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ELCPartially AllowedELC Case No. 27 of 2018· [2021] KEELC 2127 (KLR)

John Charo Mwaro & another v Emmanuel Katana Charo & 5 others [2021] KEELC 2127 (KLR)

Environment and Land Court
31 August 2021
JOJ.O. Olola
1,993 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Malindi court voided land sales made under a fraudulently obtained estate grant, ordered eviction within 45 days, and awarded Ksh. 800,000 in damages.

What this practically means

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Executive summary

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The Plaintiffs, suing on behalf of the estate of their late grandfather Simon Kafadzi Mwaro (registered proprietor of Kilifi/Ngerenya/303, approximately 12 acres), sought a declaration that sales by the 1st and 2nd Defendants to the 3rd to 6th Defendants were irregular, fraudulent and void; a permanent injunction; eviction supervised by the OCS Kilifi; and general damages for trespass. The suit property remained registered in the name of the deceased, who died in 1982. The Plaintiffs alleged that the 1st and 2nd Defendants, destitute nephews taken in by the family, secretly obtained letters of administration and sold portions of the land to the other Defendants between 2012 and 2013 with the aid of the ailing grandmother. The Defendants never entered appearance and the suit proceeded by formal proof on the uncontroverted testimony of PW1. The court noted that the High Court in Malindi Succession Cause No. 115 of 2012 had, on 1st September 2016, revoked the grant as fraudulently obtained and cancelled and declared null and void all transactions arising from it, and no evidence showed those orders had been set aside. Holding the Plaintiffs' case proved on a balance of probabilities, the court found continued occupation by the 3rd to 6th Defendants to be trespass. Although Ksh. 2 million in general damages was urged, no valuation or restoration cost was provided; the court awarded Ksh. 800,000/= jointly and severally. Judgment was entered with a declaration of nullity, a permanent injunction, vacant possession within 45 days failing which eviction supervised by the OCS Kilifi, damages, and costs to the Plaintiffs.

Key legal issues

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01

Validity of transactions founded on a revoked grant of letters of administration

Holding

Purported sales of the deceased's land made under a grant later revoked as fraudulently obtained are irregular, fraudulent and null and void

Reasoning

The High Court in Malindi Succession Cause No. 115 of 2012 had, on 1st September 2016, revoked the grant of letters of administration issued to the 1st and 2nd Defendants as fraudulently obtained, and cancelled and declared null and void any sale, subdivision, transfer or lease of the estate arising from that grant. The court found no evidence those orders had been set aside, and the Plaintiffs' uncontroverted evidence therefore established that the 3rd to 6th Defendants had no basis for continued use of the land.

p. 3
02

Trespass and general damages

Holding

Continued occupation of the land by the 3rd, 4th, 5th and 6th Defendants after the revocation order constituted trespass entitling the Plaintiffs to general damages

Reasoning

The court found that refusal by the 3rd to 6th Defendants to vacate since the High Court order of 1st September 2016 amounted to trespass. Although Ksh. 2 million was sought, no justification, land valuation or restoration cost was offered; the court awarded Ksh. 800,000/= as a reasonable amount in the circumstances.

p. 3

Legal principles established

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  • The measure of damages for trespass is the difference in the value of the plaintiff's property immediately after the trespass or the cost of restoration, whichever is less

Court orders

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  1. 1.A declaration that the purported sales by the 1st and 2nd Defendants to the 3rd, 4th, 5th and 6th Defendants are irregular, fraudulent and null and void
  2. 2.A permanent injunction restraining the Defendants from selling, cultivating, leasing, transferring or dealing with land reference number Kilifi/Ngerenya/303 in any way
  3. 3.The 3rd, 4th, 5th and 6th Defendants to grant vacant possession of the suit property within 45 days, failing which an order of eviction to issue, supervised by the OCS Kilifi
  4. 4.General damages of Ksh. 800,000/= awarded to the Plaintiffs, payable by all Defendants jointly and severally
  5. 5.The Plaintiffs shall have the costs of this suit

Authorities

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Cases cited (1)

  • Hoster vs Green Park Development Co.
    1986 SW 2d 500 (No. App. 1999)
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (environment and land), first-instance suit

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, "John Charo Mwaro & another v Emmanuel Katana Charo & 5 others [2021] KEELC 2127 (KLR)", Case Analysis (2021). ELC Case No. 27 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2127/eng@2021-08-31

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