[2000] KEHC 271 (KLR)
The court found that the plaintiffs are the absolute registered owners of the property in question, as evidenced by the title deed and transfer documents. The defendant's continued occupation and collection of rent without any valid claim or consent from the plaintiffs constitutes trespass. The court held that, in...
Source-derived case information.
- Citation
- [2000] KEHC 271 (KLR)
- Parties
- Plaintiff: Muneer Omar Salim; Plaintiff: Najat Muneer; Defendant: Bakar Mohamed Awadh
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 121 of ??
- Procedural Posture
- Civil Suit / Formal Proof After Interlocutory Judgment in Default of Appearance
- Outcome
- Judgment for the plaintiffs. Declaration of ownership and award of general damages, costs, and interest.
- Legal Topics
- Ownership Dispute, Trespass to Land, Title Deeds, Damages for Trespass
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muneer Omar Salim
Plaintiff
Najat Muneer
Plaintiff
Bakar Mohamed Awadh
Defendant
Procedural Posture
Civil Suit / Formal Proof After Interlocutory Judgment in Default of Appearance
Legal Issues
- 1 Whether the plaintiffs are the absolute owners of property Mombasa/Block/XVII/1237.
- 2 Whether the defendant's continued receipt of rent and claim of ownership constitutes trespass.
- 3 Whether the plaintiffs are entitled to general damages for trespass.
Ratio Decidendi
The court found that the plaintiffs are the absolute registered owners of the property in question, as evidenced by the title deed and transfer documents. The defendant's continued occupation and collection of rent without any valid claim or consent from the plaintiffs constitutes trespass. The court held that, in the absence of any challenge to the plaintiffs' title or evidence of fraud, the plaintiffs are entitled to a declaration of ownership and to general damages for trespass. The defendant's actions were not only civilly actionable as trespass but also potentially criminal, though the plaintiffs did not pursue criminal proceedings. The court awarded general damages, costs, and...
Court Disposition
Judgment for the plaintiffs. Declaration of ownership and award of general damages, costs, and interest.
Orders
- Plaintiffs declared absolute owners of Mombasa/Block/XVII/1237.
- Defendant to pay KShs.120,000 as general damages for trespass.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO.121 OF 2000
MUNEER OMAR SALIM …………………………………………………. 1ST PLAINTIFF
NAJAT MUNEER ………………………………………………………….. 2ND PLAINTIFF
- versus –
BAKAR MOHAMED AWADH …………………………………………….. DEFENDANT
J U D G E M E N T
This case came before this Court to-day for formal proof after the Deputy Registrar of this Court entered interlocutory judgement on 6-6-00 in default of appearance.
At the hearing the Second Plaintiff Najat Muneer who was wife to the first Plaintiff Muneer Omar Salim said that sometime in December 1999 they jointly bought property known as Mombasa/Block/XVII/1237 from one Athman Mwakuaza for a consideration of KShs.650,000/-.
The property is registered under Registered Land Act Cap3000 in the names of the two who hold it absolutely. Exhibit 1 the Title Deed confirms this together with Transfer Exhibit 2. It is her evidence that when they took over the property which she says is a house with 7 rooms there were Tenants in it one of whom is the Defendant Bakari Mohamed Awadh. She says the Defendant is falsely claiming to be the owner of the building and is receiving rents from the tenants in the house.
There is a letter from Ms Y.A. Ali & Co. Advocates dated 22-9-99 stating that Defendant is the owner. But while this letter was written before the transfer of the said property to the owners on 8-12-99 the continuance of the Defendant in receiving rent is not an act of trespass but is criminal pretension and obtaining of the money with false pretences. The Plaintiffs would appear to be abetting a criminal act without reporting same. There is no doubt that the Plaintiffs own the property in question absolutely unless there is any better claim which can only be so if the Title Deed is false and the original owner from whom they bought the same was not the owner. The Defendant would be trespassing if he is in possession without any claim and against the consent of the owner.
I find the case proved on a balance of probability but in this case there is no doubt that the two are the owners of the property and I do declare. The plaintiff is also entitled to damages against the Defendant for trespass. There ought to have been a claim here for special damages also for refund of the rent retained by the Defendant.
As for General Damages. I think the Plaintiff is entitled to general damages in this regard I shall allow KShs.120,000/- as general damages plus costs and interest.
Dated this 16th November, 2000.
A.I. HAYANGA
JUDGE