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ELCPartially AllowedE.L.C Case No. 154 of 2017· [2019] KEELC 2439 (KLR)

Mccord Kyalo Mulwa & another v Festus Kavivya Matheka & another [2019] KEELC 2439 (KLR)

Environment and Land Court
10 July 2019
MGMbogo C. G.
1,635 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Makueni court confirmed the buyers own a 5-acre parcel they purchased, awarded them Kshs.200,000 for trespass, but refused extra damages they hadn't claimed in their paperwork.

What this practically means

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Executive summary

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The plaintiffs, a married couple, sued the defendants over 5 acres being parcel 104 Kalimbini Land Owners Welfare Association (Kalawa), part of LR Number 1756/5, which they purchased from the 1st defendant for Kshs.750,000/= in 2010-2011, taking possession and developing it. They sought a declaration of ownership, a permanent injunction, restoration of their demolished fence or its value, execution of transfer documents, general damages and costs. They alleged that in 2013 the 2nd defendant demanded Kshs.50,000/= for trees, cut them down for charcoal, demolished their fence and encroached on the land. The defendants, though served with a hearing notice and having filed a statement of defence dated 28th July 2017, did not attend the hearing, and their defence did not rebut the plaintiffs' evidence. The court found the plaintiffs proved their purchase and possession through the sale agreement, bank withdrawal evidence, surveyor testimony and photographs. It held the 2nd defendant's fencing off and use of the land, and the 1st defendant's inaction, were unjustifiable, and found liability jointly and severally. However, the court refused exemplary damages because they were not pleaded, holding parties bound by their pleadings, and awarded general damages of Kshs.200,000/= only. Judgment was entered against the defendants jointly and severally. Notably, the printed disposition leaves orders (a) to (d) and (f) blank, so no express orders on the declaration, injunction, fence restoration, transfer or costs appear.

Key legal issues

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01

Proprietary interest of the plaintiffs in the suit parcel

Holding

The plaintiffs proved on a balance of probabilities that they bought parcel 104 Kalimbini (5 acres) from the 1st defendant and are its lawful, bonafide, rightful proprietors, evidenced by the sale agreement P.Exhibit No.1 and payment of the purchase price.

Reasoning

The 1st plaintiff traced the transaction: introduction, negotiation of Kshs.750,000/=, payment of Kshs.300,000/= in cash in October 2010 and Kshs.450,000/= withdrawn from Co-operative Bank on 16th June 2011, execution of a sale agreement, survey and issuance of receipts. The plaintiffs took possession, built a house and farmed. The defence did not rebut this evidence.

p. 2
02

Liability for trespass by the 2nd defendant

Holding

The 2nd defendant had no justification to break the plaintiffs' fence, fenced off a portion of the land and used it to the plaintiffs' exclusion; the defendants were liable jointly and severally.

Reasoning

The court found the plaintiffs' proprietary interest established, that the 2nd defendant demanded Kshs.50,000/= for trees, cut the trees, demolished the concrete-post fence and encroached, and that the 1st defendant took no action to rectify the situation. The defendants did not attend the hearing and their statement of defence did not rebut the plaintiffs' evidence.

p. 2
03

Quantum of damages

Holding

General damages of Kshs.200,000/= awarded; exemplary damages refused because unpleaded.

Reasoning

Counsel urged Kshs.2,000,000/= general and Kshs.4,000,000/= exemplary damages relying on Gujral and Nakuru Industries. The court held exemplary damages were not pleaded and fixed general damages at Kshs.200,000/= as sufficient compensation for the trespass and destruction of the fence.

p. 3

Legal principles established

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  • A plaintiff cannot be awarded a head of damages not pleaded, as parties are bound by their pleadings.

Court orders

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  1. 1.Judgment entered against the defendants jointly and severally
  2. 2.Kshs.200,000/= general damages (order (e) in the disposition)

Authorities

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Cases cited (2)

  • Gujral Sandeep Singh Ragbir vs. Minister for Public Works, Roads and Transport County Government of Kajiado & another
    [2018] eKLR
  • Nakuru Industries Ltd vs. S.S Mehta & Sons
    [2016] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land dispute (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, "Mccord Kyalo Mulwa & another v Festus Kavivya Matheka & another [2019] KEELC 2439 (KLR)", Case Analysis (2019). E.L.C Case No. 154 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2439/eng@2019-07-10

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