[2019] KEELC 2439 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MAKUENI

E.L.C CASE NO.154 OF 2017

MCCORD KYALO MULWA..................................1ST PLAINTIFF

ROSELINE MUTINDI KATONI..........................2ND PLAINTIFF

-VERSUS-

FESTUS KAVIVYA MATHEKA........................1ST DEFENDANT

PATRICK MUSYOKI MBEVI......................... 2ND DEFENDANT

JUDGEMENT

1. The 1st and 2nd Plaintiffs are husband and wife. Both reside in Nairobi. They have sued the defendants over land parcel number 104 Kalimbini Land Owners Welfare Association (Kalawa) which they claim to have bought from the 1st Defendant.

2. By their plaint dated 24th April, 2017 and filed in court on 25th April, 2017, the two plaintiffs pray for judgement against the defendants jointly and severally for: -

(a) A declaration that the Plaintiffs are the lawful, bonafide, rightful proprietors of land parcel number 104 KALIMBINI LAND OWNERS WELFARE ASSOCIATION (KALAWA) measuring five (5) acres part of all that property known as L.R Number 1756/5 (Original Number 1756/3/2).

(b) A permanent order of injunction restraining the Defendants by themselves, agents and servants or through any person claiming under their right, authority and instructions from entering, interfering, constructing, demolishing, leasing out, carry on any business thereon or committing any act whatsoever of all that property known land parcel number 104 KALIMBINI LAND OWNERS WELFARE ASSOCIATION (KALAWA) measuring five (5) acres part of all that property known as L.R Number 1756/5 (Original Number 1756/3/2).

(c) An order that the Defendants do forthwith restore the Plaintiffs fence at their own sole expense to the Plaintiffs standard as was before damage, in the alternative the Defendants be ordered to settle the value thereof of the fence.

(d) An Order that the 1st Defendant do execute all necessary documents to effect transfer in favour of the plaintiff in respect of all that property known as land parcel number 104 KALIMBINI LAND OWNERS WELFARE ASSOCIATION (KALAWA) measuring five (5) acres part of all that property known as L.R Number 1756/5 (Original Number 1756/3/2).

(e) General damages.

(f) Costs of this suit with interest.

(g) Any other order and/or relief which this Honourable court may deem fit and appropriate in the circumstances to grant.

3. The Plaintiffs’ claim is denied by the Defendants vide their statement of defence dated 28th July, 2017 and filed in court on 31st July, 2017.

4. Hearing of the Plaintiffs case commenced on the 28th January, 2019 in the absence of the defendants. There was an affidavit of service filed by the Plaintiffs on the 28th January, 2019 which clearly showed that the defendants were served with the hearing notice on the 22nd November, 2018.

5. The two Plaintiffs, Mccord Kyalo Mulwa (1st Plaintiff), Roseline Mutindi Katoni (2nd Plaintiff) as well as their witness, Patrick Kui (PW1) adopted their respective statements which they recorded on 24th April, 2017 and filed in court on 25th April, 2017 as their evidence in chief.

6. The 1st Plaintiff’s evidence was that he had been looking for land to purchase in Sultan Hamud when his cousin, one Cyrus Mutua Ngonyo, introduced him to one Anthony Muindi Mwatu who knew the 1st Defendant herein. Mwatu led the 1st Plaintiff to the 1st Defendant who had a 5 acre piece of land to sell. On the 09th October, 2010, the 1st Plaintiff while in the company of one Mwatu and the 1st Defendant visited the suitland. The 1st Plaintiff took the 2nd Plaintiff who is his wife to view the suitland upon which he as well as the 2nd Plaintiff and the 1st Defendant negotiated the purchase price. The same was agreed at Kshs.750,000/=. The two Plaintiffs paid the 1st Defendant Kshs.300,000/= in cash on the 15th October, 2010. The balance of the purchase price was to be paid upon the 5 acres that the two Plaintiffs had bought from the 1st Defendant was excised from the Defendant’s 10 acre farm.

7. The 1st Plaintiff hired Patrick Kui (PW1) who is a surveyor to carry out the survey upon which parcel number 104 Kalimbini Land Owners Welfare Association was created. On the 16th June, 2011 the 2nd Plaintiff withdrew Kshs.450,000/= from Co-operative Bank, Moi Avenue Branch in Nairobi which they paid to the 1st Defendant. And on the same date, the two plaintiffs and the 1st Defendant executed a sale agreement (P.Exhibit No.1). They also paid Kshs.3,100/= for the survey exercise and were issued with three receipts produced as P.Exhibit Nos.2(a), (b) and (c) respectively.

8. In the same year, the two plaintiffs took possession of the suitland and they commenced to utilize it by building a residential house as well as setting aside one (1) acre for farming. They produced two (2) photographs to show the development on the land as P.Exhibit No.3.

