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ELCPartially AllowedNot stated in judgment (plaint dated 13/10/2014; amended plaint filed 23/6/2017)· [2020] KEELC 2528 (KLR)

Rachel Njoki Mucina & another v John Mwaura [2020] KEELC 2528 (KLR)

Environment and Land Court
11 May 2020
BEB M Eboso
889 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court declared two Ruai plots belong to the plaintiffs, ordered the trespasser evicted, and awarded Kshs 500,000 after he ignored the case.

What this practically means

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Executive summary

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By a plaint dated 13/10/2014, amended on 23/6/2017 to add the 2nd plaintiff, the plaintiffs sued the defendant seeking an eviction order, a declaration that Plots I.7 and I.7B excised from LR No 10904/02 at Ruai, Nairobi belong to them, mesne profits, costs and interest. The plaintiffs' case was that the 1st plaintiff purchased the plots from Embakasi Ranching Company on 28/11/1982 and had them registered in the joint names of herself and her daughter, the 2nd plaintiff, and that in 2007 the defendant trespassed and erected temporary structures, denying them use and occupation. The defendant was served personally on 16/12/2014 and by notice in the Standard Newspaper on 31/8/2017 but neither entered appearance nor filed a defence. The suit proceeded exparte on 18/2/2020, with the 2nd plaintiff testifying and producing a bundle of eight documents. Counsel for the plaintiffs relied on two undefended-suit authorities. The court found the plaintiffs to be the beneficial owners of the suit properties as against the defendant, in the absence of any defence or controverting evidence, and granted the prayers for eviction, declaration and mesne profits. However, because no evidence was led to assist in assessing mesne profits, the court awarded only nominal mesne profits of Kshs 500,000. The defendant was ordered to bear the costs of the suit, and a 60-day stay of execution was granted on account of the Covid-19 pandemic. Judgment was delivered at Nairobi on 11 May 2020 by B M Eboso J.

Key legal issues

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01

Ownership of the suit properties in an undefended suit

Holding

The plaintiffs proved that the 1st plaintiff acquired the plots through purchase of shares in Embakasi Ranching Company and had them informally registered jointly with the 2nd plaintiff; they are the beneficial owners as against the defendant

Reasoning

The 2nd plaintiff testified unchallenged that the 1st plaintiff purchased the plots from Embakasi Ranching Company in 1982 and had them registered in the joint names of the plaintiffs. The defendant, though served personally and by newspaper advertisement, neither entered appearance nor filed a defence. The court therefore accepted the uncontroverted evidence and found the plaintiffs to be the beneficial owners as against the defendant.

p. 2
02

Entitlement to eviction and mesne profits following trespass

Holding

Prayers for eviction, declaration and mesne profits were granted in terms set out in the disposal order, with only nominal mesne profits of Kshs 500,000 awarded

Reasoning

The plaintiff's unchallenged evidence was that the defendant trespassed in 2007, erecting temporary structures, fencing the plots and denying the plaintiffs use and occupation. In the absence of a defence the court accepted this evidence. However, since no evidence was led to assist the assessment of mesne profits, the court awarded only nominal damages of Kshs 500,000 rather than an assessed sum.

p. 2

Legal principles established

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  • In an undefended suit where the defendant neither enters appearance nor tenders evidence, the uncontroverted evidence of the plaintiff may sustain a declaration of beneficial ownership as against the defendant

Court orders

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  1. 1.A declaratory order that as against the defendant, the plaintiffs are the beneficial owners of Unsurveyed Plot Number I.7 and I.7B said to form part of Land Reference Number 10904/02 situated in Ruai, Nairobi City County
  2. 2.The defendant, together with his servants, agents and or employees, to be evicted from the suit properties
  3. 3.Nominal mesne profits of Kshs 500,000 awarded to the plaintiffs against the defendant
  4. 4.The defendant to bear costs of the suit
  5. 5.Stay of execution for 60 days due to the Covid-19 pandemic

Authorities

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Cases cited (2)

  • Jimmy Musyoki Kilonzo v Philip Nthei
    [2008] eKLR
  • Ali Kolela Montet v Moses Ekwiy Elany
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property situated in Ruai, Nairobi County

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rachel Njoki Mucina & another v John Mwaura [2020] KEELC 2528 (KLR)", Case Analysis (2020). Not stated in judgment (plaint dated 13/10/2014; amended plaint filed 23/6/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2528/eng@2020-05-11

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