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ELCPartially AllowedE&L No. 39 of 2015· [2018] KEELC 4103 (KLR)

Baraka Land Company Limited v Lucy Wanja Mwaniki [2018] KEELC 4103 (KLR)

Environment and Land Court
8 February 2018
1,175 words in judgment
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The bottom line

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The Environment and Land Court confirmed a landowner can evict a buyer who occupied a second plot without paying, but refused compensation because it was never properly claimed.

What this practically means

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Executive summary

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Baraka Land Company Limited sued Lucy Wanja Mwaniki seeking a declaration that it is the absolute registered owner of parcel Pioneer/Ngeria Block 1 (EATEC)6386, an order of eviction, mesne profits and costs. The suit was filed by plaint dated 7th February 2015 and an injunction was granted against the defendant on 19th March 2015. The defendant was served but filed no defence, and the suit proceeded by formal proof. The plaintiff's director testified that the defendant in 2003 agreed to purchase two plots (6385 and 6386), paid Kshs 123,500 out of Kshs 166,000, paying in full only for plot 6386, but occupied and developed plot 6385 without paying for it. The agreement was rescinded by letter dated 26/4/06 and demands to vacate went unheeded. The court framed the main issue as whether the defendant breached a fundamental term of the agreement. It found it undisputed that the defendant paid for only one plot but occupied the plaintiff's plot unlawfully, and that the plaintiff was the duly registered owner. The court cautioned that uncontroverted evidence does not obviate the plaintiff's burden of proof on a balance of probability, but held the claim proved. Counsel's authorities on rescission of land sale contracts and refund of deposits were found relevant. The mesne profits claim failed as it was not specifically pleaded nor proved, being special damages. Judgment was entered declaring the plaintiff the absolute registered owner, ordering vacant possession within 30 days (with eviction in default), a refund of Kshs 40,500 to the plaintiff, and costs plus interest.

Key legal issues

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01

Whether the defendant breached a fundamental term of the land sale agreement

Holding

The defendant breached the agreement by paying only for one of two plots yet occupying both; the plaintiff was the registered owner of the suit plot which the defendant occupied unlawfully

Reasoning

The court found it undisputed that the parties entered into a land sale agreement for two plots, that the defendant paid for only one, and that she occupied the second plot belonging to the plaintiff. The plaintiff produced title and rescinded the agreement by notice, and the defendant was duly notified of the rescission for non-payment but remained adamant. The plaintiff's uncontroverted evidence and exhibits proved ownership and unlawful occupation.

p. 2
02

Whether uncontroverted evidence entitles a plaintiff to judgment

Holding

No - the plaintiff must still prove the case on a balance of probability even where the defence does not respond

Reasoning

The defendant never filed a defence and the matter proceeded by formal proof, but the court cautioned that uncontroverted evidence does not guarantee success. The plaintiff retains an obligation to prove the claim on a balance of probability; failure to do so can result in dismissal despite absence of a defence.

p. 2
03

Whether mesne profits were awardable

Holding

The claim for mesne profits failed as it was not specifically pleaded nor proved

Reasoning

Mesne profits are special damages. Special damages must be both specifically pleaded and specifically proved; the court cannot be left to guess what special damage to award where it is not pleaded. Since no plea or evidence was led on mesne profits, that limb of the claim failed.

p. 2

Legal principles established

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  • Uncontroverted evidence does not automatically mean a claim must succeed; the plaintiff must still prove the case on a balance of probability
  • Mesne profits are special damages that must be specifically pleaded and proved
  • Rescission of a contract to sell land requires that the party in default be notified of the default and given an opportunity to rectify it

Court orders

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  1. 1.Declared the plaintiff the absolute registered owner of all that parcel of land known as Pioneer/Ngeria Block 1 (EATEC)6386
  2. 2.Defendant to give vacant possession of parcel Pioneer/Ngeria Block 1 (EATEC)6386 within 30 days, in default an eviction order to issue against the defendant, her developments and possessions
  3. 3.Plaintiff to refund Kshs 40,500 being the amount paid for the plot
  4. 4.Costs of the suit plus interest

Authorities

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Cases cited (2)

  • Joseph Njuguna Maina and 3 others v Daniel Mbugua Mari and another
    Nairobi ELC No 239 of 2014
  • Edward Mugambi v Jason Mathiu
    Civil Appeal No 286 of 2002 (2007) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court 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, "Baraka Land Company Limited v Lucy Wanja Mwaniki [2018] KEELC 4103 (KLR)", Case Analysis (2018). E&L No. 39 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4103/eng@2018-02-08

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