premises sometimes in 1997. Until 2003, the defendants had been assuring him that they would voluntarily vacate the suit premises. When they refused to vacate, it is then that he filed the instant suit. The suit premises measure about 23. 7 Hectares. Between 1998 and 1999 he had planted wheat. Thereafter he stopped and started planting hay. The 2nd defendant occupies an acre thereof and the house. This house would have fetched him Kshs.5000/= per month which is the market rent in the area had he rented it out as he had intended. He instructed Providence auctioneers to levy distress for rent against the 2nd defendant though with regard to the same house. It was done and the defendant vacated the house. Since then it has remained vacant.

The 2nd defendant testified and called one witness. He testified that the plaintiff was a step brother. That the suit premises did not belong to him as it was purchased by their late father in 1980 from the Government. Later his deceased father asked him to join him in the suit premises so as to take care of livestock. He gave him the house to stay in. When their father died he went back to Nyahururu in 2002 and left behind his son, Joseph Gichuru Gachuiyain occupation of the house. He denied having trespassed on the suit premises as all along he thought that the suit premises belonged to their father. He denied having leased the suit premises nor cultivated the same. That the plaintiff had always cultivated the suit premises by planting hay. The house on the suit premises did not belong to the plaintiff either. It was his since he had been given the same by their deceased father. He confirmed that they had not petitioned for a grant of letters of administration for their late father’s estate. Finally he stated that he did not know that the plaintiff had title to the suit premises.

Under cross-examination by Mr. Wahome, learned advocate for the plaintiff, the defendant maintained that the suit premises belonged to their father but had nothing to show for that bold statement. He also had nothing to show that his father had invited him to the suit premises. He conceded though that his son stays on the suit premises on his instructions. Though he filed a defence to the plaintiff’s claim, he had not counterclaimed. He stated that he was not aware that the Plaintiff had the suit premises registered in his name long before their father passed on. He vowed not to vacate the suit premises. Questioned by court he responded that he was older to the Plaintiff. That he was staying on his own land in Nyahururu that measures 20 acres which he bought. That he had left the suit premises after the plaintiff had told him to and that he had left in the year 2000 knowing that the suit premises belonged to the plaintiff.

The only witness called by the defendant was Joseph Gichuru Gachuiya, his son. He testified that he used to stay on the suit premises. He had stayed on the suit premises between 1998 and 12th January 2009 when he was evicted through a court order. His assets had been attached and auctioned on the basis that he was a tenant and that he had been in arrears of rent. The arrears of rent then were Kshs.72,000/=. Since then he had never gone to the suit premises. That marked the close of the defendant’s case.

Thereafter parties agreed to file and exchange written submissions. This was subsequently done. I have had occasion to carefully read and consider them. Having considered the pleadings, the evidence led, the written submissions and the authorities cited, only five issues emerge for determination by this court.

(1)Whether the plaintiff is the registered owner of the suit premises.

(2)Whether the defendant is in occupation of the suit premises and if so, legally or as a trespasser

(3)Whether orders of eviction should issue against him.

