[2018] KEELC 2987 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAKURU

CASE No. 44 OF 2014

TITUS NG’ANG’A KAMUYU.............................PLAINTIFF

VERSUS

JOSEPH GITAGI MUTHEKI...................1ST DEFENDANT

MUTHEKI MUCHONJORU....................2ND DEFENDANT

JUDGMENT

1. This is an old matter which was filed in the High court and was later transferred to this court. By plaint dated 20th January 1992 and filed in court on the same date, the plaintiff sought judgment against the defendants for:

(a) A declaration that the plaintiff is the proprietor of parcel No. Bahati/Engorusha Block 1/8.

(b) A declaration that the first defendant is a trespasser on Bahati/Engorusha Block 1/8.

(c) Eviction of the 1st defendant from the suit premises.

(d) Permanent injunction restraining the defendants and/or their servants or agents from interfering with the suit premises.

(e) General damages for trespass.

(f) Mesne profits.

(g) Costs of this suit.

(h) Interest on (d), (e) and (f) above.

(i) Any other or further relief that this honourable court may deem fit to grant.

2. The plaintiff’s case is that he is the registered proprietor of land known as Bahati/Engorusha Block 1/8, the suit property. He accused the defendants of invading the suit property, constructing a permanent house on it and grazing animals on it. He therefore sought the prayers enumerated above.

3. When the matter came up for hearing on 21st March 2017, Mr. Mbiyu, learned counsel for the plaintiff informed the court that the 2nd defendant passed away on 22nd October 2014 and that the suit against him had therefore abated.

4. Though the defendants entered appearance, no defence was filed. Further, despite defendants’ advocates on record being served with hearing notice, neither the 1st defendant nor the advocates attended the hearing of the suit on 21st March 2017. Accordingly, the hearing proceeded notwithstanding the non-attendance of the 1st defendant or his counsel.

5. The plaintiff testified as PW1 in support of his case. He did not call any other witness. He told the court that the 1st defendant is the son of the 2nd defendant and that the 2nd defendant sold to him (plaintiff) a parcel of land measuring 5 acres on 15th August 1983. The 5 acres were hived off from the 2nd defendant's land comprising 229 acres. The plaintiff took possession of the 5 acres immediately awaiting the 2nd defendant to get a title deed for the 5 acres and his remaining 224 acres. The 2nd defendant delayed obtaining a title for the plaintiff. In 1989, the plaintiff discovered that the 2nd defendant had obtained title in early 1989. As a result, the plaintiff filed a case against him on 30th August 1989. The case was Nakuru HCCC No. 265 of 1989 wherein the plaintiff sought specific performance. The case was heard and on 8th November 1990 the court ordered the Nakuru Land Registrar to issue a title deed to the plaintiff. A title was issued pursuant to those orders on 5th September 1991. A certificate of search as at 17th March 2017 was produced to show that the plaintiff is still the registered owner. However, the 1st defendant registered a restriction against the title on 24th November 2016. After getting the title the plaintiff went to the suit land on 6th December 1991 with a view to surveying a site to build a house. He found the 1st defendant and another man constructing a house on the plot. On being asked why they were doing so the 1st defendant said the land was his father's.

6. He added that the 2nd defendant successfully applied to set aside the judgment in HCCC 265 of 1989. The case was heard afresh and on 31st May 2010 D. K. Maraga J. (as he then was) delivered a judgment wherein he found that the land was the plaintiff’s. He produced a copy of the judgment as well as the extracted decree and urged the court to issue an eviction order against the defendants. He concluded by stating that the 2nd defendant passed away in 22nd October 2014.

7. Upon conclusion of PW1’s evidence, both the plaintiff’s and defence cases were closed. An order was made that written submissions be filed and that the defendants’ advocates be notified of the next date. The plaintiff’s submissions were filed on 20th April 2017. The 1st defendant did not file any submissions. The matter came up on 10th November 2017 for mention to take date of judgment. The 1st defendant attended in person and told the court that he had no advocates in the case. He disowned the advocates on record for the defendants. He was reminded by the court that the matter was coming up for mention to take date of judgment. So as to give 1st defendant time to liaise with advocates on record for the defendants or to take any other necessary step, the matter was rescheduled to 29th November 2017 for mention to take date of judgment. Come 29th November 2017, the 1st defendant had not taken any concrete step either to change advocates or to liaise with the advocates on record for him. The court thus declined to adjourn the matter further and accordingly scheduled a date for judgment.

8. In the submissions filed on behalf of the plaintiff by his advocates, it is submitted that the plaintiff has proved his case on a balance of probabilities and as such the court is urged to grant judgement in favour of the plaintiff for:

a) A declaration that the plaintiff is the proprietor of the suit property and that the 1st defendant is a trespasser who should be evicted.

b) Kshs 3,000,000 being general damages.

c) Mesne profits at the rate of Kshs.2, 000 per acre per year from the year 1990 to 2002, Kshs.3, 000 per acre per year from the year 2003 to 2006, Kshs.4, 000 per acre per year from 2007 to 2012 and Kshs.5, 000 per acre per year from 2013 to 2017.

d) Costs and interests.

9. I have considered the pleadings and the submissions. The evidence tendered by the plaintiff has not in any way been challenged by the 1st defendant. From the material placed before the court, I am satisfied that the plaintiff is the proprietor of the suit property, having become registered proprietor on 2nd August 1991. I am further satisfied that the defendants trespassed into the suit property sometime around December 1991 and constructed a house on it.

10. The plaintiff has prayed for general damages for trespass and mesne profits. It is the plaintiff’s evidence that he filed another suit being Nakuru HCCC No.265 of 1989 against the 2nd defendant herein seeking specific performance in respect of the suit property. Indeed, pursuant to judgment dated 31st May 2010, D. K. Maraga J. (as he then was) entered judgment in favour of the plaintiff for specific performance, Kshs13,000 being liquidated damages for breach of contract and costs of the suit. In the extracted decree, it is stated that the hearing of the said suit took place on 25th May 2004 and 3rd May 2010. Considering that the plaintiff had become registered proprietor of the suit property on 2nd August 1991, he had ample opportunity to raise the claim for general damages and mesne profits in HCCC No.265 of 1989. The same applies to the claim for declaration that the 1st defendant had trespassed on his property way back in 1991. His claim on these aspects is res judicata.

11. All in all, I do not see why it was necessary to file this new suit. The plaintiff had ample opportunity to litigate all the issues through Nakuru HCCC No.265 of 1989. Purely for purposes of bringing the dispute herein to a close and in the spirit of Article 159 (2) (a) I will grant the plaintiff an order of eviction in respect of the 1st defendant. I however do not grant any of the other prayers sought. I also do not award costs.

12. In conclusion, I make the following orders:

a) The 1st defendant and his agents or servants to vacate the parcel of land known as Bahati/Engorusha Block 1/8 within 30 (thirty) days of service upon him of these orders. In default, the 1st defendant and his agents or servants be evicted from the aforesaid property. The eviction to be done in accordance with the provisions of Section 152 G of the Land Act, 2012.

b) I make no order as to costs of the suit.

Dated, signed and delivered in open court at Nakuru this 3rd day of May 2018.

D. O. OHUNGO

JUDGE

In the presence of:

No appearance for the plaintiff

No appearance for the defendants

Court Assistant: Gichaba