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ELCDismissedE.L.C. Case No. 150 of 2014 (originating summons dated 2nd September 2002)· [2018] KEELC 103 (KLR)

Martha Mwingi & 3 others v Nyaga Karinjaga & 4 others [2018] KEELC 103 (KLR)

Environment and Land Court of Kenya
15 November 2018
YAY.M. Angima
2,241 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Embu land court dismissed a property owner's eviction claim because they never proved the defendant actually occupied the plot in dispute.

What this practically means

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Executive summary

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By an originating summons dated 2nd September 2002 under Order XXXVI of the Civil Procedure Rules, 1948, the Plaintiffs sought a determination of whether the Respondents should vacate plot Embu/Municipality/1164 and who should bear the costs. The 1st and 2nd Plaintiffs, registered proprietors, had sold the suit property to the 3rd and 4th Plaintiffs as trustees of Triumph in Christ Ministries International but could not give vacant possession because of alleged illegal occupation. The Respondents each denied occupying the suit property, claiming separate plots in Shauri Yako Estate. The 1st and 2nd Respondents died during the pendency of the suit and the 4th could not be traced, so the suit proceeded against the 3rd Respondent (Betha Mwari) only. At trial the Plaintiffs' witnesses conceded that they had not confirmed the 3rd Defendant's occupation at the time of filing suit, that not all occupants had been sued, and that the Surveyor's report of 14th November 2007 did not list the 3rd Defendant as an occupant or find the occupants to be her tenants. The court answered the first two agreed issues affirmatively (ownership and sale proved), but held that the Plaintiffs had failed to prove occupation or possession by the 3rd Defendant, whose Plot No. 104 was separate from the suit property. The claim for exclusive possession was held academic as against her. Applying section 27 of the Civil Procedure Act and Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, the court dismissed the originating summons with costs to the 3rd Defendant.

Key legal issues

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01

Whether the Plaintiffs proved that the 3rd Defendant occupied or possessed the suit property

Holding

Not proved; the 3rd Defendant occupies Plot No. 104 which is separate from the suit property, and the Surveyor's report did not list her as an occupant

Reasoning

The Surveyor's report prepared pursuant to a consent order did not mention the 3rd Defendant as an occupant, and the nine occupants then in possession claimed allocation by the Municipal Council of Embu, not tenancy from her. The Plaintiffs' own witnesses conceded they did not confirm her actual occupation at the time of filing suit and that other squatters had not been sued.

p. 3
02

Whether registered proprietors are entitled to exclusive and peaceful possession

Holding

The question was academic as against the 3rd Defendant; registered owners' rights are subject to limitations such as limitation of actions, overriding interests and trusts

Reasoning

While registration generally carries a right to exclusive possession and quiet enjoyment, those rights may be limited by the law on limitation of actions, overriding interests, trusts or other vitiating factors, and by the Plaintiffs' failure to sue the rightful occupants. Since the Plaintiffs failed against the only remaining Defendant, no possession orders could issue.

p. 3
03

Costs of the action

Holding

Costs awarded to the successful 3rd Defendant pursuant to section 27 of the Civil Procedure Act

Reasoning

The court applied the general rule that costs follow the event, citing Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, and found no good reason to depart from awarding costs to the successful litigant.

p. 3

Legal principles established

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  • Costs follow the event and a successful litigant should normally be awarded costs unless there is good reason to direct otherwise

Court orders

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  1. 1.The Plaintiffs' originating summons dated 2nd September 2002 is dismissed with costs to the 3rd Defendant

Authorities

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Legislation

  • Civil Procedure Rules, 1948 Revised EditionOrder XXXVI
  • Civil Procedure Act (Cap 21)section 27

Cases cited (1)

  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Order XXXVI of the Civil Procedure Rules, 1948 Revised Edition (originating summons); Environment and Land Court

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, "Martha Mwingi & 3 others v Nyaga Karinjaga & 4 others [2018] KEELC 103 (KLR)", Case Analysis (2018). E.L.C. Case No. 150 of 2014 (originating summons dated 2nd September 2002). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/103/eng@2018-11-15

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