[2007] KEHC 3032 (KLR)
The court found that the plaintiff had proved ownership of the suit land by producing the original title deed registered in his name. The defendant, having failed to enter appearance or file a defence, did not challenge the plaintiff's evidence. The court held that the plaintiff was entitled to an order of eviction...
Source-derived case information.
- Citation
- [2007] KEHC 3032 (KLR)
- Parties
- Plaintiff: Paul Mwangi Mwirigi; Defendant: Francis Nyoike Karianja
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 271 of 2006
- Procedural Posture
- Civil Case / Judgment After Formal Proof; Defendant Failed to Enter Appearance or File Defence
- Outcome
- Judgment for the plaintiff; order of eviction granted; damages for loss of use denied; costs awarded to plaintiff.
- Legal Topics
- Eviction, Ownership of Land, Title Deeds, Possession, Damages for Loss of Use
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mwangi Mwirigi
Plaintiff
Francis Nyoike Karianja
Defendant
Procedural Posture
Civil Case / Judgment After Formal Proof; Defendant Failed to Enter Appearance or File Defence
Legal Issues
- 1 Whether the plaintiff is the lawful proprietor of Loc. 4/Gakui/520 entitled to exclusive possession.
- 2 Whether the defendant is unlawfully occupying the suit land and should be evicted.
- 3 Whether the plaintiff is entitled to damages for loss of use of the land.
Ratio Decidendi
The court found that the plaintiff had proved ownership of the suit land by producing the original title deed registered in his name. The defendant, having failed to enter appearance or file a defence, did not challenge the plaintiff's evidence. The court held that the plaintiff was entitled to an order of eviction against the defendant as the latter had no legal right to remain on the land. However, the court declined to award damages for loss of use because the plaintiff did not quantify or prove the loss suffered. Costs were awarded to the plaintiff.
Court Disposition
Judgment for the plaintiff; order of eviction granted; damages for loss of use denied; costs awarded to plaintiff.
Orders
- The defendant shall vacate Loc. 4/Gakui/520 forthwith.
- Damages for loss of use are not awarded.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 271 of 2006
PAUL MWANGI MWIRIGI…………….………....….. PLAINTIFF
VERSUS
FRANCIS NYOIKE KARIANJA……….…………..DEFENDANT
JUDGMENT
By a plaint filed on 21. 3.2006, the plaintiff, Paul Mwangi Mwirigi sued Francis Nyoike Karianja seeking an order to evict the defendant Francis from the suit land. He also prayed for damages for loss of use.
The defendant was served with summons to enter appearance, the plaint and a verifying affidavit on 30th March, 2006, at his home having pointed out by the plaintiff, but the defendant refused and or failed to enter appearance or file a defence, prompting the plaintiff to request for judgment vide a request for judgment dated 29th May, 2006.
The interlocutory judgment was entered on 12th June, 2006, and a formal proof hearing conducted thereafter.
At the hearing, the plaintiff described himself as the proprietor of a piece of land described as Loc. 4/Gakui/520 for which he has the original title deed issued on 9. 9.92.
This is land he gives out free of charge to people who use it to plant subsistence crops.
He bought the land from Joseph Njuguna Ngugi. He prayed the court to order Francis out of this land. He is a neighbour whom the seller gave a portion of the land to plough. That he has no title to the land and should have moved out when the plaintiff bought the land but he did not. The plaintiff prayed for damages for loss of use of land.
The defendant not having entered appearance or filed a defence was not entitled to be served with a Notice of the hearing. He did not appear at the hearing, leaving the plaintiff’s evidence unchallenged. The plaintiff produced the original title deed to the suit land, registered in his name.
From the evidence on record, I am satisfied that the plaintiff proved his case on a balance of probabilities, so I find judgment for him against the defendant as prayed in prayer (a) of the plaint.
I will not award damages for loss of user of land because the plaintiff did not quantify his loss.
Finally, I award the plaintiff costs of the suit.
Dated at Nairobi this 15th day of March, 2007.
JOYCE ALUOCH
JUDGE