[2016] KEELC 837 (KLR)
The court found that the plaintiff's evidence regarding ownership of the suit property and the period of occupation by the defendants was uncontested. The defendants did not file a defence or challenge the plaintiff's claim that they collected Kshs. 6,000 per month in rent from June 2009 to September 2015, totaling...
Source-derived case information.
- Citation
- [2016] KEELC 837 (KLR)
- Parties
- Plaintiff: Johnstone K. Cheruiyot; Defendant: Peter Koske; Defendant: Hezra Cheruiyot; Defendant: Edwin Kemboi; Defendant: Edwin Kipkirui Bii; Defendant: Jeremiah Korir Langat; Defendant: Joseph Kipkirui Korir
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 30 of 2011
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- MA Silau
- Legal Topics
- Mesne Profits, Possession of Land, Permanent Injunction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnstone K. Cheruiyot
Plaintiff
Peter Koske
Defendant
Hezra Cheruiyot
Defendant
Edwin Kemboi
Defendant
Edwin Kipkirui Bii
Defendant
Jeremiah Korir Langat
Defendant
Joseph Kipkirui Korir
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to mesne profits for the period the defendants occupied the suit premises.
- 2 Whether the plaintiff is entitled to a permanent injunction restraining the defendants from interfering with the suit property.
Ratio Decidendi
The court found that the plaintiff's evidence regarding ownership of the suit property and the period of occupation by the defendants was uncontested. The defendants did not file a defence or challenge the plaintiff's claim that they collected Kshs. 6,000 per month in rent from June 2009 to September 2015, totaling 76 months. The court held that the plaintiff was entitled to mesne profits for this period, amounting to Kshs. 456,000, and that a permanent injunction was warranted to prevent the defendants from interfering with the plaintiff's quiet possession of the property. Costs were awarded to the plaintiff on the lower scale due to the absence of a defence.
Court Disposition
Judgment for the plaintiff.
Orders
- A permanent injunction is issued restraining the defendants from entering or interfering with the plaintiff's possession of Plot No. 90, Chesinende Township.
- The plaintiff is awarded Kshs. 456,000 as mesne profits jointly and severally against the defendants, with interest from the date of filing suit until payment in full.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT KERICHO
CIVIL SUIT NO. 30 OF 2011
JOHNSTONE K. CHERUIYOT……………………………………….……… PLAINTIFF
VERSUS
PETER KOSKE.…………………………………………………..…….. 1ST DEFENDANT
HEZRA CHERUIYOT………………………………………….…………2ND DEFENDANT
EDWIN KEMBOI……………………………………..…………..………3RD DEFENDANT
EDWIN KIPKIRUI BII…….…………………………………....…..……….4TH DEFENANT
JEREMIAH KORIR LANGAT…………………….….…....……………..5TH DEFENDANT
JOSEPH KIPKIRUI KORIR………………………………...…………….6TH DEFENDANT
JUDGMENT
(Suit for possession of premises and mesne profits; no defence filed by defendants; defendants vacating the premises before hearing of the suit; plaintiff awarded mesne profits and order of permanent injunction)
The plaintiff commenced this suit by way of plaint filed on 24 May 2011. He pleaded that he is the proprietor of a commercial plot described as Plot No. 90 situated within Chesinende Township. His case is that about the month of June 2009, the defendants moved into the plot and erected temporary structures. In the suit, the plaintiff sought a declaration that he is entitled to exclusive possession of the land, an eviction order, mesne profits, and costs of the suit.
No defence was filed by the defendants and on 30 September 2016, it was confirmed that the defendants had moved out of the premises. On the day, the plaintiff stated that he would wish only to pursue his claim for mesne profits. At the hearing of the suit, the plaintiff did give evidence that the defendants moved into his property in June 2009 and erected some six shops made of timber. The rent collected from these shops was a total of Kshs. 6,000/= per month. He testified that the defendants moved out of the premises on 15 September 2015. Mr. Ngetich for the defendants did not cross-examine the plaintiff on this evidence.
As stated earlier, the plaintiff's claim is now restricted to mesne profits only, the defendants having moved out of the suit land. The plaintiff's evidence that the defendants used to collect a sum of Kshs. 6,000/= per month is not contested. The defendants have also not disputed that they remained in the plaintiff's premises from June 2009 to September 2015. This is a period of 76 months. The mesne profits lost by the plaintiff is the sum of Kshs. 6,000/= for the period of 76 months which is Kshs. 456,000/=. I award the plaintiff the sum of Kshs. 456,000/= as mesne profits. The plaintiff is also entitled to a permanent injunction as against the defendants and I give him this order. I also award the plaintiff's costs of the suit in the lower scale since no defence was filed.
In summary I enter judgment for the plaintiff and make the following orders :-
A permanent injunction is hereby issued stopping the defendants from entering or in any other way interfering with the plaintiff's quiet possession of the Plot No. 90 situated in Chesinende Township.
The plaintiff is hereby awarded the sum of Kshs. 456,000/= as mesne profits jointly and/or severally against the defendants. The said sum to accrue interest from the time of filing suit to the date of payment.
The plaintiff is awarded the costs of the suit in the lower scale jointly and/or severally as against the defendants.
Judgment accordingly.
Dated,Signed and delivered on this 29th day of April, 2016
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
PRESENT:
Mr. Migiro for the plaintiff
No appearance on part of Mr. Weldon Ng’etich for the defendants
Court Assistant: Mr. Kenei