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ELCAllowedMakueni ELC Civil Suit arising from plaint dated 13th July, 2017· [2018] KEELC 3004 (KLR)

Paul Mwova Mulee v John Mutunga Muthuku [2018] KEELC 3004 (KLR)

Environment and Land Court
28 May 2018
CMC.G. Mbogo
1,056 words in judgment
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The bottom line

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A Kenyan court ordered an estate administrator to transfer 7 acres of land sold years earlier, plus Kshs. 100,000 damages for blocking the buyer's development.

What this practically means

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Executive summary

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The Plaintiff, a Chief in Mbooni East Sub County, sued by plaint dated 13th July 2017 seeking an order compelling the Defendant to transfer and hand over vacant possession of land parcel Makueni/Kako/258, damages, interest and costs. His case was that he began purchasing 7 acres from the Defendant in 1987 through four sale agreements written in Kamba language, which he produced with translations, witnessed among others by the then Assistant Chief. The Defendant later obtained letters of administration over the estate of his deceased father, Muthuku Usongi, the registered proprietor of the parcel, confirmed on 24th September 2008, which showed the Plaintiff was to receive 7 acres and the Defendant to retain 18 acres. The Plaintiff obtained written authority in 1993 to develop the land but on 15th September 2016 the Defendant and his family obstructed his construction. The Defendant was served but did not enter appearance or file a defence, and the suit proceeded as undefended. The court found that the Plaintiff had proved his claim on a balance of probabilities and that the Defendant, as administrator, could not refuse to transfer the 7 acres in line with the sale agreements and the confirmed grant. Applying Halsbury's Laws of England on damages for trespass, the court held the Defendant could not benefit from his own mischief and awarded Kshs. 100,000/= as general damages. Judgment was entered for the Plaintiff with an order compelling transfer and vacant possession, the award with interest, costs, and authority for the Deputy Registrar to execute transfer forms if the Defendant failed to transfer the 7 acres.

Key legal issues

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01

Plaintiff's entitlement to transfer of 7 acres out of Makueni/Kako/258

Holding

The Plaintiff proved his claim; the Defendant as administrator must transfer the 7 acres in line with the sale agreements and the certificate of confirmation of grant

Reasoning

The Plaintiff produced four sale agreements in Kamba language with translations, a written authority to develop dated 26th January 1993, and a grant of letters of administration confirmed on 24th September 2008 showing the Plaintiff was to get 7 acres while the Defendant retained 18 acres. The Defendant, though served, did not enter appearance or file a defence, and the suit proceeded undefended. The court found no reason why the administrator could not effect the transfer.

p. 1
02

Damages for obstruction of the Plaintiff's development of the land

Holding

The Plaintiff, having established interference with his possession, was awarded Kshs. 100,000/= as general damages

Reasoning

The court applied Halsbury's Laws of England (4th ed., Vol. 45) on trespass damages, noting that a plaintiff who proves trespass is entitled at least to nominal damages and where actual loss is shown to compensation. The Defendant had granted written authority to develop, then obstructed construction on 15th September 2016, preventing the Plaintiff from developing his portion. The court held the Defendant could not benefit from his own mischief and fixed a nominal sum of Kshs. 100,000/=.

p. 2

Legal principles established

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  • A plaintiff who proves trespass is entitled at least to nominal damages, and where actual loss or use of the land is shown, compensatory damages reflecting the value of the use may be awarded
  • An administrator of a deceased's estate can be compelled to transfer land sold by the deceased pursuant to sale agreements and a confirmed grant reflecting the distribution

Court orders

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  1. 1.An order that the Defendant be compelled to transfer and hand over vacant possession of the parcel of land known as MAKUENI/KAKO/258 to the Plaintiff
  2. 2.General damages of Kshs. 100,000/=
  3. 3.Interest on the award
  4. 4.If the Defendant fails to transfer 7 acres out of Makueni/Kako/258, the Deputy Registrar of the court is authorized to transfer the necessary transfer forms
  5. 5.Costs of the suit to the Plaintiff
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim relating to land parcel Makueni/Kako/258

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Paul Mwova Mulee v John Mutunga Muthuku [2018] KEELC 3004 (KLR)", Case Analysis (2018). Makueni ELC Civil Suit arising from plaint dated 13th July, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3004/eng@2018-05-28

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