[2020] KEELC 594 (KLR)
The court found that the plaintiff had demonstrated, through uncontroverted documentary evidence, that she was allocated the suit premises by the 3rd defendant, paid the full purchase price, and has been in possession. The 1st and 2nd defendants failed to participate in the proceedings or provide any evidence of...
Source-derived case information.
- Citation
- [2020] KEELC 594 (KLR)
- Parties
- Plaintiff: Mary Wanjiku Kimani; Defendant: Mary Wanjiru; Defendant: Martin Paul; Defendant: Nairobi City County Government
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 559 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- LC Komingoi
- Legal Topics
- Ownership Disputes, Eviction, Allocation of Public Housing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Wanjiku Kimani
Plaintiff
Mary Wanjiru
Defendant
Martin Paul
Defendant
Nairobi City County Government
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the sole legal owner of the leasehold interest in House Number 84-3D Umoja II Estate Nairobi.
- 2 Whether the 1st and 2nd defendants are in illegal occupation of the suit premises and liable to eviction.
- 3 Whether the plaintiff is entitled to costs and other reliefs sought.
Ratio Decidendi
The court found that the plaintiff had demonstrated, through uncontroverted documentary evidence, that she was allocated the suit premises by the 3rd defendant, paid the full purchase price, and has been in possession. The 1st and 2nd defendants failed to participate in the proceedings or provide any evidence of lawful occupation. The 3rd defendant's denial of knowledge did not rebut the plaintiff's evidence. On a balance of probabilities, the plaintiff proved her ownership and entitlement to the reliefs sought. The court therefore declared her the sole legal owner and ordered eviction of the 1st and 2nd defendants.
Court Disposition
judgment for the plaintiff
Orders
- A declaration is issued that the plaintiff is the sole legal owner of the leasehold interest in House Number 84-3D situated at Umoja II Estate Nairobi from Nairobi City County Government.
- An order of eviction is issued against the 1st and 2nd defendants jointly and severally.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC NO. 559 OF 2017
MARY WANJIKU KIMANI..............................................................PLAINTIFF
VERSUS
MARY WANJIRU......................................................................1STDEFENDANT
MARTIN PAUL.......................................................................2ND DEFENDANT
NAIROBI CITY COUNTY GOVERNMENT.........................3RD DEFENANT
JUDGEMENT
1. By a plaint dated 24th August 2017 and amended on 12th September 2017, the plaintiff seeks judgment against the defendants jointly and severally for;-
(a) A declaration that the plaintiff is the sole legal owner of the leasehold interest in house number 84 -3D situated at Umoja II estate Nairobi from Nairobi City County Government.
(b) An eviction against the 1st and 2nd defendants jointly and severally.
(c) Costs of the suit.
(d) Any other or further orders that the court deems just in the circumstances.
2. Upon being served with copies of plaint and summons to enter appearance the 1st and 2nd defendant neglected to enter appearance and/or file defence within the stipulated period. There is an affidavit of service duly filed on 31st October 2017.
3. The 3rd defendant entered appearance through the firm of M/S Osero & Co. Advocates on 20th November 2017. The 3rd defendant also filed a statement of defence dated 14th February 2018 and filed in court on 15th February 2018. In paragraph 4 of the statement of defence, “the 3rd defendant categorically denies having knowledge about the ongoings between the plaintiff and the 1st and 2nd defendants, and it is a total stranger to the allegations contained in the amended plaint. The plaintiff is put to strict proof thereof”. It prays that the plaintiff’s suit be dismissed with costs.
4. The plaintiff set down the matter for hearing on 27th February 2020. The 3rd defendant was duly served. There is an affidavit of service sworn by Peter M. Keli court process server on the 20th February 2020 and filed in court on 21st February 2020. The court was satisfied that the 3rd defendant had been duly served and directed that the matter proceeds exparte.
5. PW1, Mary Wanjiku Kimani, the plaintiff, told the court that she is the owner of House No. 84-3D Umoja II estate. She adopted her witness statement dated 24th August 2017 and the bundle of documents dated the same date. She told the court that she was allocated the suit premises by the 3rd defendant having applied for allocation under application number 024831 in the year 1987. It was followed by balloting which earned her ballot No. 761 and a house account number 23979 was opened on her name by the then Nairobi City Council (predecessors to the 3rd defendant).
6. She paid the Kshs.58,490 being the purchase price of the house. She made payments by instalments. She was issued receipt no. 4693477 dated 3rd March 1999. She further told the court, she has been paying the rates in respect of the suit premises.
7. That in or about May 2016 the 1st defendant forcefully and illegally took possession of the units comprised in the suit premises and placed an illegal occupant being the 2nd defendant who pays rent to the 1st defendant.
8. In support of her case, the relied on the documents in the list of documents dated 24th August 2017. She produced the original letter of allocation as exhibit P1; the original house card exhibit P2; letter dated 26th March 1999 exhibit P3; receipt for Kshs.55,190 exhibit P4; receipt no. 386310 dated 5th January 1988 – marked exhibit P5; she also produced a letter dated 19th December 2016 by the Director of Investigations of the 3rd defendant confirming the house belongs to her as exhibit P6. She also produced two other letters as exhibit P7 and 8 respectively.
9. The plaintiff’s case has not been controverted. I find that she has demonstrated she acquired the suit premises. On the other hand, the 1st and 2nd defendants had the opportunity to show how they acquired the suit premises but they neglected and/or refused to participate in these proceedings.
10. All in all, I find that the plaintiff has proved her case against the defendants on a balance of probabilities. I enter judgment in her favour as follows;-
(a) That a declaration is hereby issued that the plaintiff is the sole legal owner of the leasehold interest in House Number 84-3D situated at Umoja II Estate Nairobi from Nairobi City County Government.
(b) That an order of eviction is hereby issued against the 1st and 2nd defendants jointly and severally.
(c) That the plaintiff shall have costs of the suit and interest.
It is so ordered.
Dated, signed and delivered in Nairobi on this 19th day of November 2020.
……………………….
L. KOMINGOI
JUDGE
In the presence of:-
No appearance for for the Plaintiff
No appearance for the Defendants
Phyllis - Court Assistant