[2000] KEHC 365 (KLR)
The court found that the plaintiff is the registered owner of the suit property, LR No.209/12824, and that the defendants have been in occupation without the plaintiff's consent for three years. The plaintiff and defendants entered into a Memorandum of Understanding in which the plaintiff paid Kshs.180,000 to...
Source-derived case information.
- Citation
- [2000] KEHC 365 (KLR)
- Parties
- Plaintiff: Malvi Investments Ltd; Defendant: Newton Irungu & 8 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1477 of ??
- Procedural Posture
- Civil Case / Judgment After Formal Proof, Default of Appearance and Defence
- Outcome
- Judgment for the plaintiff against the defendants jointly and severally as prayed in the plaint, except for general damages.
- Legal Topics
- Eviction, Trespass, Permanent Injunction, Default Judgment, Memorandum of Understanding
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Malvi Investments Ltd
Plaintiff
Newton Irungu & 8 Others
Defendant
Procedural Posture
Civil Case / Judgment After Formal Proof, Default of Appearance and Defence
Legal Issues
- 1 Whether the plaintiff is the lawful owner of LR No.209/12824 and entitled to possession.
- 2 Whether the defendants are trespassers on the suit property.
- 3 Whether the plaintiff is entitled to an order of eviction and permanent injunction against the defendants.
Ratio Decidendi
The court found that the plaintiff is the registered owner of the suit property, LR No.209/12824, and that the defendants have been in occupation without the plaintiff's consent for three years. The plaintiff and defendants entered into a Memorandum of Understanding in which the plaintiff paid Kshs.180,000 to facilitate the defendants' vacation of the premises, but the defendants breached this agreement by failing to vacate. The court held that the plaintiff had proved its case on a balance of probabilities, entitling it to judgment for eviction and a permanent injunction as prayed. No general damages were awarded due to lack of evidence in support of that head of claim.
Court Disposition
Judgment for the plaintiff against the defendants jointly and severally as prayed in the plaint, except for general damages.
Orders
- Eviction order against the defendants from LR No.209/12824.
- Permanent injunction restraining the defendants, their servants and agents from trespassing upon or interfering with LR No.209/12824.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1477 OF 2000
MALVI INVESTMENTS LTD …………………………. PLAINTIFF
VERSUS
NEWTON IRUNGU & 8 OTHERS ……………………DEFENDANTS
J U D G E M E N T
The plaintiff Malvi Investments Ltd sued the 9 defendants jointly and severally seeking an order for eviction from the suit premises being LR No.209/12824. The plaintiff also sought
“a permanent injunction restraining the defendants, their servants and agents from trespassing upon the suit property (L.R. No.209/12824) or interfering with it whatsoever”.
The plaintiff prayed the court to direct the OCS Pangani Police Station to supervise the eviction and finally was a prayer for general damages and costs of the suit.
The court record shows that summons to enter appearance was served on all the defendants but none of them entered appearance or filed a defence. The plaintiff did, by a request for Judgement dated 4th October, 2000, requested for judgement against all the defendants in default of appearance and defence, and the same was duly entered by the Principal Deputy Registrar on 13th October, 2000.
The plaintiff secured a date for formal proof. I nevertheless directed that a fresh date for formal proof be secured from the Registry, which was done and served on the defendants. On the second date of the hearing one of the defendants turned up, but as there was already an interlocutory judgement against him, he did not take part in the proceedings. The plaintiff testified that he knows the 9 defendants who are occupying his piece of land illegally. He produced a certificate of title to his land which belongs to his company Malvi Investments Ltd.
He said that the defendants have been on his lad for 3 years without his permission. That he commissioned auctioneers to remove them but because he did not have a court order, he was arrested and taken to court for Malicious Damage to property. This was damage done to the defendants’ kiosks.
The police made the plaintiff and the defendants enter into a Memorandum of Understanding whereby the plaintiff was to pay the defendants some compensation to enable the suit against the auctioneers to be withdrawn. On their part the defendants were supposed to move away from the suit premises. The plaintiff produced the Memo of Understanding and also said that he paid Kshs.180,000/= to enable the defendant to move out, but 8 have still refused to move out, except for one called Nicholas Gakuu.The letter Nicholas wrote was produced as Ex.2 in court. The plaintiff produced a copy of the proposed plan of the development he wishes to undertake on this plot. He prayed for an order for eviction and damage.
From the evidence adduced on record I am satisfied that the suit premises belongs to the plaintiff company. I am also satisfied that both the plaintiff and the defendant entered into a compromise in the form of a Memorandum of Understanding and it was the defendants who breached the same. For this reason I am satisfied that the plaintiff has proved his case on a balance of probabilities and
I find judgement for the plaintiff against the defendants jointly and severally as prayed in the plaint. I proceed to grant prayers in terms of paragraph 9(a), (b), (c), (e) and (f). I have not awarded any general damages because though prayed in the plaint, no evidence was adduced to mitigate this head.
These are the orders of the court.
Dated at Nairobi this 13th day of December, 2000.
JOYCE ALUOCH
PUISNE JUDGE