[2011] KEHC 2431 (KLR)
The court found that the plaintiff was the registered proprietor of the suit premises since 7th January 2000 and was therefore entitled to vacant and exclusive possession. The defendant's failure to deliver vacant possession and its licensing of third parties to occupy the premises constituted a violation of the...
Source-derived case information.
- Citation
- [2011] KEHC 2431 (KLR)
- Parties
- Plaintiff: Kimemia Engineering Construction Co. Ltd; Defendant: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 114 of 2009
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Vacant Possession, Registered Proprietor Rights, Damages for Loss of User
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimemia Engineering Construction Co. Ltd
Plaintiff
City Council of Nairobi
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the registered proprietor of the suit premises and entitled to vacant possession.
- 2 Whether the plaintiff is entitled to damages for loss of user due to the defendant's failure to give vacant possession.
Ratio Decidendi
The court found that the plaintiff was the registered proprietor of the suit premises since 7th January 2000 and was therefore entitled to vacant and exclusive possession. The defendant's failure to deliver vacant possession and its licensing of third parties to occupy the premises constituted a violation of the plaintiff's proprietary rights. Although the plaintiff did not provide specific evidence of the quantum of loss suffered, the court awarded general damages for non-user, recognizing the deprivation of use. Costs were awarded to the plaintiff as the successful party.
Court Disposition
Judgment for the plaintiff.
Orders
- The plaintiff is granted vacant possession of the suit premises.
- The defendant shall pay the plaintiff KShs. 100,000 as general damages for non-user.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELC NO. 114 OF 2009
KIMEMIA ENGINEERINGCONSTRUCTION CO. LTD..................................................................PLAINTIFF
V E R S U S
CITY COUNCIL OF NAIROBI........................................................................................................DEFENDANT
J U D G M E N T
The Defendant filed a defence to the claim but did not attend hearing on 27th January 2011 after the date was taken by consent. The Plaintiff’s evidence was therefore not controverted. The evidence was tendered through its director, PW1 Eddy Peter Ndungu Kimemia. Their case was that following application, they were allocated a plot L.R. No. 209/4844/59/R (Exhibit 1) by the Defendant on 18th January 1994 for which they paid (Exhibit 2). Survey was carried out and a Deed Plan (Exhibit 4) prepared. A Lease Agreement was prepared by the Defendant whose Town Clerk and Mayor signed on one part and PW1 on the other. It was registered at the Lands Office and the Plaintiff eventually got the Lease (Exhibit 6). They began paying rates (Exhibits 7 and 8). The Plaintiff’s problem is that the Defendant has failed to give them vacant possession but has instead been licencing Kiosk owners who operate on the suit premises. The suit was for vacant possession, damages for loss of user and costs.
I accept the evidence given on behalf of the Plaintiff and find that it has been shown the Plaintiff is the registered proprietor of the suit premises since 7th January 2000. Since then, it was entitled to be put into vacant and exclusive possession to be able to enjoy and use the property. The claim for vacant possession succeeds.
The allotment letter stated that the suit premises would be used for commercial purposes only. PW1 did not testify as to how much he has lost by the non – use of the premises. He did, for instance, call evidence of any drawings or approved plans of any structures they intended to put up on the premises, or indicate the value of any such intended development. I will award KShs. 100,000/= being general damages for non – user. Costs shall follow the event.
DATED, DELIVERED AND PRONOUNCED AT NAIROBITHIS 21ST DAY OF MARCH 2011
A.O. MUCHELULE
J U D G E