9. That in the year 2013, Patrick Musyoki Mbui, the 2nd Defendant herein laid claim to the trees in the land that the two Plaintiffs bought from the 1st Defendant. The 2nd Defendant demanded from the two Plaintiff’s Kshs.50,000/= for the trees. Thereafter, the 2nd Defendant cut down the trees which he used to burn charcoal. He also demolished the fence made from concrete posts and barbed wire.

10. The 1st Plaintiff reported the matter to Sultan Hamud Police Station (See extract of O/B No.9/25/2/2012 P.Exhibit No.4).

11. The 1st Plaintiff re-engaged Patrick (PW1) to re-survey the suitland and it was established that the 2nd Defendant had encroached onto the Plaintiffs’ land.

12. The 2nd Plaintiff supported the 1st Plaintiff in her evidence in chief. She produced bank statement as P.Exhibit No.6 to support the withdrawal that she made of Kshs.450,000/= from Co-operative Bank, Moi Avenue in Nairobi on the 16th June, 2011.

13. Patrick Kui’s (PW1) evidence in chief was that in the year 2011, Festus Matheka, the 1st Defendant herein, hired him to excise 5 acres from his 10 acre farm. The witness said that he did as instructed by the 1st Defendant. That on 28/01/17 upon being instructed by the 1st Plaintiff, he went back to the farm where he resurveyed it and planted beacons in the presence of one James Mutua and Mutua Kasoo who are neighbours of the 1st Defendant. He added that he had invited the 1st Defendant to witness the exercise but the latter declined. The witness produced the report that he prepared as P.exhibit No.9.

14. In his written submissions, the Plaintiffs’ Counsel submitted that the Plaintiffs have clearly demonstrated that they are the lawful, bonafide, rightful proprietors of land parcel number 104 Kalimbini Land Owners Welfare Association as evidenced by the sale agreement dated 16th June, 2011 (P.Exhibit No.1). That from P.Exhibit No.1, the 1st Defendant who was the registered proprietor of land parcel number 104 Kalimbini Land Owners Welfare Association sold 5 acres of all that property known as LR number 1756 (original number 1756/3/2) to the plaintiffs.

15. That the Plaintiffs had shown that the 2nd Defendant took it upon himself to deliberately disregard the proprietary interest of the plaintiffs by breaking down their fence. That the 2nd Defendant proceeded to fence off the entire land and began making use of it to the exclusion of the plaintiffs. The counsel urged the court to find the defendants 100% liable for the damage on account of trespass severally and jointly.

16. The counsel urged the court to award the plaintiffs general damages as fair, just and reasonable compensation for the damage done to them. The counsel cited the cases of Gujral Sandeep Singh Ragbir vs. Minister for Public Works, Roads and Transport County Government of Kajiado & another [2018] eKLR and Nakuru Industries Ltd vs. S.S Mehta & Sons [2016] eKLR.

17. In the case of Gujral (supra), the Plaintiff was awarded Kshs.1,000,000/= as general damages for trespass and Kshs.9,000,000/= as exemplary damages. And in the case of Nakuru Industries (supra) the Plaintiff was awarded Kshs.500,000/= as general damages for trespass.

18. Arising from the evidence on record, the Counsel urged the court to award the Plaintiffs Kshs.2,000,000/= being general damages and Kshs.4,000,000/= being exemplary damages.

19. From the evidence on record, I am satisfied that the two plaintiffs are the lawful, bonafide, rightful proprietors of land parcel number 104 Kalimbini Land Owners Welfare Association (Kalawa) which they bought from the 1st Defendant as evidenced by the sale agreement marked as P.Exhibit No.1. That being the case, the 2nd Defendant had no justification to break the fence that the Plaintiffs’ had erected on their shamba. As if that was not enough, the 2nd Defendant fenced off a portion of the Plaintiffs land and continued to make use of it to the exclusion of the Plaintiffs. The 1st Defendant did not take any action to rectify the situation. The action by the two defendants is outrageous. I have looked at the defence dated 28th July, 2017 and filed in court on 31st July, 2017. It does not in any way rebut the evidence by the Plaintiffs. However, parties are bound by their pleadings. The plaintiffs have not pleaded for the award of exemplary damages and are therefore not entitled to the same. From the evidence on record, my finding is that the sum of Kshs.200,000/= would suffice as general damages. Being satisfied that the two Plaintiffs have proved that they have a cause of action against the defendants on a balance of probabilities, I hereby proceed to enter judgment against the defendants jointly and severally as hereunder: -

(a)

(b)

(c)

(d)

(e) Kshs.200,000/= being general damages.

(f)

Signed, dated and delivered at Makueni this 10th day of July, 2019.

MBOGO C. G.,

JUDGE.

In the presence of: -

Ms. Kyalo holding brief for Mr. Mutiso Makau for the Plaintiff

No appearance for the Defendant

Ms. C. Nzioka – Court Assistant

MBOGO C. G. (JUDGE),

10/07/2019.