(4)Damages

(5)Costs

Dealing with the 1st issue, the plaintiff during the trial produced a certified true copy of the original certificate of title in respect of the suit premises. The title so tendered was in respect of LR No. 12618/1. The authenticity of this title was not challenged by the defendant through any other evidence oral or documentary. That being the case it can be safely assumed that the suit premises belongs to the Plaintiff. The defendant was content with the assertion that as far as he was concerned the suit premises belonged to his father and that he is the one who bought it from the Government and called him to join him therein so that he could take care of the livestock. He did not offer any evidence as to how their deceased father had bought the suit premises. No agreement of sale was tendered in evidence. He did not testify as to the amount of the purchase price if any, and if paid, the mode of payment. If it was true that their deceased father had purchased the suit premises, records of such transaction must be held by the relevant land registry that would have shade light on the assertion that indeed their deceased father bought the suit premises. Such records would have shown the entire history of the suit premises. It would have entries of all those persons who have at one time or another been proprietors of the suit premises their father included. In the absence of contrary evidence to counter the certificate of title tendered in evidence, we can rightly assume that indeed the suit premises belongs to the plaintiff. It is also surprising that following the death of their father, the defendant was asked to vacate the suit premises by the plaintiff and he willingly did so. He moved out to his parcel of land that he had bought in Nyahururu. Now if the suit premises belonged to his father as he wants this court to believe and was entitled to inherit a portion thereof as a beneficiary of his late father’s estate why would he voluntarily move out of the same on being told by the plaintiff without as much as resisting and or questioning his step brother’s decision to get him off the suit premises. His evidence was that by the time he was moving out of the suit premises, the plaintiff had been pestering him over the ownership of the same. To my mind this would have been the more reason that he would have elected to stay put on the suit premises. Answering questions put to him by court, the defendant did concede that he left the suit premises after the plaintiff had told him to do so and that since the year 2000, knew that the suit premises belonged to the plaintiff. It is also noteworthy that their deceased father passed on in the year 2000. However the certificate of title tendered in evidence shows that the plaintiff became the registered proprietor of the suit premises on 14th May 1997. Surely if the suit premises belonged to their deceased father the same would not have been registered in the name of the plaintiff without their deceased father’s knowledge and without him as much as raising a finger. The defendant made a lot of capital out of the fact that the particulars of the suit premises referred to in the plaint were not the same as those in the certificate of title tendered in evidence. Whereas in the plaint the suit premises are indicated asLR No. 12816/1, the certificate of title tendered in evidence has the suit premises as LR 12618/1. To my mind this splitting hairs unnecessarily. It is clearly a typographical error. The defendant did not suggest that the plaintiff has another parcel registered as LR No. 12816/1 apart from the one he tendered the certificate of title for. In any event between what is typed in the plaint and the certificate of title, I choose to go by the certificate of title.

A certificate of title issued under the Registration of titles Act has the effect of being conclusive evidence of proprietorship. It is so provided in section 23(1) of the Registration of titles Act. It provides thus:-

“The certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party.”

The defendant much as he pleaded fraud he did not lead any aota of evidence to prove that allegation in any event, he did not even counter claim against the plaintiff.

For all the foregoing reasons, I would answer the first issue framed in the affirmative.

As for the 2nd issue, there is evidence that as at the time the suit was filed, the defendant was in occupation of the suit premises through his son. As for himself he had vacated the suit premises and relocated to his own parcel of land in Nyahururu. His son aforesaid confirmed having resided on the suit premises until 12th January 2009 when he was evicted. Much as the defendant claimed to have vacated the suit premises, when cross-examined by Mr. Wahome he made this rather startling remark “....... I will not vacate the suit premises....” This appears to suggest that though physically he no longer occupies the suit premises, in law he still does. Of course, the defendant has seized on the fact that he has vacated the suit premises to claim that he cannot be evicted. That orders of eviction cannot issue against him as prayed in the plaint as he is no longer in occupation of the suit premises. To my mind what is important is the status quo that obtained as at the time the plaintiff filed the suit. At the time the defendant was in occupation through his son as aforesaid. If there have been changes as the case was pending in court, those changes cannot affect the prayers in the suit. In any event, when he vacated as claimed, he left behind his son (DW2). The prayer for eviction included eviction of the defendants as well as members of their families. Accordingly I would hold that the defendant and members of his family were in occupation of the suit premises as trespassers and thus liable to eviction.

The defendant claims that he cannot be evicted because the suit premises are family land. That it forms part of his deceased father’s estate that he is entitled to inherit a portion thereof. This is all well. However, the defendant did not file a counterclaim to this suit resisting the eviction asked for by the plaintiff on that basis. The defendant also conceded in evidence that though their father passed away in 2000, to date no letters of administration have been taken out with regard to his estate. The only known remedy against a trespasser is eviction and an award of damages. Nothing has been brought to my attention that would prevent me from ordering the eviction of the defendant and his family from land parcel No. 12618/1 Naromoru. I so order, the fact that the defendant and members of his family are no longer in occupation notwithstanding. They moved out voluntarily. However there is nothing to stop them from re-entering the suit premises after the conclusion of this case on the pretext that they were never evicted in the first place. For what it is worth, an order for eviction shall forthwith issue against the defendants and members of his family with regard to the suit premises.

