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ELCPartially AllowedELC Case No. 1154 of 2015· [2019] KEELC 345 (KLR)

Lucy Wanjiru Njeru v Joseph Okwaro Olendo [2019] KEELC 345 (KLR)

Environment and Land Court
14 November 2019
EOE. O. Obaga
1,034 words in judgment
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The bottom line

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A Nairobi court confirmed a land buyer's ownership and stopped a builder from constructing on her plot after his ownership documents were denounced as forgeries.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant in the Environment and Land Court seeking a declaration that she is the lawful owner of plot number 0487 comprised in LR No. 11531/14 Hurlingham Development Scheme, a permanent injunction restraining the Defendant from trespassing on or continuing construction on the plot, and costs. She testified that on about 9th August 2013 she purchased the plot from Hurlingham Squatters Development, was issued with certificate of ownership No. 0345 and ballot No. 782, took possession and began constructing a house. She later discovered the Defendant continuing construction on the plot, claiming he had bought plot 0485 from one Lawrence Mutugi Kirimi; he eventually moved into the unfinished building in early 2019. The Defendant filed a defence of general denial but did not attend the hearing, which proceeded ex parte. The Plaintiff called PW1, the chairman of Hurlingham Squatters Development, who confirmed the sale and denounced the defendant's certificate No. 857 as a forgery, and PW3, the surveyor who subdivided the land, who confirmed plot 0487 was shown to and purchased by the Plaintiff and that plot 0485 is distinct. Applying the dictum of Madan J in CMC Aviation Ltd v Cruisair Ltd (No 1) that pleadings are not evidence until proved, the court found the Plaintiff's uncontroverted evidence credible and proved her case on a balance of probabilities. Judgment was entered for the Plaintiff in terms of prayers (a), (b) and (c) of the Plaint: declaration of ownership, permanent injunction, and costs. Dated, signed and delivered at Nairobi on 14th November 2019 by E. O. Obaga, Judge.

Key legal issues

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01

Effect of a defendant who files a defence but does not attend or adduce evidence at trial

Holding

The defence was a mere general denial; with no evidence to controvert the Plaintiff's case, the Plaintiff's uncontroverted and credible evidence proved her case on a balance of probabilities

Reasoning

The defendant filed a defence containing a general denial but neither attended the hearing nor called evidence, so the suit proceeded ex parte. Relying on Madan J's dictum in CMC Aviation Ltd v Cruisair Ltd, the court held that pleadings are not evidence until proved. The Plaintiff produced her certificate of ownership No. 0345, ballot No. 782, a survey fee receipt, and the chairman's confirmation letter, corroborated by PW1 and PW3. The defendant's certificate No. 857 was denounced as a forgery by both witnesses.

p. 2
02

Ownership of plot 0487 versus the defendant's claimed plot 0485

Holding

The Plaintiff proved ownership of plot 0487 through the certificate, ballot, surveyor's evidence and the chairman's testimony; the defendant's purported purchase from Lawrence Mutugi Kirimi of plot 0485 rested on documents denounced as forgeries

Reasoning

PW3, the surveyor engaged to subdivide LR 11531/14, identified plot 0487 as the plot shown to and purchased by the Plaintiff, confirmed plot 0485 is distinct and on the map, and disclaimed knowledge of Mutugi Kirimi. PW1 confirmed plot 0487 belonged to the Plaintiff and denounced the defendant's certificate and the secretary's signature as forgeries. The Plaintiff's possession and construction on the plot corroborated her title.

p. 1

Legal principles established

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  • Averments in pleadings are not evidence until proved; a decision cannot be founded on unproved pleadings
  • Uncontroverted credible evidence suffices to prove a case on a balance of probabilities even where the defendant files a defence but does not testify

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendant in terms of prayers (a), (b) and (c) of the Plaint
  2. 2.Declaration that the Plaintiff is the lawful owner of plot number 0487 LR No. 11531/14 Hurlingham Development Scheme
  3. 3.Permanent injunction restraining the Defendant, whether by himself or through agents, servants or employees, from trespassing upon, encroaching on or continuing construction on plot 0487 Hurlingham Development Scheme Chokaa
  4. 4.Costs of the suit awarded to the Plaintiff

Authorities

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Cases cited (1)

  • CMC Aviation Ltd – Vs- Cruisair Ltd (No 1)
    1978 KLR 103; [1976-1980] I KLR 835
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to ownership of land (plot 0487, LR No. 11531/14 Hurlingham Development Scheme)

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, "Lucy Wanjiru Njeru v Joseph Okwaro Olendo [2019] KEELC 345 (KLR)", Case Analysis (2019). ELC Case No. 1154 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/345/eng@2019-11-14

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