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ELCPartially AllowedELC Case No. 2020 of 2001· [2018] KEELC 1648 (KLR)

Andrew Kariuki Njoroge v City Council of Nairobi & another [2018] KEELC 1648 (KLR)

Environment and Land Court of Kenya
26 July 2018
EOE. O. Obaga
1,981 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court evicted a buyer and ordered him to pay Kshs.3 million because he bought a plot knowing its title papers were forged.

What this practically means

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Executive summary

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This first-instance judgment of the Environment and Land Court at Milimani resolves competing claims to plot No. A-22 Umoja Innercore Sector 1. The plaintiff sued the defunct City Council of Nairobi in November 2001 seeking an injunction and a declaration of ownership, alleging he had purchased the plot from Geoffrey Kamau Ayub. The second defendant, Paul John Kimani, was joined and filed a defence and counter-claim seeking eviction, having purchased the plot from the original allottee James Njenga Mungai. The plaintiff withdrew his suit and filed no defence to the counter-claim, which proceeded to hearing. The court framed four issues: whether the plot was re-possessed from the second defendant and re-allocated to Ayub; whether Ayub had good title to pass; who is the lawful owner; and whether the counter-claim prayers were merited. On the evidence, the plot was never re-possessed: the second defendant's arrears fell below the council's re-possession threshold, dues were later cleared, and a lease was executed in his favour. Council reports showed Ayub's allotment was a forgery. Although Ayub was acquitted under section 210 of the Criminal Procedure Code in Makadara Criminal Case No. 9231 of 2002, the court held this was for insufficiency of evidence, not a vindication. The plaintiff, with prior notice of the forgery, could not claim innocent purchaser status. The counter-claim was allowed: eviction, general damages of Kshs.3,000,000/=, and a mandatory injunction were granted, with costs to the plaintiff; mesne profits were refused for want of pleading and evidence.

Key legal issues

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01

Whether the suit property was re-possessed from the second defendant and re-allocated to Geoffrey Kamau Ayub

Holding

There was no re-possession; the property remained in the second defendant's name and could not have been re-allocated.

Reasoning

Council records showed the property in the second defendant's name. His arrears (Kshs.14,900/=) fell below the Kshs.20,000/= threshold the Housing Development and Management Committee set for re-possession. The Director of Housing Development demanded rates from him in 1997 and confirmed in 2003 that he had cleared all dues, upon which a lease was executed in his favour. Council reports of 2001 confirmed the purported allocation to Ayub was a forgery.

p. 2
02

Whether Geoffrey Kamau Ayub had a good title to pass to the plaintiff

Holding

Ayub's allotment was forged, so he had no title to pass; the plaintiff, having had notice, was not an innocent purchaser for value without notice.

Reasoning

The first defendant's own documents supported the second defendant's case. The acquittal under section 210 of the Criminal Procedure Code was for insufficient evidence, not a vindication on the merits. The plaintiff was aware before purchase that Ayub's documents were forged, and was stopped from construction, yet continued; he cannot invoke innocent purchaser protection.

p. 2
03

Who between the plaintiff and the second defendant is the lawful owner

Holding

The second defendant is the lawful owner; he proved pleaded fraud on a balance of probabilities.

Reasoning

The second defendant's documentary trail, including council minutes, transfer records, executed lease and investigating officer's reports, established ownership. The internal memo allowing the plaintiff to pay rates was made as though the plaintiff had been vindicated when in truth the criminal acquittal was on evidence sufficiency. Fraud was specifically pleaded and proved through documents.

p. 2
04

Whether the second defendant is entitled to the prayers in his counter-claim

Holding

Eviction, general damages of Kshs.3,000,000/= and a mandatory injunction were granted; mesne profits were refused for want of pleading and proof.

Reasoning

Eviction and the mandatory injunction go hand in hand, with the plaintiff to be restrained from future trespass. General damages for trespass were assessable without proof of specific loss, and the court assessed Kshs.3,000,000/= given the plaintiff's rental income and the second defendant's years of deprivation. Mesne profits failed because they were not pleaded and no evidence was led.

p. 3

Legal principles established

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  • Where trespass is proved, a party need not prove specific damage or loss to be awarded general damages; the court assesses damages on the unique facts of each case.
  • A purchaser with notice of a defect in the vendor's title cannot claim to be an innocent purchaser for value without notice.
  • Fraud must be pleaded and proved, and it may be proved through documents on a balance of probabilities.

Court orders

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  1. 1.An order of eviction against the plaintiff from plot known as Plot A-22 Sector 1 Umoja Innercore (suit property)
  2. 2.General damages of Kshs.3,000,000/= in favour of the second defendant
  3. 3.A mandatory injunction directed at the plaintiff or his servants and/or agents from trespassing into the suit property
  4. 4.Costs of the suit to be paid by the plaintiff

Authorities

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Legislation

  • Criminal Procedure Codesection 210

Cases cited (1)

  • Park Tower Vs Moses Chege & others
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over ownership of land (plot No. A-22 Umoja Innercore Sector 1)

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, "Andrew Kariuki Njoroge v City Council of Nairobi & another [2018] KEELC 1648 (KLR)", Case Analysis (2018). ELC Case No. 2020 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1648/eng@2018-07-26

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