[2011] KEHC 815 (KLR)
The court found that the plaintiff had fully complied with the terms of the sale agreement, paid the purchase price, and was issued with the title to the suit property. The defendant, despite being served, failed to enter appearance or contest the suit. The evidence established that the plaintiff was entitled to...
Source-derived case information.
- Citation
- [2011] KEHC 815 (KLR)
- Parties
- Plaintiff: Lydiawanjue Mwangi; Defendant: Richard Nduati Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 146 of 2010
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- CM Njagi
- Legal Topics
- Vacant Possession, Eviction, Permanent Injunction, Sale of Land, Title Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydiawanjue Mwangi
Plaintiff
Richard Nduati Kariuki
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to vacant possession of LR No. 4953/2105, Thika.
- 2 Whether the defendant should be evicted from the suit premises.
- 3 Whether a permanent injunction should issue restraining the defendant from interfering with the plaintiff's ownership and possession of the property.
Ratio Decidendi
The court found that the plaintiff had fully complied with the terms of the sale agreement, paid the purchase price, and was issued with the title to the suit property. The defendant, despite being served, failed to enter appearance or contest the suit. The evidence established that the plaintiff was entitled to vacant possession as per the agreement, and the defendant's continued occupation was unlawful. The court held that the plaintiff was entitled to delivery of vacant possession, an eviction order in default, a permanent injunction restraining the defendant from interfering with her ownership and possession, and costs of the suit.
Court Disposition
Judgment for the plaintiff.
Orders
- Delivery and vacant possession of LR No. 4953/2105, Thika, within 21 days from the date of judgment.
- In default of delivery of vacant possession within 21 days, an eviction order to issue.
Full Case Text
Judgment text and source record
27 paragraphs
.REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL & TAX DIVISION – MILIMANI
CIVIL NO. 146 OF 2010
LYDIAWANJUE MWANGI…………......................…………………… PLAINTIFF
VERSUS
RICHARD NDUATI KARIUKI……….......................…….……….........DEFENDANT
JUDGMENT
By a plaint dated 10th March, 2010, and filed in court on 12th March, 2010, the plaintiff prays for judgment against the defendant for –
(1)Delivery up and vacant possession of the suit premises namely I.R.No. 74549/1 and/or LR No. 4953/2105, Thika.
(2)An order of eviction of the defendant from the aforesaid premises.
(3)A permanent injunction restraining the defendant, his servants and agents, whosoever and howsoever, from trespassing on the plaintiff’s aforesaid premises or in any other way interfering with the plaintiff’s ownership and possession of the said premises.
(4)Costs of this suit and interest thereon at court rates.
(5)Any further or other relief as this court may deem just and fit to grant.
Although the defendant was duly served with summons to enter appearance on 24th April, 2010, which summons were annexed to the plaint herein, he did not enter such appearance either within 15 days as required or at all. The matter was accordingly listed for formal proof.
The plaintiff’s case is that she bought the suit property from the defendant in 2008 for a consideration of Kshs 2, 500,000/-. However, the defendant failed to grant the plaintiff vacant possession of the said property. In her sworn evidence in court, she produced a copy of the sale agreement dated 23rd April, 2004. It was entered into between herself and the defendant in respect of LR No. 4953/2105, Thika. The purchase price was Kshs 2,500,000/-, receipt of which the vendor duly acknowledged. This price covered not only the plot itself, but also all the building(s) and improvements thereon.
After paying all the dues, the property was transferred to the plaintiff and she was given the title. She produced the original thereof as an exhibit. She therefore prayed for an eviction order and an injunction to restrain the defendant from interfering with the suit property. She also prayed for costs.
After considering this evidence and Mr Kimeria’s submissions on behalf of the plaintiff, I find that there was an agreement between the plaintiff, the defendant and the Kenya National Housing Corporation whereby the defendant’s entire interest in the suit property was duly assigned to the plaintiff. According to the agreement between the parties, the plaintiff was due to take vacant possession of the property on 1st May, 2008. However, that did not materialize as the defendant was and still is in possession of the suit property.
Since the plaintiff has established that she fulfilled all the conditions in the agreement for the acquisition of the suit property and holds the certificate of title thereto, I find that she is entitled to judgment against the defendant as prayed. I accordingly enter judgment for the plaintiff against the defendant for –
(a)Delivery and vacant possession of the suit premises known as LR No. 4953/2105, Thika, within 21 days from the date hereof.
(b)In default of delivery of vacant possession of the suit premises within the said period, an eviction order to issue.
(c)A permanent injunction be and is hereby issued restraining the defendant, his servants and/or agents whosoever and howsoever, from trespassing on to the plaintiff’s premises known as LR No. 4953/2105, Thika, or in any other way interfering with the plaintiff’s ownership and possession of the said premises.
(d)Costs of this suit and interest thereon at court rates.
DATED and DELIVERED at NAIROBI this 28th day of July, 2011.
L. NJAGI
JUDGE