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ELCAllowedNot stated on the face of the judgment (associated with Kibera CMCC Criminal Case No. 4637 of 2012 – Republic v. Patrick Kaniaru)· [2018] KEELC 3295 (KLR)

Elizabeth Njeri Mbatia v Patrick Kaniaru [2018] KEELC 3295 (KLR)

Environment and Land Court
12 March 2018
KBK. BOR
587 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner won swift possession of her Riruta plot after the trespasser, already convicted of forcible detainer, failed to defend the case.

What this practically means

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Executive summary

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The Plaintiff, the registered proprietor of Dagorretti/Riruta/4654, brought an application under Order 36 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act seeking leave to enter the Suit Property and to evict the Defendant. She asserted that the Defendant encroached on the property in September 2012, prompting criminal proceedings in which he was convicted of forcible detainer contrary to Section 91 of the Penal Code, yet he refused to vacate. In support, she swore an affidavit annexing her title deed issued on 22/8/2001 and the judgment in Kibera Chief Magistrate's Court Criminal Case No. 4637 of 2012 – Republic v. Patrick Kaniaru, in which the lower court found the Defendant not entitled to possession. The Defendant was served with the plaint and application but neither entered appearance nor filed a defence, and did not attend the hearing. The court considered Order 36 Rule 1(b) and Rule 8(2), noting that judgment against a trespasser may be entered on affidavit unless the plaintiff knew of a contention entitling the defendant to unconditional leave to defend. Relying on the plaintiff's citation of Charles Githinji Muturi v. Julius Nderitu Kabera, the court found nothing to support leave to defend, the Defendant having been convicted of forcible detainer in respect of the same property. The application dated 4/9/2017 was allowed on 12 March 2018, with no costs order recorded.

Key legal issues

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01

Entitlement to summary judgment for possession against a trespasser with no defence

Holding

The application was allowed; the Defendant, having not entered appearance or filed a defence and having been convicted of forcible detainer in respect of the Suit Property, had nothing to entitle him to leave to defend.

Reasoning

The Plaintiff annexed her title deed for the Suit Property and a judgment of the Kibera Chief Magistrate's Court convicting the Defendant of forcible detainer. The lower court had found the Defendant not entitled to possession. Service was effected but the Defendant neither entered appearance nor filed a defence, and did not attend the hearing. The court applied Order 36 Rule 1(b) and Rule 8(2) and found no contention warranting unconditional leave to defend.

p. 2

Legal principles established

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  • Under Order 36 Rule 1(b), a plaintiff seeking judgment against a trespasser where the defendant has appeared but not filed a defence may apply for judgment for recovery of land on affidavit evidence, and the court must consider whether the defendant should be permitted to defend.
  • Under Order 36 Rule 8(2), the application for judgment must be dismissed if the plaintiff knew the defendant relied on a contention entitling him to unconditional leave to defend.

Court orders

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  1. 1.The application dated 4/9/2017 is allowed
  2. 2.Leave granted for judgment under Order 36 Rule 1(b) - the Defendant had no tenable defence warranting leave to defend
  3. 3.Implied recovery of possession of Dagorretti/Riruta/4654 and eviction of the Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 36 Rule 1 (and Rule 1(b))
  • Civil Procedure RulesOrder 36 Rule 8(2)
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Penal CodeSection 91 (forcible detainer)

Cases cited (1)

  • Charles Githinji Muturi v. Julius Nderitu Kabera
    Nyeri High Court Civil Appeal No. 68 of 1999
Jurisdiction invoked
Order 36 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act

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, "Elizabeth Njeri Mbatia v Patrick Kaniaru [2018] KEELC 3295 (KLR)", Case Analysis (2018). Not stated on the face of the judgment (associated with Kibera CMCC Criminal Case No. 4637 of 2012 – Republic v. Patrick Kaniaru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3295/eng@2018-03-12

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