[2017] KEELC 2230 (KLR)
The court found that the plaintiff had proved ownership of the suit property by producing a valid title deed and evidence of purchase. The defendants, having been properly served but failing to appear or defend the suit, were deemed to have no lawful claim to the property. The court held that the plaintiff was...
Source-derived case information.
- Citation
- [2017] KEELC 2230 (KLR)
- Parties
- Plaintiff: Key West Investments Limited; Defendant: Mama Shabani; Defendant: Jones Mwabili; Defendant: Mr. Dogo; Defendant: Thomas Mwambiri; Defendant: Mwanahawa Hassan; Defendant: Jospehat Kariuki Gangara; Defendant: Juma Mwinyi Pombe; Defendant: Peter Mwasi Juma
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 320 of 2015
- Procedural Posture
- Land Case / Judgment
- Outcome
- Judgment for the plaintiff; declarations of ownership and trespass; injunctive and mandatory orders granted; damages for trespass declined; costs awarded to plaintiff.
- Judges
- LC Komingoi
- Legal Topics
- Ownership Disputes, Trespass, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Key West Investments Limited
Plaintiff
Mama Shabani
Defendant
Jones Mwabili
Defendant
Mr. Dogo
Defendant
Thomas Mwambiri
Defendant
Mwanahawa Hassan
Defendant
Jospehat Kariuki Gangara
Defendant
Juma Mwinyi Pombe
Defendant
Peter Mwasi Juma
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful owner of plot number MN/V/1810 and entitled to exclusive possession and occupation.
- 2 Whether the defendants are trespassers on the suit property.
- 3 Whether the plaintiff is entitled to injunctive and mandatory reliefs against the defendants.
Ratio Decidendi
The court found that the plaintiff had proved ownership of the suit property by producing a valid title deed and evidence of purchase. The defendants, having been properly served but failing to appear or defend the suit, were deemed to have no lawful claim to the property. The court held that the plaintiff was entitled to declarations of ownership, injunctive reliefs restraining the defendants from interfering with the property, and a mandatory order for demolition and removal of structures. However, the court declined to award general damages for trespass as the plaintiff had not provided evidence or quantification of loss. The court emphasized that it would not make orders in vain where...
Court Disposition
Judgment for the plaintiff; declarations of ownership and trespass; injunctive and mandatory orders granted; damages for trespass declined; costs awarded to plaintiff.
Orders
- Declaration that the plaintiff is the lawful owner of plot number MN/V/1810 and entitled to exclusive possession and occupation.
- Declaration that the defendants are trespassers on the suit property.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
LAND CASE NO 320 OF 2015
KEY WEST INVESTMENTS LIMITED……...….PLAINTIFF/APPLICANT
VERSUS
1. MAMA SHABANI
2. JONES MWABILI
3. MR. DOGO
4. THOMAS MWAMBIRI
5. MWANAHAWA HASSAN
6. JOSPEHAT KARIUKI GANGARA
7. JUMA MWINYI POMBE
8. PETER MWASI JUMA……………….….…RESPONDENTS/DEFENDANTS
JUDGMENT
1. This plaintiff has filed this suit against the defendants for
a)A declaration that the plaintiff is the rightful and/or lawful owner of all that parcel of land known as plot Number MN/V/1810 ("THE SUIT PROPERTY”) and they are entitled to exclusive and unimpeded right of possession and occupation of the suit property.
b)A declaration that the defendants whether by themselves, their servants, agents or otherwise, howsoever are wrongfully in occupation of the suit property and are accordingly trespassers on the same.
c)A permanent injunction restraining the defendants whether by themselves, their servants , agents, employees or through anyone deriving title through them or otherwise howsoever from selling, transferring, charging, leasing, depositing building materials creating further structures and/or in any other manner whatsoever dealing or interfering with the suit property.
d)A mandatory injunction compelling the defendants to demolish and remove the structures erected on the suit property failing to which the plaintiff be authorized to demolish structures at the defendants’ expense.
e)Vacant possession.
f)General damages for trespass.
g)Cost of this suit and interest at such rate and for such period of time as this Honourable Court may deem it to grant.
h)Any such other or further relief as this Honourable Court may deem appropriate.
2. The plaintiff was not able to effect personal service on the defendants because they were hostile. The plaintiff then filed an application dated 7th November 2016 seeking leave to serve the defendants by way of substitute service. On 8th November 2016 the court granted leave. The defendants where then served through an advertisement in the Daily Nation of 21st January 2017.
3. Despite this service the defendants neglected to enter appearance and/or filed defence within the prescribed period. The suit was then set down for hearing.
4. Francis Munyao Mulinge one of the directors of the plaintiff told the court that they own PLOT NO/MN/V/1810situated at Miritini. He told the court that they bought it from one Alexander Mwendwa Mwova for Kshs.15 million. That the transfer was duly effected in their favour. He produced copy of the title deed as exhibit –P1. He further told the court one year later, the defendants invaded the said plot and started constructing temporary houses. A bundle of photographs of the scene were produced as exhibit –P2. The defendants have been asked to leave but they have threatened the plaintiff’s directors with dire consequences. He produced a demand notice as exhibit-P3. He prays that the defendants be compelled to leave the plot.
5. The plaintiff’s case has not been controverted. The title deed confirms the plaintiff is the owner of the suit property.
6. I find that the plaintiff has made out a good case against the defendants on a balance of probabilities. However, the plaintiff has made a claim for damages for trespass and the resultant loss there from. They made a no attempt to address the court on this. They made no attempt to tabulate the loss which may have resulted from these trespass. It is my view that it may prove difficult if not impossible to recover any damages the court may award.
7. As a court I would be reluctant to make orders in vain. I decline to award damages.
Accordingly judgment is entered in the plaintiff as against the defendants as follows:
a)A declaration is hereby issued that the plaintiff is the rightful and/or lawful owner of all that piece of land known as plot number MN/V/1810and that they are entitled to exclusiveand unimpeded right of possession and occupation of the suit property.
b)A declaration is hereby issued that the defendants whether by themselves, their servants, agents or otherwise, howsoever are wrongfully in occupation of the suit property and are accordingly trespassers on the same.
c)A permanent injunction do hereby issue restraining the defendants whether by themselves, their servants, agents, employees or through anyone deriving title through them or otherwise howsoever for selling, transferring, charging, leasing, depositing building materials, creating further structures and/or in any other manner whatsoever dealing or interfering with the suit property.
d)A mandatory injunction is hereby issued compelling the defendants to demolish and remove the structures erected on the suit property failing to which the plaintiff is hereby authorized to demolish and remove the said structures at the defendants expense.
e)Vacant possession.
f)Costs of the suit and interest.
Dated and signed on the 29th day of June 2017 at Mombasa.
L. KOMINGOI
JUDGE
29/6/17
Judgment dated and delivered in open court on the 29th day of June 2017 in the presence Ms. Kimuli for Ms, Ngigi for the plaintiff and the court assistant Koitamet.
L. KOMINGOI
JUDGE
29/6/17