Sofia Ali Mbarak v Beja Salim Matemo & another [2013] KEELC 22 (KLR)
The bottom line
#A Malindi court evicted occupiers who broke their written promise to vacate land and awarded the owner damages for destroyed crops.
What this practically means
#Executive summary
#Key legal issues
#Proof of the Plaintiff's claim in formal proof against a party who never filed a defence
The Plaintiff proved her case on a balance of probability and judgment was entered on the uncontroverted evidence
The Defendants entered appearance through Richard & Company Advocates but never filed a defence, so the matter proceeded by formal proof. PW1 produced the sale agreement, the occupation agreement of 13th May 2006, a written undertaking to vacate given before the area Chief, the Land Control Board consent and sub-division documents. PW2, an Agricultural Officer, assessed the crop damage. The court accepted this evidence as uncontroverted.
Whether the 1st Defendant's occupation could continue despite the written agreement to vacate
The occupation was conditional and the Defendants were bound to vacate on demand as they had agreed in writing
The court found that the 1st Defendant was permitted to occupy the land on condition that he vacate whenever the Plaintiff required, and that although he promised in May 2008, in writing before the area Chief, to leave with his family, the Defendants never left. Continued occupation after that undertaking amounted to interference with the Plaintiff's ownership justifying a permanent injunction and eviction.
Special damages for damaged crops
Special damages of Kshs. 27,675 was awarded on the strength of the Agricultural Officer's assessment report
PW2, an Agricultural Officer at Gede Location, testified that after a request from the area Chief he visited the suit property with the village elder and assessed damage to cassava and mango trees caused by the Defendants' animals at Kshs. 27,675. The assessment report was produced as an exhibit and the court awarded that sum as special damages.
Legal principles established
#- Uncontroverted evidence proving occupation terminable at will, breach of an agreement to vacate, and quantified crop damage establishes a claim on a balance of probability
Court orders
#- 1.Permanent injunction restraining the Defendants, their agents, servants and hirings from interfering with the Plaintiff's peaceful ownership of plot number 151/3 Ganda
- 2.An order evicting the Defendants from the suit premises
- 3.Special damages of Kshs. 27,675 awarded to the Plaintiff
- 4.The Defendants to pay the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction over the land claim (suit for injunction, eviction and damages); no specific constitutional or statutory provision cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sofia Ali Mbarak v Beja Salim Matemo & another [2013] KEELC 22 (KLR)", Case Analysis (2013). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/22/eng@2013-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.