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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 2015 (KLR)

Muthike Mwai & 4 others v County Government of Kirinayga [2018] KEELC 2015 (KLR)

Environment and Land Court (inferred from the subject matter; the judgment states it was read at Kerugoya)
6 July 2018
SMS.N. Mukunya
352 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner won removal of a county government restriction on his title and an injunction, but got no damages because he failed to prove them.

What this practically means

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Executive summary

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The plaintiffs sued the defendant, the County Government of Kirinyaga, claiming to be the registered owners of land parcel MWERUA/KAGIO/2647 measuring about 6.5 acres near Kagio Market in Kirinyaga County. They alleged that on 20th March 2013 the defendant, without any colour of right, placed a restriction on the land, restricting its use and causing continuing loss and damage. They sought removal of the restriction, a permanent injunction restraining the defendant, its agents and anyone claiming through it from entering, removing, developing or otherwise interfering with their peaceful use of the land, and general and punitive damages. The defendant was served on 3rd November 2016 at its Kutus offices, evidenced by a return of service by Joseph Nduku Njuki, an advocate of the High Court, but filed no appearance or defence. Notice of formal proof dated 26th September 2017 was served on the County Secretary's office, with a return of service filed. At the formal proof the plaintiffs produced the signed title to the suit land in the names Muthike Mwai and others. Holding the suit unopposed, the court allowed the prayers in the plaint as prayed, save for the prayers for general and punitive damages, which were not proved. Judgment was read in open court at Kerugoya on 6th July 2018 before counsel for the plaintiffs; the defendant did not appear. No costs order is recorded in the judgment.

Key legal issues

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01

Undefended suit proved by formal proof

Holding

The prayers in the plaint were allowed as prayed, save for damages which were not proved

Reasoning

The defendant was duly served on 3rd November 2016 but filed no appearance or defence. Notice of formal proof dated 26th September 2017 was served on the County Secretary's office. The court treated the suit as unopposed, received the title deed produced on 2nd May 2018, and granted the prayers established on the evidence, declining damages for want of proof.

p. 1
02

Proof of ownership and unlawful restriction

Holding

The plaintiffs established registered ownership of MWERUA/KAGIO/2647 and the defendant's restriction lacked colour of right

Reasoning

The signed title of MWERUA/KAGIO/2647 in the names Muthike Mwai and others was produced in court on 2nd May 2018. The plaint alleged that the defendant placed a restriction on the land on 20th March 2013 without colour of right, restricting its use and causing loss. On formal proof and in the absence of any defence, this uncontroverted evidence sufficed.

p. 1

Legal principles established

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  • Where a suit is undefended and proved by formal proof, the plaintiff's claims are allowed as prayed except heads not proved

Court orders

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  1. 1.Removal of the restriction placed on land parcel MWERUA/KAGIO/2647 on 20th March 2013
  2. 2.Permanent injunction restraining the defendant, its agents and anyone claiming through it from entering, removing, developing or in any way interfering with the plaintiffs' peaceful right of use of the said land
  3. 3.Refusal of the prayers for general and punitive damages, which were not proved
Jurisdiction invoked
Not stated in the judgment

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, "Muthike Mwai & 4 others v County Government of Kirinayga [2018] KEELC 2015 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2015/eng@2018-07-06

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