[2019] KEHC 1274 (KLR)
The Plaintiffs lawfully acquired the suit property through a public auction after the Defendant defaulted on a loan. They paid the full purchase price, obtained a certificate of sale, and had the property registered in their names. The Defendant, despite being served and filing a defence, failed to contest the...
Source-derived case information.
- Citation
- [2019] KEHC 1274 (KLR)
- Parties
- Plaintiff: Simon Ngariu Maina; Plaintiff: Another (co-plaintiff); Defendant: Daniel Maina Gitau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 513 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiffs' claim allowed; permanent injunction, eviction order, and general damages granted.
- Legal Topics
- Public Auction Sale, Eviction Orders, Injunctive Relief, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Ngariu Maina
Plaintiff
Another (co-plaintiff)
Plaintiff
Daniel Maina Gitau
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiffs are entitled to a permanent injunction restraining the Defendant from interfering with their ownership and possession of the suit property.
- 2 Whether the Plaintiffs are entitled to an order of eviction against the Defendant from the suit property.
- 3 Whether the Plaintiffs are entitled to general damages for the Defendant's continued occupation of the suit property.
Ratio Decidendi
The Plaintiffs lawfully acquired the suit property through a public auction after the Defendant defaulted on a loan. They paid the full purchase price, obtained a certificate of sale, and had the property registered in their names. The Defendant, despite being served and filing a defence, failed to contest the Plaintiffs' evidence at trial. The court found the Plaintiffs' case proved on a balance of probabilities and held that they are entitled to a permanent injunction, eviction of the Defendant, and general damages for the Defendant's continued occupation of the property.
Court Disposition
Plaintiffs' claim allowed; permanent injunction, eviction order, and general damages granted.
Orders
- A permanent injunction restraining the Defendant, his servants and/or agents from remaining on, putting up any structures, using or otherwise interfering with the Plaintiffs' ownership, possession and/or occupation of LR No.11344/Block Z Plot No.B-540.
- An order of eviction do issue forthwith against the Defendant from LR No.11344/Block Z Plot No.B-540.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MILIMANI
ELC NO. 513 OF 2017
SIMON NGARIU MAINA & ANOTHER.................PLAINTIFFS
=VERSUS=
DANIEL MAINA GITAU............................................DEFENDANT
JUDGEMENT
1. The Plaintiffs filed a suit against the Defendant in which they sought the following reliefs:-
a. A permanent injunction restraining the Defendant, his servants and/or agents from remaining thereon, putting up any structures, using or otherwise howsoever from interfering with Plaintiff’s ownership, possession and/or occupation of the suit property LR No.11344/Block Z Plot No.B-540.
b. An order of eviction do issue forthwith against the Defendant from the suit property LR No.11344/Block Z Plot No.B-540.
c. General damages
d. Costs of the suit.
2. The Defedant who was duly served with summons to enter appearance and file defence, entered appearance and filed a defence but at the hearing of this suit, neither the Defendant not his advocate appeared. The hearing therefore proceeded ex-parte.
3. The Plaintiffs through the 2nd Plaintiff testified that on 12th August 2016, they saw an advertisement in the Star Newspaper which had advertised the suit property for sale by public auction. The Defendant had taken a loan from New Milimani Sacco Society Limited but failed to repay the loan. The Plaintiffs attended the public auction on 31st August 2016 where they became the highest bidders.
4. The Plaintiffs paid Kshs.800,000/= for the suit property. The Auctioneers gave them a certificate of sale dated 31st August 2016. They proceeded to Nairobi City County where records were changed into their names. Despite the Plaintiffs having purchased the suit property in a public auction, the Defendant has refused to vacate the suit property.
5. I have looked at the documents produced by the Plaintiffs. The Plaintiffs’ evidence is not controverted. The Plaintiffs produced a press advertisement from Star Newspaper of Friday 31st August 2016. They also produced a certificate of sale dated 31st August 2016 issued by Toplink Auctioneers. Also produced is a demand letter from their lawyers addressed to the Defendant.
6. Upon purchase, the records at the Nairobi City County were changed into the Plaintiffs names. I find that the Plaintiffs have proved their case on a balance of probabilities. I allow their claim in terms of prayers (a),(b) and (d) in addition to general damages of Kshs.200,000/=. Dated, Signed and Delivered at Nairobi on 5ththis day of December 2019
E.O .OBAGA
JUDGE
In the absence of Plaintiff who were aware of the date and time of delivery of Judgement.
Court Assistant: Hilda
E.O.OBAGA
JUDGE