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ELCPartially AllowedE&L 385 of 2015· [2017] KEELC 2777 (KLR)

Fransisca Moraa Omete v Joshua Siele [2017] KEELC 2777 (KLR)

Environment and Land Court
15 May 2017
MOM.A Odeny
905 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered owner of LR No. Uasin Gishu/Kimumu Scheme/6568, sued the defendant seeking a temporary injunction, mesne profits and/or damages, costs and interest. Her uncontroverted evidence was that she entered into a verbal agreement selling ¼ acre to the defendant for Kshs 1.3 million; he paid a deposit of Kshs 445,000 and, despite agreeing to clear the balance of Kshs 855,000 by April 2015, never did so, remaining in occupation for over two years. A demand letter went unanswered. The defendant entered appearance through M/s Keter Nyolei & Co. Advocates but filed no defence; judgment in default was entered and the suit set down for formal proof. The court found the title deed and official search sufficient proof of ownership and, absent any controverting evidence, held the defendant's occupation illegal and the plaintiff entitled to eviction. However, the claim for mesne profits and damages failed: mesne profits are special damages that must be both pleaded and strictly proved, and the plaintiff adduced no evidence of the amount, the nature of the land, or economic activity on it, so the court could not assess figures. The court ordered the defendant to vacate within 30 days of service, failing which an eviction order would issue, disallowed mesne profits and damages, and awarded costs to the plaintiff. Judgment delivered at Eldoret on 15th May 2017 by M.A Odeny J.

Key legal issues

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01

Ownership of the suit land and entitlement to eviction

Holding

The plaintiff proved ownership through title and official search, and since the defendant failed to pay the balance of the purchase price, his occupation is illegal and the plaintiff is entitled to eviction

Reasoning

The defendant, though served, entered appearance but never filed a defence or attended the hearing. The plaintiff's uncontroverted evidence comprised a title deed and official search proving registration. With no evidence controverting her assertion that the defendant remained in occupation after failing to pay the purchase balance, the court held the plaintiff had a right to have him evicted.

p. 2
02

Mesne profits and damages

Holding

The claim for mesne profits and damages failed because the plaintiff did not plead and strictly prove them as special damages

Reasoning

The plaintiff gave no evidence of the amount of mesne profits, the nature of the suit land, or any economic activity on it. The court held it could not conjure figures without evidence, and reiterated that mesne profits are special damages requiring pleading and strict proof, relying on Njeri Kimani v Joseph Njoroge Murigi.

p. 2

Legal principles established

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  • A claim for mesne profits is in the nature of special damages, which must be pleaded and strictly proved
  • A title deed and certificate of official search constitute sufficient proof of ownership of land

Court orders

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  1. 1.The defendant to vacate the suit land within 30 days upon service of the judgment or decree; in default, an eviction order to issue permitting the plaintiff to evict the defendant
  2. 2.The prayers for mesne profits and damages are disallowed as they were not proved
  3. 3.The costs of the suit to the plaintiff

Authorities

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Cases cited (1)

  • Njeri Kimani vs Joseph Njoroge Murigi and others
    HCCC 819 of 2009
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (suit filed in the Environment and Land Court at Eldoret)

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, "Fransisca Moraa Omete v Joshua Siele [2017] KEELC 2777 (KLR)", Case Analysis (2017). E&L 385 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2777/eng@2017-05-15

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