Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedE.L.C. Case No. 248 of 2015· [2018] KEELC 1361 (KLR)

Peter Munyi Waweru v Kariamburi Kanja Kathendu [2018] KEELC 1361 (KLR)

Environment and Land Court of Kenya
18 October 2018
YAY.M. Angima
1,454 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ordered a man who occupied land since 1962 to leave because he never showed up in court to prove his claim.

What this practically means

#

Executive summary

#
The Plaintiff sued for eviction of the Defendant from Title No. Ngandori/Kathangariri/T.83, mesne profits of Kshs 5,000 per month from 19th July 2000, costs and interest, asserting he had purchased the suit property from the Defendant's brother, Kobe, and been registered as proprietor on 25th July 2000, but the Defendant refused to vacate, erected structures and committed acts of waste. The Defendant denied the claim, pleaded open occupation as of right since 1962 under the Limitation of Actions Act, alleged the property was registered in Kobe's name in trust for the siblings, and contended the suit was res judicata owing to a pending Tribunal appeal. The Defendant did not attend the hearing and the suit proceeded ex parte. The court framed six issues and found, on the green card, title deed, Kobe's affidavit and the Land Control Board consent application, that the Plaintiff was the registered proprietor and had purchased the property for valuable consideration. The adverse possession and trust defences failed for want of evidence. The court held the Plaintiff entitled to the reliefs sought but found the claimed mesne profits of Kshs 5,000 monthly exaggerated for a 0.05 ha plot, awarding Kshs 2,500 monthly instead. Applying section 27 of the Civil Procedure Act and the principle that costs follow the event, the court awarded the Plaintiff costs, entered judgment for eviction and permanent restraint, granted mesne profits with interest at court rates, and allowed the Defendant 60 days to vacate voluntarily. The claim succeeded substantially, with the mesne profits rate reduced.

Key legal issues

#
01

Proprietorship and provenance of title

Holding

The Plaintiff proved he is the registered proprietor, having purchased the suit property from the Defendant's brother, Kobe, with Land Control Board consent.

Reasoning

The Plaintiff produced the green card showing registration on 25th July 2000 and his title deed; these were unchallenged. An affidavit sworn by Kobe confirming the sale and the Land Control Board consent application corroborated the purchase for valuable consideration.

p. 2
02

Limitation of Actions Act / adverse possession defence

Holding

The Defendant failed to demonstrate his defence under the Limitation of Actions Act, having adduced no evidence at the trial.

Reasoning

The defence of adverse possession and occupation since 1962 was pleaded but the Defendant did not attend court to prove it. Unproven, it could not defeat the registered proprietor's claim.

p. 2
03

Alleged trust in the original registration

Holding

The Defendant failed to demonstrate the existence of a trust in favour of himself and his siblings.

Reasoning

The plea that the property was registered in Kobe's name in trust for the siblings was not supported by any evidence, the Defendant having absented himself at trial.

p. 2
04

Entitlement to reliefs

Holding

Having proved proprietorship, the Plaintiff was entitled to eviction, permanent injunction and mesne profits, but at a reduced rate.

Reasoning

A registered proprietor enjoys all rights and privileges of proprietorship. Mesne profits of Kshs 5,000 per month were considered exaggerated for a 0.05 ha plot; the court substituted Kshs 2,500 per month.

p. 2

Legal principles established

#
  • Costs follow the event and a successful litigant is normally awarded costs unless the court for good reason directs otherwise.

Court orders

#
  1. 1.The Defendant, his family members and servants or anybody claiming through him shall be evicted from Title No. Ngandori/Kathangariri/T.83.
  2. 2.The Defendant shall be permanently restrained from entering upon or utilizing the suit property.
  3. 3.The Defendant shall pay mesne profits at the rate of Kshs 2,500/- per month with effect from 19th July 2000 and interest thereon at court rates until the date of eviction or vacation.
  4. 4.The Defendant shall bear the costs of the suit.
  5. 5.The Defendant shall have a grace period of 60 days within which to vacate the suit property voluntarily, after which eviction shall be carried out in accordance with the applicable laws.

Authorities

#

Legislation

  • Limitation of Actions ActCap 22
  • Civil Procedure Actsection 27

Cases cited (1)

  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Munyi Waweru v Kariamburi Kanja Kathendu [2018] KEELC 1361 (KLR)", Case Analysis (2018). E.L.C. Case No. 248 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1361/eng@2018-10-18

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