[2017] KEELC 1507 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC SUIT NO. 132 OF 2013

SOFIA WANJIRU KAMAU..................................PLAINTIFF

VERSUS

1. NJOKI KAMAU

2. IRENE WAMBURA

3. PETER GAKUNA

4. JOHN KAMAU NDUATI.........................DEFENDANTS

JUDGMENT

The plaintiff is the registered owner of all that parcel of land known as L.R. No. 36/V/37 situated at Mlango Kubwa, Nairobi (hereinafter referred to as “the suit property”).The plaintiff brought this suit against the defendants on 28th January 2013 seeking the following reliefs:-

a) Vacant possession.

b) Mesne profits.

c) Costs of the suit.

d) Any other relief this honourable court may deem fit to grant.

In her plaint dated 28th January 2013, the plaintiff stated as follows. She purchased the suit property from a company known as Mathare Quick Services Limited on 3rd October 1997. After purchasing the suit property, the property was transferred and registered in her name. She was thereafter issued with a certificate of title. She took possession of the suit property and has over the years been paying rates to the Nairobi City Council in respect of the suit property. After acquiring the suit property, she left Nairobi due to old age to go and stay in her rural home. In her absence, the defendants entered onto the suit property without her permission, occupied the same and unlawfully constructed semi-permanent structures thereon. The defendants have refused to vacate the suit property even after a demand was made upon them to do so. The defendants were served with summons to enter appearance but neither entered appearance nor filed a statement of defence.

When the suit came up for hearing on 20th March, 2017, the plaintiff gave evidence and closed her case without calling any witness. The plaintiff reiterated the contents of the plaint. The plaintiff told the court that she purchased the suit property from Mathare Quick Services Limited. The property was thereafter transferred to her on 3rd October 1997. The defendants entered the suit property and have refused to vacate the same. She has over the years been paying land rates to the Nairobi City County Government for the suit property. The plaintiff urged the court to make an order for the eviction of the defendants from the suit property. She told the court that the defendants have put up structures on the suit property which they have rented out to tenants. There are a total of seven houses on the suit property put up by the defendants. The plaintiff stated that she is entitled to mesne profits. She produced in evidence copies of Certificate of title dated 7th October, 1997, instrument of transfer dated 3rd October 1997 and receipts for rate payments as exhibits 1, 2, and 3 respectively.

After the close of the plaintiffs’ case, the plaintiff’s advocate Mr. Ngugi informed the court that he did not wish to make closing submissions. He informed the court that he wished to rely entirely on the evidence on record. The plaintiff’s claim against the defendants is based on the tort of trespass. Trespass is defined as any intrusion by a person on the land in the possession of another without any justifiable cause. See, Clerk & Lindsell on Torts, 18th Edition, page, 923, paragraph, 18-01. What I need to determine in this suit is whether the plaintiff is the owner of the suit property and whether the defendants have entered and occupied the said property without any justifiable cause. The plaintiff has demonstrated that she is the owner of the suit property by producing in evidence copies of the instrument of transfer of the suit property in her favour and a certificate of title for the suit property in her name. This suit was not defended by the defendants. The evidence that was tendered in court by the plaintiff was not controverted. The plaintiff’s title to the suit property was not contested. The plaintiff’s testimony that the defendants had entered onto and constructed structures on the suit property without her consent or authority was also not challenged. The plaintiff having proved her ownership of the suit property and the defendants’ entry and occupation thereof, the burden shifted to the defendants to justify their occupation of the property. In the absence of any defence or evidence from the defendants, the only conclusion this court can make is that the defendants have no justifiable cause for entering and occupying the suit property and as such they are trespassers on the property.

For the foregoing reasons, I am satisfied that the plaintiff has proved her claim against the defendants and that she is entitled to an order for vacant possession of the suit property. I therefore enter judgment for the plaintiff against the defendants jointly and severally in terms of prayer (a) of the plaint dated 28th January 2013. I have declined to grant prayer (b) because the plaintiff did not adduce sufficient evidence to enable the court assess the amount to award to the plaintiff as mesne profits. The defendants shall vacate and handover possession of the suit property to the plaintiff within ninety (90) days from the date of service of a copy of the decree extracted from this judgment upon them failure to which the plaintiff shall be at liberty to apply for their forceful eviction. The plaintiff shall file in court an affidavit of service of the said decree upon the defendants. The filing of the said affidavit of service shall be a condition precedent to any further proceedings herein at the instance of the plaintiff. The plaintiff shall have the costs of the suit.

Delivered and Signed at Nairobi this 6th day of October 2017.

S.OKONG’O

JUDGE

Judgment read in open court in the presence of:

Mr. Limo h/b for Ngugi for the Plaintiff

No appearance for the Defendants

Catherine Court Assistant