[2005] KEHC 1911 (KLR)
The court found that the defendant lawfully purchased the suit land at a public auction, paid the full purchase price, and obtained transfer of title. The plaintiff, having lost title, became a trespasser by remaining on the land. The court relied on the prior determination in HCCC No. 116 of 2001, which confirmed...
Source-derived case information.
- Citation
- [2005] KEHC 1911 (KLR)
- Parties
- Plaintiff: Mathew Njuguna Nganda; Defendant: Catholic Diocese of Nakuru
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 399 of 2000
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Counter-claim allowed. Plaintiff ordered to vacate. Damages denied. Costs to defendant.
- Judges
- DK Musinga
- Legal Topics
- Trespass to Land, Public Auction Sales, Vacant Possession, Mesne Profits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathew Njuguna Nganda
Plaintiff
Catholic Diocese of Nakuru
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the defendant lawfully acquired title to the suit land through public auction.
- 2 Whether the plaintiff is a trespasser on the suit land after the transfer of title to the defendant.
- 3 Whether the defendant is entitled to eviction orders, general damages for trespass, mesne profits, and exemplary damages.
Ratio Decidendi
The court found that the defendant lawfully purchased the suit land at a public auction, paid the full purchase price, and obtained transfer of title. The plaintiff, having lost title, became a trespasser by remaining on the land. The court relied on the prior determination in HCCC No. 116 of 2001, which confirmed the defendant's ownership. As the plaintiff failed to vacate or deliver possession despite the court's earlier judgment, the defendant was entitled to an eviction order. However, the court declined to award general damages for trespass, mesne profits, or exemplary damages due to lack of evidence and the fact that the dispute was sub judice until the 2004 judgment. Costs were...
Court Disposition
Counter-claim allowed. Plaintiff ordered to vacate. Damages denied. Costs to defendant.
Orders
- Plaintiff, his servants, agents, and any other person claiming under him to vacate the suit land forthwith.
- If the plaintiff does not vacate within ten (10) days, the defendant is at liberty to take legal steps to evict him.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT 399 OF 2000
MATHEW NJUGUNA NGANDA………..…………PLAINTIFF
VERSUS
CATHOLIC DIOCESE OF NAKURU…….……DEFENDANT
JUDGMENT
The plaintiff sued the defendant alleging that it had persistently trespassed on the plaintiff’s parcel of land L.R. No. NYANDARUA/MAWINGO SALIENT/16221/1 (hereinafter referred to as “the suit land”). The defendant bought the suit land in a public auction that was conducted by M/S Nasioki Auctioneers on instructions of Kenya Commercial Bank Ltd. after the plaintiff defaulted in payment of a loan that had been advanced to him by the bank. The plaintiff therefore sought to restrain the defendant from trespassing or taking possession of the suit land.
The defendant filed a statement of defence and a counter-claim and stated that it lawfully purchased the suit land from a public auction. In its counter-claim, the defendant stated that the plaintiff was a trespasser into the suit land since it had lawfully purchased the same and the property had been registered in its name.
The defendant averred that the plaintiff was cutting down indigenous tress on the land and burning the same for firewood and that was causing the property to lose value. The defendant prayed that the plaintiff’s suit be dismissed with costs. It also sought an eviction order against the plaintiff, his servants, agents and all those residing with him from the suit land as well as general damages for trespass, mesne profits from 15th June 2000 until vacant possession, exemplary damages plus costs.
On 3rd May, 2001 the plaintiff’s suit was withdrawn with costs to the defendant. When the defendant’s counter-claim came up for hearing on 26/5/05, the plaintiff and his counsel never attended court and so the defendant’s case was heard ex parte. The defendant called one witness Ernest; Kamau Murimi, the Executive Secretary, Justice and Peace Commission of the defendant. He testified that the defendant purchased the suit land on 15/6/2000 through a public auction and paid the full purchase price of Kshs.7 million. The title to the land was thereafter transferred to the defendant but when the defendant tried to take possession of its land the plaintiff resisted. The issue of ownership of the suit land was determined in the defendant’s favour in HCCC No. 116 of 2001 where judgment was delivered on 10th November, 2004. The proceedings and the judgment in that matter were produced before the court. That determination notwithstanding, the plaintiff still refused and or failed to grant vacant possession to the defendant. The plaintiff was said to be grazing and cultivating the land and cutting down trees thereon.
I find that the defendant has established its case on a balance of probabilities and I order the plaintiff, his servants, and/or agents and any other person claiming under him to vacate the suit land forthwith. If the plaintiff will not have vacated the suit premises within the next ten (10) days from the date hereof, the defendant will be at liberty to take such legal steps as shall be appropriate to evict him therefrom.
The defendant prayed for general damages for trespass, mesne profits from 15th June 2000 and exemplary damages. However, no evidence was led to prove those claims. In \ any event, since the year 2000 the dispute over the suit premises was in court and it was not until 10th November, 2004 when the court determined the same in favour of the defendant. The court was not told whether any appeal had been preferred by the plaintiff against the said judgment. I will not therefore award any of those damages as claimed.
The plaintiff will bear the costs of the counter-claim.
DATED at Nakuru this 14th day of June, 2005.
D. MUSINGA
JUDGE
14/6/2005