[2007] KEHC 3603 (KLR)
The court found that the plaintiffs had proved their case on a balance of probabilities, establishing that they were the registered proprietors of the suit land and that the defendants were in occupation without consent. The court held that the plaintiffs were entitled to an injunction restraining the defendants...
Source-derived case information.
- Citation
- [2007] KEHC 3603 (KLR)
- Parties
- Plaintiff: Joseph Kimani Nyagia; Plaintiff: James Kariuki Kimani; Defendant: Kamau Chege; Defendant: Patrick Nganga Chege
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1150 of 2000
- Procedural Posture
- Civil Case / Judgment After Formal Proof Following Interlocutory Judgment
- Outcome
- Suit allowed with costs to the plaintiffs. Injunction, eviction, and removal of structures granted. No award for damages or mesne profits.
- Legal Topics
- Trespass to Land, Injunctions, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kimani Nyagia
Plaintiff
James Kariuki Kimani
Plaintiff
Kamau Chege
Defendant
Patrick Nganga Chege
Defendant
Procedural Posture
Civil Case / Judgment After Formal Proof Following Interlocutory Judgment
Legal Issues
- 1 Whether the plaintiffs are the registered proprietors of LR Kiganjo/Handege/2949 and entitled to exclusive possession.
- 2 Whether the defendants are trespassers on the suit land.
- 3 Whether the plaintiffs are entitled to orders of injunction, eviction, and removal of structures.
Ratio Decidendi
The court found that the plaintiffs had proved their case on a balance of probabilities, establishing that they were the registered proprietors of the suit land and that the defendants were in occupation without consent. The court held that the plaintiffs were entitled to an injunction restraining the defendants from further occupation, orders for the defendants to vacate the premises, and removal of any structures erected by the defendants. The court declined to award damages and mesne profits, holding that both cannot be granted simultaneously with the grant of injunctive and eviction relief. The suit was allowed with costs to the plaintiffs.
Court Disposition
Suit allowed with costs to the plaintiffs. Injunction, eviction, and removal of structures granted. No award for damages or mesne profits.
Orders
- An injunction is issued restraining the defendants from occupying, wasting, or trespassing on LR Kiganjo/Handege/2949.
- The defendants are ordered to vacate the premises and remove any structures forthwith.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1150 of 2000
1. Land and Environmental Law Division
2. Subject of main suit land
LR Kiganjo/Handege/2949
a. Plaintiff registered proprietor situated in Gatundu Division Thika
b. Defendant occupy land without consent
3. Defendant 1 and 2 – Interlocutory Judgments entered on 31 August 2000
4. Formal proof
a) Plaintiffs claim to be proprietor of land and dully registered
b) Hearing conducted by Mbito J.
c) Proceeding continue under order 17 r 10 Civil Procedure Rules.
5. Case law - Nil
6. Advocate:-
M. David for Kamere & Co. Advocates for the plaintiff- present
Kahiu Mbugua & Associates advocates for the defendant - absent
JOSEPH KIMANI NYAGIA ……………………………… 1ST PLAINTIFF
JAMES KARIUKI KIMANI ……………….………….….. 2ND PLAINTIFF
VERSUS
KAMAU CHEGE …………………………………….. ...1ST DEFENDANT
PATRICK NGANGA CHEGE …………………...…… 2ND DEFENDANT
JUDGMENT
1: Background
1. The plaintiff, Joseph Kimani Nyagia and James Kariuki Kimani sue Kamau Chege and Patrick Nganga Chege in trespass.
2. The plaintiffs claimed that they purchased the suit property. The defendants herein refused to vacate the land. They continue to reside on the land without the consent of the plaintiff.
3. The said plaintiff herein prayed that orders of injunction do issue against the defendants restraining them from occupying, wasting the land and trespassing thereon. They prayed that the plaintiffs be evicted and or vacated. Damaging for trespass and mense profits.
4. The defendant on being served failed to attend court. Interlocutory Judgment was entered against them.
II: Should orders be granted.
5. After formal proof of this matter and fair proceeding by Mbito J I am satisfied that the orders sought be granted for an injunction, orders to vacate the premises and to remove the said structures forth with.
6. That there will be no award as to damages and mense profits as both prayers cannot be sought for when the other is issued.
7. The said suit be and is hereby allowed with costs to the plaintiff on the said above terms.
Dated this 31st day of July 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
M. David for Kamere & Co. Advocates for the plaintiff- present
Kahiu Mbugua & associates advocates for the defendant - absent