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ELCPartially AllowedELC NO. 13 OF 2014· [2017] KEELC 2913 (KLR)

Evanson Kamau Waitiki v Omar Mohamed Omar [2017] KEELC 2913 (KLR)

High Court of Kenya
13 April 2017
LKL. KOMINGOI
480 words in judgment
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The bottom line

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The High Court in Mombasa declared a property occupier a trespasser and ordered his eviction because he offered no defence to the owner's title.

What this practically means

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Executive summary

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The plaintiff sued the defendant in the Environment and Land Court at Mombasa seeking a declaration that the defendant is a trespasser on TITLE NO. CR.22058 – LR NO. MAINLAND NORTH/III/1694, an order of eviction, mesne profits, costs and interest. The defendant entered appearance and filed a defence, but the plaintiff's application dated 15 April 2014 seeking to strike out the defence for failure to disclose a reasonable defence was allowed by Honourable Judge Omollo in a ruling dated 19 December 2014. The matter then proceeded to formal proof. The plaintiff testified that he bought the property at a public auction on 5 October 2012, having been the highest bidder following advertisement by M/S Regent Auctioneers. He was issued a certificate of sale dated 8 October 2012, a transfer from Barclays Bank of Kenya Limited on 5 December 2012, and a certificate of title on 14 December 2012. He produced six exhibits, including the auction advertisement, certificate of sale, deed of indemnity, transfer by charge, certificate of title, and the defendant's letter of 14 December 2013 asking for time to vacate. The plaintiff stated the defendant remained in occupation and that he did not wish to pursue the claim for mesne profits. With the defence struck out, the plaintiff's evidence was uncontroverted. The court found a good case, entered judgment for the plaintiff, issued the declaration of trespass and an eviction order, and awarded costs of the suit and interest. Mesne profits were not pursued and were not granted. Judgment was delivered on 13 April 2017 by L. Komingoi, J.

Key legal issues

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01

Proof of title at formal proof after striking out of the defence

Holding

The plaintiff, having purchased the property at a public auction, obtained a certificate of title, and facing no controverting evidence, made out a good case and judgment was entered as prayed

Reasoning

The plaintiff's defence was struck out by a ruling dated 19 December 2014, leaving the plaintiff's evidence uncontroverted. At formal proof the plaintiff testified that he bought the property at a public auction conducted by M/S Regent Auctioneers, was the highest bidder, was issued a certificate of sale, a transfer from Barclays Bank of Kenya Limited, and a certificate of title. He produced the newspaper advertisement, certificate of sale, deed of indemnity, transfer by charge, certificate of title and the defendant's letter seeking time to vacate. With the defendant's occupation unexplained and uncontroverted, the court found trespass proved and granted the declaration and eviction order with costs and interest.

p. 2

Legal principles established

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  • Where a defence has been struck out and the plaintiff's uncontroverted evidence establishes title and occupation by another, judgment is entered as prayed upon formal proof

Court orders

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  1. 1.A declaration that the defendant is a trespasser upon the plaintiff's property TITLE NO. CR.22058 – LR NO. MAINLAND NORTH/III/1694
  2. 2.An order for the eviction of the defendant from the plaintiff's property TITLE NO. CR.22058 – LR NO. MAINLAND NORTH/III/1694
  3. 3.Costs of the suit to the plaintiff
  4. 4.Interest thereon
Jurisdiction invoked
Original civil jurisdiction of the High Court (Environment and Land jurisdiction) under the Constitution of Kenya, 2010

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, "Evanson Kamau Waitiki v Omar Mohamed Omar [2017] KEELC 2913 (KLR)", Case Analysis (2017). ELC NO. 13 OF 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2913/eng@2017-04-13

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