[2011] KEHC 2848 (KLR)
The court found that the plaintiff was the duly registered owner of the parcel of land known as Kijabe/Kijabe Block 1/4054, which had been illegally annexed and occupied by the defendants (Karima Schools). The plaintiff was deprived of the use of his land for 185 months, entitling him to mesne profits at the rate of...
Source-derived case information.
- Citation
- [2011] KEHC 2848 (KLR)
- Parties
- Plaintiff: Mutegi Karega; Defendant: Joseph Kinyanjui & Headmaster Njihia (for and on behalf of themselves and as trustees for Karima Primary School)
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 140 of 2009
- Procedural Posture
- Civil Case / Final Judgment
- Outcome
- judgment for the plaintiff
- Judges
- MJA Emukule
- Legal Topics
- Mesne Profits, Illegal Annexation, Valuation of Land, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mutegi Karega
Plaintiff
Joseph Kinyanjui & Headmaster Njihia (for and on behalf of themselves and as trustees for Karima Primary School)
Defendant
Procedural Posture
Civil Case / Final Judgment
Legal Issues
- 1 Whether the plaintiff is the duly registered owner of Kijabe/Kijabe Block 1/4054.
- 2 Whether the defendants illegally annexed and occupied the plaintiff's land.
- 3 Whether the plaintiff is entitled to mesne profits for the period of occupation by the defendants.
Ratio Decidendi
The court found that the plaintiff was the duly registered owner of the parcel of land known as Kijabe/Kijabe Block 1/4054, which had been illegally annexed and occupied by the defendants (Karima Schools). The plaintiff was deprived of the use of his land for 185 months, entitling him to mesne profits at the rate of Kshs 3,000 per month. The court accepted the District Land Officer's valuation, which determined the open market value of the land at Kshs 450,000. The total award to the plaintiff comprised mesne profits for the entire period of deprivation and the open market value of the land, amounting to Kshs 1,035,000, together with costs and interest at court rates until payment in full.
Court Disposition
judgment for the plaintiff
Orders
- Judgment for the plaintiff in the sum of Kshs 1,035,000.
- Defendants to pay costs of the suit.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO. 140 OF 2009
MUTEGI KAREGA…………………...…………….………………………………….PLAINTIFF
VERSUS
JOSEPH KINYANJUI & HEADMASTER NJIHIA
(for and on behalf of themselves and as trustees
for KARIMA PRIMARY SCHOOL)…………….……….............…………………..DEFENDANT
FINAL ORDERS
In a judgment dated and delivered in this court on 21st May 2010, I found and held that the Plaintiff was the duly registered owner of the parcel of land known as Kijabe/Kijabe Block 1/4054 which had been illegally annexed and taken over by the schools now known as Karima Schools, comprising Primary and a Secondary School. I found that the schools had held the Plaintiff's land and denied him the use thereof for a period of 185 months(from 29th July 1994 to 30th May 2010) and I gave a rate of Shs 3,000/= p.m. (for mesne profits), making a total of shs. 555,000/=.
I also directed the District Land Officer, Nakuru District to carry out a valuation of the plaintiff's land within 60 days, on the basis of a willing seller, willing buyer.
In the event the valuation was not carried out within 60 days as I had ordered. It was eventually done with much cajoling, and the Report dated 25th November 2010, by J. S. Wanjie(the District Land Officer, Valuer) was filed in court on 29th November 2010.
The Report is well laid out, and I thank the District Land Officer/Valuer Mr. J. S. Wanjie, for his work. He describes the basis of valuation of the land as follows:
"The valuation method adopted in this case is on COMPARATIVE LAND SALES, as the most realistic method to determine the CURRENT MARKET VALUE of the parcel of land in an OPEN MARKET where data used is gathered from actual sales of similar properties and the prices achieved for them in the prevailing land market in the zone, taking into account also of any differences among the parcels where willing buyers and sellers have transacted."
After making observations regarding the location of the plaintiff's parcel of land - that it is near an up-coming trading centre(Karima) and adjacent to academic institutions (the Karima Schools) and it fronts a newly built tarmac road, with attendant advantages, Mr. Wanjie also observes that electricity is available with Kenya Power and Lighting Co. Ltd, powerlines running along the frontage to the Highway with an existing step-down transformer.
With those observations and in light of the judgment given, the District Land Officer(Valuer) returned an open market value of the subject parcel, unencumbered currently at Kshs 450,000/= (Four hundred and fifty thousand only).
Having found for the plaintiff mesne profits of Shs 555,000/= up to 30-05-2010, that sum would now increase for the period 1. 06. 2010 to 31. 03. 2011 that is a period of ten (10) more months) by Shs 30,000/= at the constant rate of shs 3,000/= p.m. of mesne profits. In the result therefore, I would award the plaintiff a total sum of Ksh 1,035,000/= comprising -
(1)Mesne profits
(29. 07. 1994 to 31. 03. 2011 (95 months @3,000/= p.m.) … shs 585,000/=
(2)Open Market Value per the Valuer's Report shs 450,000/=
1,035,000/=
There shall therefore be judgment for the Plaintiff in the sum of Kshs 1,035,000/= together with costs, and interest at court rates until payment in full.
There shall be orders accordingly.
Dated, delivered and signed at Nakuru this 11th day of March 2011
M. J. ANYARA EMUKULE
JUDGE