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ELCPartially Allowed· [2017] KEELC 2082 (KLR)

Jesca Andenyi Andwati (suing as the personal Representative of the estate of Erick Melchzadek Andwati) v Ayub Maina & another [2017] KEELC 2082 (KLR)

Environment and Land Court
19 July 2017
MNMWANGI NJOROGEKBK. BOR
1,088 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A widow reclaimed her late husband's Nairobi plot from a builder with no title, but the court demanded proof before paying damages.

What this practically means

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Executive summary

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The plaintiff, administratrix ad litem of the Estate of Erick Melchzadek Andwati, sued the 1st defendant and the City Council of Nairobi over Plot No.109-Umoja Inner Core Sector V. She alleged that her late husband purchased the plot in September 1992 from one John Undubute Imbigo, who caused a transfer through the 2nd defendant, upon which a Letter of Allotment issued in the deceased's name. After the deceased's death, the 1st defendant allegedly constructed structures on the plot without being the registered owner and without development approval. She sought a permanent injunction, a mandatory injunction compelling removal of the structures (or reimbursement of removal costs), mesne profits, and an order compelling the 2nd defendant to execute an assignment in favour of the estate. The 1st defendant never entered appearance or filed a defence despite proper service; the 2nd defendant was represented at the hearing but filed no defence and did not contradict the plaintiff's claim in cross-examination. The court found the documentary evidence - the grant, sale agreement, correspondence, letter of allotment and photographs - persuasive and held that the plaintiff had proved her case on a balance of probabilities. The court granted prayers (a) and (d) as prayed, granted the mandatory relief only to the extent of giving the defendants six months from service of the decree to remove the structures, failing which the plaintiff may remove them, declined mesne profits for want of proof, and ordered the 2nd defendant to execute the assignment upon production of a full grant of letters of administration.

Key legal issues

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01

Ownership of the suit plot and capacity of the plaintiff

Holding

The suit land belonged to the plaintiff's deceased husband and the plaintiff, as administratrix ad litem, has capacity to sue.

Reasoning

The 2nd defendant, custodian of plot records, confirmed in writing that the plot had been allotted to J.U. Imbigo who transferred it to the deceased, who was still the registered owner. The grant of letters of administration ad litem was produced in evidence. Neither defendant filed a defence or contradicted the claim in cross-examination, so the documentary evidence stood unrebutted.

p. 2
02

Proof of the claim on a balance of probabilities

Holding

The plaintiff proved her case on a balance of probabilities except on mesne profits, on which no evidence was laid.

Reasoning

The documentary exhibits - the grant, sale agreement, correspondence, letter of allotment and photographs - were persuasive as to the genuineness of the claim. The 2nd defendant showed no interest in defending the claim and the 1st defendant did not appear or defend despite proper service. Mesne profits failed for want of proof.

p. 2

Legal principles established

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  • A plaintiff who proves ownership of land on a balance of probabilities, unrebuted by the defendants, is entitled to injunctive relief against a party who builds without title or approval.

Court orders

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  1. 1.Prayers (a) and (d) of the plaint granted as prayed (permanent injunction and related relief)
  2. 2.Prayer (b) granted to a limited extent: the defendants shall have six (6) months from service of the decree to remove the structures from the suit land, failing which the plaintiff will be entitled to remove the said structures
  3. 3.No award of mesne profits as the same were not proved
  4. 4.Prayer (c) granted only to the extent that the 2nd defendant shall execute the assignment in favour of the plaintiff as administrator of the deceased's estate only upon production by the plaintiff of a full grant of letters of administration

Authorities

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Cases cited (4)

  • Joseph N.K. Arap Ngoi vs Justice Moijo Ole Keiwua and 4 others
    Civil Application No. Nairobi 60 of 1997
  • Koinange & 13 others vs Koinange
    (1986) eKLR 23
  • Philomena Warigia Waweru vs Patrick Mbugua & 4 others
    (2008) eKLR
  • Alice Otieno Ochieng vs Monica Juma Apela & Another
    Kisumu HCCC No.365 of 1996
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit plot (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jesca Andenyi Andwati (suing as the personal Representative of the estate of Erick Melchzadek Andwati) v Ayub Maina & another [2017] KEELC 2082 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2082/eng@2017-07-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.