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ELCAllowedELC Civil Case No. 565 of 2009· [2019] KEELC 1198 (KLR)

Leonard Njogu v Permenas Kabuthiai [2019] KEELC 1198 (KLR)

Environment and Land Court
17 October 2019
LKL. Komingoi
824 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If you legally bought land at auction in Kenya, courts will evict anyone occupying it without right and can award you years of occupation damages.

What this practically means

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Executive summary

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The plaintiff sued for eviction, vacant possession, mesne profits, costs and interest in respect of LR No. Muguga/Kanyariri/450 in Kikuyu. On 31 May 2010, Muchelule J struck out the defendant's defence and entered judgment for the plaintiff, with the suit set down for formal proof. At formal proof, the plaintiff testified that he purchased the suit property at a public auction held on 27 July 2007 on behalf of Housing Finance Corporation of Kenya (through Dolphin Auctioneers) after the defendant defaulted on loan repayments; title was issued to him on 18 October 2007. He took possession in 2008 and carried out developments, but on 6 March 2009 he was evicted and the defendant took over the developed property, remaining in occupation with his wife and children for some nine years. The plaintiff's evidence, including the title deed, official search and a current valuation, was uncontroverted. The court held that the plaintiff was the registered owner entitled to all rights appurtenant to the land, including physical possession, and that the defendant and his family were trespassers. Relying on Kariuki Mathu v Registered Trustees of Shilo Tabernacle Church & Another, it granted eviction; applying Mistry Valji v Jahendra Raichand & 2 Others on the discretionary nature of mesne profits, it awarded Kshs. 2 million based on the valuation. Judgment was entered for the plaintiff on a balance of probabilities: eviction and vacant possession within 60 days (with forceful eviction in default), Kshs. 2 million mesne profits, and costs plus interest. Judgment delivered on 17 October 2019 by L. Komingoi J.

Key legal issues

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01

Entitlement to eviction and vacant possession

Holding

The plaintiff, having proved registration as owner following a public auction after the defendant's loan default, established title; the defendant's occupation was that of a trespasser and eviction was ordered.

Reasoning

The plaintiff bought the suit property at a public auction conducted on behalf of Housing Finance Corporation of Kenya after the defendant defaulted on loan repayments. Title was issued to him on 18 October 2007. He took possession in 2008 but was evicted on 6 March 2009, after which the defendant retook the developed property. The plaintiff's evidence was uncontroverted, and the defence had been struck out with judgment entered for the plaintiff. Relying on Kariuki Mathu v Registered Trustees of Shilo Tabernacle Church & Another, the court held the registered owner entitled to physical possession.

p. 1
02

Mesne profits

Holding

Mesne profits of Kshs. 2 million were awarded, based on the valuation produced and the period of the defendant's occupation from 6 March 2009.

Reasoning

The court accepted the plaintiff's testimony that the defendant took actual possession on 6 March 2009 and has been in continuous occupation since. Relying on Mistry Valji v Jahendra Raichand & 2 Others on the discretionary nature of mesne profits, the court found the plaintiff had suffered loss and damage and considered the Kshs. 2 million figure reasonable, as it matched the current valuation produced as exhibit P6.

p. 2

Legal principles established

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  • A registered owner of land is entitled to enjoy all rights appurtenant to the parcel, including taking physical possession, and persons in occupation without right are trespassers.
  • An award of damages and mesne profits is an exercise of discretion which an appellate court will not ordinarily interfere with unless irrelevant factors were considered, relevant ones left out, or the award is wholly erroneous.

Court orders

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  1. 1.An order of eviction and vacant possession issued; defendant and/or his representatives to give vacant possession within sixty (60) days from the date of judgment, in default the plaintiff at liberty to secure forceful eviction
  2. 2.Kshs. 2 million awarded as mesne profits
  3. 3.Costs of the suit and interest awarded to the plaintiff

Authorities

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Cases cited (3)

  • Kariuki Mathu vs Registered Trustees of Shilo Tabernacle Church & Another
    [2018] eKLR
  • Mistry Valji vs Jahendra Raichand & 2 Others
    [2016] eKLR
  • Kemfro Africa Ltd vs Lubia
    [1987] KLR 30
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (unspecified provision 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, "Leonard Njogu v Permenas Kabuthiai [2019] KEELC 1198 (KLR)", Case Analysis (2019). ELC Civil Case No. 565 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1198/eng@2019-10-17

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