[2018] KEELC 475 (KLR)
The court found that the Plaintiff had established, on a balance of probabilities, that he is the registered owner of the suit property, having acquired it through a valid sale agreement. The Defendant's occupation was deemed unlawful as he failed to provide any legal basis for his continued presence on the land....
Source-derived case information.
- Citation
- [2018] KEELC 475 (KLR)
- Parties
- Plaintiff: Samuel Waweru Mwangi; Defendant: George Muniu Kinuthia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 402 of 2012
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Judgment for the Plaintiff. Eviction and injunction granted. General damages for trespass awarded.
- Judges
- AK Bor
- Legal Topics
- Trespass to Land, Eviction Orders, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Waweru Mwangi
Plaintiff
George Muniu Kinuthia
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiff is the lawful proprietor of Dagoretti/Thogoto/T.394.
- 2 Whether the Defendant unlawfully trespassed and occupied the suit property.
- 3 Whether the Plaintiff is entitled to eviction orders, injunction, and damages for trespass.
Ratio Decidendi
The court found that the Plaintiff had established, on a balance of probabilities, that he is the registered owner of the suit property, having acquired it through a valid sale agreement. The Defendant's occupation was deemed unlawful as he failed to provide any legal basis for his continued presence on the land. The Defendant's challenge to the Plaintiff's title was unsupported by evidence of fraud or illegality. The Plaintiff's claim for general damages was considered, but the court found no evidence of specific loss and awarded a reasonable sum of Kshs. 100,000 as general damages for trespass. The court granted the Plaintiff's prayers for eviction and injunction as sought in the plaint.
Court Disposition
Judgment for the Plaintiff. Eviction and injunction granted. General damages for trespass awarded.
Orders
- The Defendant and/or his agents are hereby evicted from Dagoretti/Thogoto/T.394.
- An injunction is issued restraining the Defendant or his agents from remaining on or interfering with the suit property.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
MILIMANI LAW COURTS
ELC. CASE NO. 402 OF 2012
SAMUEL WAWERU MWANGI...........PLAINTIFF
-VERSUS-
GEORGE MUNIU KINUTHIA........DEFENDANT
JUDGEMENT
1. The Plaintiff is registered as proprietor of Dagoretti/Thogoto/T.394 (“the Suit Property”) which he bought from Hannah Wairimu, Martha Gathoni, Julia Muthoni, Rahab Wanjiku, Daniel Kinuthia, Elizabeth Wambui Ngwiri and Margaret Wanjiru Karanja vide a sale agreement dated 27/11/2009. The Defendant encroached onto this parcel of land in July 2011, uprooted the fencing poles and beacons and took possession and is still on the land.
2. The Plaintiff seeks an eviction order against the Defendant or his agents from the Suit Property; an injunction to restrain the Defendant or his agents from remaining on the suit land; general damages for trespass and mesne profits as well as costs in the Plaint dated 9/7/2012.
3. The Defendant filed a defence on 16/8/2012 which was struck out by the court. The Defendant has challenged the striking out and the Court of Appeal is yet to determine the issue. The application for stay of proceedings is also pending before the Court of Appeal.
4. The Plaintiff gave evidence and produced the sale agreement to show how he purchased the suit land. The Defendant is the son of Moses Kinuthia (now deceased) who was evicted from the suit land pursuant to a court order issued on 15/1/2009 in HCCC No. 2863 of 1993. The Plaintiff produced copies of the sale agreement, search done on the land, abstract of the title and the court orders.
5. Both parties filed submissions. The Defendant does not contend the fact that the Plaintiff is the registered owner of the land but challenges how the Plaintiff acquired the Suit Property. Defendant claims that cautions were placed on the land but they were removed in unclear circumstances and that the Plaintiff ought not to have bought the land because he was aware the Defendant laid claims to the same land.
6. The Plaintiff sought general damages of Kshs. 1 million for trespass and damages of Kshs. 10,000/= per month from the date of filing suit until delivery of possession. The court agrees with the Defendant’s submissions that the Plaintiff’s claim for damages is not based on what loss he suffered as no evidence was led on this issue. The court believes general damages of Kshs. 100,000/= is reasonable.
7. The court has considered the plaint, the evidence of the Plaintiff and the submissions of the counsel and is satisfied on a balance of probability that Plaintiff is the owner of the suit land. The court grants prayers i, ii, of the Plaint and general damages of Kshs. 100,000/=.
Dated and delivered at Nairobi this 6th day of December 2018.
K. BOR
JUDGE
In the presence of: -
Ms. Kibunja holding brief for Mr. Mugo for the Plaintiff
Ms. Mcharo holding brief for Mr. Thuita for the Defendant
Mr. V. Owuor- Court Assistant