How about damages. In the case of M’Mukanya v/s M’Mbijiwe (1984) KLR 761 the court of appeal observed that trespass as a tort “.... Is a violation of the right f possession and M’Mbijiwe must prove he, and M’Mukanya and Nyamu, had the right to immediate and exclusive possession of it which is different from ownership ...... he does not have to prove damage. Mukanya and Nyamu are liable for trespass if M’Mbijiwe has the right to possess and they intentionally entered his plot even though they honestly believed the land was their own and they had a right of entry on it they did so under an inevitable mistake of law and fact .....” the same principles would apply in the circumstances of this case. Mr. Oraro had submitted on this issue that such damages are in the nature of special damages which ought to be specifically pleaded and proved. In evidence the plaintiff had stated that he had a house on the suit premises which had been illegally occupied by the defendant. Had he let it out it would have fetched him Kshs.5,000/= per month. That house had been occupied for well over 10 yeas. He therefore urged this court to award him damages in those terms. However it did transpire that in fact, the plaintiff had levied distress for rent against DW2 for Kshs.72,000/= and as a result of which his household items were destrained and carted away by the auctioneer. The plaintiff however did not enlighten the court as to what was the final result of the distress for rent levied as aforesaid. In the absence of any other evidence, I would hold that the rent due from the house was what was distressed for. Accordingly, it must be taken that the plaintiff must have recovered fully what was due to him on that account. After all DW2 no longer stays in the house since 12th January 2009.

The Plaintiff too claimed Kshs.1,300,000/= per annum from 1998 to the date of filing suit on the grounds that he could have cultivated the suit premises but for the defendant’s trespass. He would have grown wheat that would have fetched him Kshs.1,300,000/= per year. Accordingly for 10 years, he should be awarded Kshs,13,000,000/=. The evidence on the issue is a bit hazy. It would appear that the defendant was only occupying a house on the suit premises and utilising an acre thereof or thereabouts. The rest of the suit premises were available for the use by the plaintiff. It would also appear that indeed all along the plaintiff was utilising the suit premises by growing hay which he sold. That being the case, I do not think that the plaintiff has incurred any substantial loss. In any event the plaintiff is under obligation to take such steps as will mitigate his loss due to the alleged occupation of the suit premises. I decline to make such an award.

As already stated, in a claim for damages anchored on trespass a party making such claim need not prove any damage. See Ashby v/s White (1703) 2 Raynd 938. It is sufficient to prove the mere act of trespass and damages will automatically flow. In the case of Macharia v/s Mwangi Kigondu & Ano. NBIHCCC NO. 4067 of 1986 (UR) Bosire Jas he then was provided some guidelines though. He stated. ....“their action was wanton. The Plaintiff has long been deprived of the use of the land in dispute. He is entitled to damages. The measure of damages is such sum as the court will consider reasonable, considering the size of the land involved and the length of time the Plaintiff has been deprived of the same. There are (other) factors but the Plaintiff never called evidence in regard to them. Those would include, the purpose the Plaintiff intended to use the land for. Doing the best I can in the circumstances, and considering that the land involved is very small, I assess damages at Kshs.50,000/-….”

It would appear that the plaintiff had anticipated the difficulties that this court would run into in awarding damages that he had sought in his evidence. No wonder, in his submissions, Mr. Wahome departed from those claims and settled for a global figure of Kshs.500,000/=. Doing the best that I can in the circumstances and considering that the plaintiff was only denied the use of an acre of the suit premises all along, I think that an award of Kshs.150,000/= as damages for trespass would suffice.

In the upshot it is the judgment of this court that the defendant and his family shall be evicted from land parcel number 12618/1 Naromoru forthwith. The defendant shall pay the plaintiff damages for trespass in the sum of Kshs.150,000/= plus costs of the suit and interest.

Dated and delivered at Nyeri this 18th day of June 2009

M. S. A. MAKHANDIA

JUDGE