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ELCPartially AllowedCivil Case No. 120 of 2013· [2020] KEELC 1372 (KLR)

Samuel Ngugi Chege & others v Ali Said Mohamed & another [2020] KEELC 1372 (KLR)

Environment and Land Court
16 September 2020
3,715 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court dismissed 60 tenants' land claim but gave them 45 days to buy their plots at government-valued prices or face eviction.

What this practically means

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Executive summary

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Sixty plaintiffs, occupying portions of plot No. 82/II/MN in Kisauni, Mombasa as ground tenants with the landlord's consent, sued the two defendants after receiving notices of eviction. They sought a permanent injunction against eviction and a declaration of lawful occupation, having alleged that in 2005 the defendants offered to sell them the sub-plots at Kshs.31,305/= per plot but later demanded exaggerated sums. The defendants denied the claim, asserted the plaintiffs built permanent structures without consent and stopped paying ground rent, and counter-claimed for a declaration that the occupation was illegal, eviction, vacant possession and damages for trespass. Four issues fell for determination: whether the sub-divisions should be cancelled, whether the court could fix the purchase price, whether the defendant was entitled to vacant possession, and costs. The court held that parties are bound by their pleadings: no cancellation of the sub-divisions was sought in the plaint, and the plaintiffs led no surveyor's evidence proving the alleged defects, so the sub-divisions stood. By the consent order of 10 March 2014 the parties had donated to the court power to determine the price, which the court fixed per the Government Valuer's report, the valuation date being the 2005 offer rather than initial occupation. The suit was dismissed and the counter-claim allowed conditionally: the plaintiffs had 45 days to pay the government-valuation prices, failing which they would be declared trespassers and evicted; damages were pegged on outstanding ground rents. Costs of the suit and counter-claim went to the defendant.

Key legal issues

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01

Whether the sub-divisions should be cancelled

Holding

No - the sub-divisions stand; no prayer for cancellation was pleaded and no evidence proved the alleged defects

Reasoning

The plaintiffs never pleaded cancellation of the sub-divisions in the plaint, and their earlier interlocutory attempt was rejected as a trial through the backdoor. The allegations that sub-divisions cut through houses were pleaded only in a response without amending prayers, placed the legal burden on the plaintiffs, and were not proved by surveyor's evidence or identification of any specific affected plot.

p. 3
02

Whether the court can set the price payable for each sub-plot

Holding

Yes - by the consent order the parties donated that power to the court, and the price is as set by the Government Valuer

Reasoning

The parties, by a consent order of 10 March 2014, agreed that the Government Valuer carry out a valuation and file a report. The defendant relied wholly on that report. The plaintiffs, having consented to the valuation, led no evidence demonstrating why they disagreed with it. The valuation date is tied to the 2005 offer to sell, not the initial tenancy.

p. 4
03

Whether the defendant is entitled to vacant possession

Holding

Conditionally yes - plaintiffs have 45 days to accept the purchase offer, failing which eviction orders issue

Reasoning

Having found the plaintiffs were ground tenants and the sale price fixed by the Government Valuer's report, the court granted them a grace period of 45 days to pay. Only upon default are they declared trespassers and the defendant's counter-claim for eviction and vacant possession takes effect, together with damages pegged on outstanding ground rents.

p. 4

Legal principles established

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  • Parties are bound by their pleadings; relief not sought in the plaint cannot be granted
  • A court does not write contracts between parties
  • Where there is no ambiguity in an agreement it must be construed according to the clear words used by the parties
  • By consent, parties may donate to the court power to determine the price of the subplots per a government valuation

Court orders

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  1. 1.The plaintiffs' suit dismissed
  2. 2.The defendant's counter-claim succeeds
  3. 3.No cancellation of the subdivisions; the court finds no basis to interfere with the sub-divisions creating titles 11466/II/MN to 11552/II/MN
  4. 4.The court determines the price payable for each sub-plot as set by the Government Valuer's report
  5. 5.Plaintiffs granted 45 days to take the offer of paying for their plots as set out in the Government Valuer's Report; in default declared trespassers and orders of eviction/vacant possession to issue in favour of the defendant
  6. 6.Damages payable to the defendant in terms of outstanding ground rents from the plaintiffs up and until the offer to buy is accepted or vacant possession is given; defendant to calculate amounts due and serve notice, and in default of payment may execute
  7. 7.Costs of the suit and counter-claim awarded to the defendant

Authorities

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Cases cited (2)

  • National Bank of Kenya Vs Pipelasic Samkolit (K) Ltd & Ano
    (2001) eKLR
  • Jiwalji Vs Jiwalji
    (1968) E.A 547
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to land in Mombasa

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, "Samuel Ngugi Chege & others v Ali Said Mohamed & another [2020] KEELC 1372 (KLR)", Case Analysis (2020). Civil Case No. 120 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1372/eng@2020-09-21

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