[2018] KEELC 4412 (KLR)
The court found that the plaintiff had proved on a balance of probabilities that it was the absolute and indefeasible proprietor of the suit properties, as evidenced by the Certificates of Lease and official searches. The defendants failed to adduce any evidence to challenge the plaintiff's title or substantiate...
Source-derived case information.
- Citation
- [2018] KEELC 4412 (KLR)
- Parties
- Plaintiff: Utisi Limited; Defendant: Hellen Kiili, Machakos County Executive Officer, Department of Decentralized Units, Urban Areas and Municipalities; Defendant: Joshua Musili, Machakos County Executive Committee Member, Department of Land, Energy, Environment and Natural Resources; Defendant: The County Government of Machakos
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 102 of 2013
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiff's suit allowed in part; permanent injunction granted; claim for damages dismissed; costs awarded to plaintiff.
- Judges
- OA Angote
- Legal Topics
- Title Registration, Trespass, Permanent Injunction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Utisi Limited
Plaintiff
Hellen Kiili, Machakos County Executive Officer, Department of Decentralized Units, Urban Areas and Municipalities
Defendant
Joshua Musili, Machakos County Executive Committee Member, Department of Land, Energy, Environment and Natural Resources
Defendant
The County Government of Machakos
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the absolute and indefeasible proprietor of the suit properties.
- 2 Whether the defendants trespassed on the plaintiff's land.
- 3 Whether the plaintiff is entitled to a permanent injunction and removal of the defendants' machinery from the suit properties.
Ratio Decidendi
The court found that the plaintiff had proved on a balance of probabilities that it was the absolute and indefeasible proprietor of the suit properties, as evidenced by the Certificates of Lease and official searches. The defendants failed to adduce any evidence to challenge the plaintiff's title or substantiate their claim of illegal acquisition. The Registered Land Act provides that a Certificate of Lease is prima facie evidence of ownership, and registration vests the leasehold interest in the registered proprietor. As the defendants' allegations were unsupported, the court held that the plaintiff's title was valid and indefeasible. However, the plaintiff's claim for mesne profits and...
Court Disposition
Plaintiff's suit allowed in part; permanent injunction granted; claim for damages dismissed; costs awarded to plaintiff.
Orders
- A permanent injunction is issued restraining the defendants, their agents, servants, or employees from trespassing on Kyumbi Trading Centre/67, 68, 73 and 74, Machakos County.
- The defendants are ordered to forthwith jointly and severally remove any of their machinery stationed on the suit properties or any part thereof.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 102 OF 2013
UTISI LIMITED.............................................................................PLAINTIFF
VERSUS
HELLEN KIILI
MACHAKOS COUNTY EXECUTIVE OFFICER,
DEPARTMENT OF DECENTRALIZED UNITS,
URBAN AREAS AND MUNICIPALITIES........................1ST DEFENDANT
JOSHUA MUSILI
MACHAKOS COUNTY EXECUTIVE COMMITTEE MEMBER,
DEPARTMENT OF LAND, ENERGY, ENVIRONMENT
AND NATURAL RESOURCES..........................................2ND DEFENDANT
THE COUNTY GOVERNMENT OF MACHAKOS........3RD DEFENDANT
JUDGMENT
1. In the Plaint dated 11th November, 2013, the Plaintiff averred that it is the registered proprietor of parcels of land known as Kyumbi Trading Centre/67, 68, 73 and 74, Machakos County; that the Defendants trespassed on the land on or about 24th October, 2013 and that a permanent injunction should issue restraining them from trespassing on the said land.
2. In their joint Defence, the Defendants made general denials to the Plaintiff’s claim and stated that the suit properties were illegally acquired.
3. The matter proceeded for hearing on 10th October, 2017 when only the Plaintiff’s Chairman, PW1, testified.
4. PW1 informed the court that the Plaintiff is a body corporate and that it is the registered proprietor of parcels of land known as Kyumbi Trading Centre/67, 68, 73 and 74 (the suit properties); that the Plaintiff is a bona fide purchaser for value without notice and that the Defendants should be restrained from trespassing on the suit properties.
5. PW1 produced in evidence the Certificates of Lease which were issued to the Plaintiff in respect to the suit properties on 17th April, 2008 together with the Certificates of official searches.
6. The Defence did not call any evidence.
7. The Plaintiff’s advocate submitted that the Defendants have not set up a Defence to the Plaintiff’s claim and that under Section 32(2) of the Registered Land Act, a Certificate of Lease is prima facie evidence of the matters shown in the certificate.
8. The Plaintiff’s advocate further submitted that as a result of the alleged trespass, the court ought to award the Plaintiff mesne profits and general damages for loss suffered as a result of the trespass.
9. The Plaintiff’s advocate referred this court to several authorities which I have considered.
10. The evidence before me shows that the Plaintiff was registered as the proprietor of the suit properties on 17th April, 2008. Indeed, the Plaintiff produced in evidence the Certificates for Leases and the official searches showing that it is the registered proprietor of the suit land.
11. Although the Defendants averred in the Defence that the Plaintiff acquired the suit land illegally, no evidence was called by the Defendants to show how the Plaintiff acquired the suit land illegally.
12. The Defendants did not call any witness to challenge the Plaintiff’s titles. Consequently, the issue of the Plaintiff having acquired the title documents illegally was not proved.
13. The Plaintiff’s titles are registered under the Registered Land Act (repealed). Section of 27(b) of the said Act provides that the registration of a person as the proprietor of a Lease shall vest in that person the leasehold interest described in the Lease.
14. Section 32(2) of the Act further provides that a Certificate of Lease shall be prima facie evidence of the matters shown in the certificate.
15. In the circumstances, I find and hold that the Plaintiff has proved on a balance of probabilities that it is the absolute and indefeasible proprietor of the suit land.
16. Although the Plaintiff has prayed for an award ofmense profits and general damages, no evidence was called from a valuer or otherwise to prove the claim for damages. In the circumstances, I decline to award any damages.
17. For those reasons, I allow the Plaint dated 11th November, 2013 in the following terms:
a. A permanent injunction be and is hereby issued restraining the Defendants jointly and severally whether by themselves or through their appointed agents, servants and or employees from trespassing on all that property known as Kyumbi Trading Centre/67, 68, 73 and 74, Machakos County, the suit properties.
b. An order be and is hereby issued that the Defendants do forthwith jointly and severally remove any of their machinery stationed on the suit properties or any part of properties Kyumbi Trading Centre/67, 68, 73 and 74, Machakos County.
c. Costs of the suit to be paid by the Defendants.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 23RD DAY OF FEBRUARY, 2018.
O.A. ANGOTE
JUDGE