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ELCDismissedCivil Suit No. 914 of 2012· [2021] KEELC 2877 (KLR)

Harrow Investment Limited v Harbajan Singh Sembi [2021] KEELC 2877 (KLR)

High Court of Kenya
15 June 2021
5,029 words in judgment
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The bottom line

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The High Court dismissed a landowner's claim because it never proved trespass, distress, or damages against the defendant, who was shown not to occupy the land.

What this practically means

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Executive summary

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The plaintiff, Harrow Investment Limited, sued the defendant claiming a declaration of entitlement to quiet possession of Eldoret Municipality Block 15/323, a declaration that the defendant's distress for rent was illegal, a permanent injunction against trespass, mesne profits and costs. The plaintiff's case was that it bought the suit property from Rural Housing Estates Limited in December 2002, though transfer of the title was yet to be completed, and relied on a prior judgment in Eldoret HCCC No. 124 of 1998. The defendant denied the claims, asserting he purchased about 4 acres of L.R. No. 775/1 from Malakwen Arap Sisiwa in 1991 and has been in occupation since. The defendant also objected that the suit was filed without company resolutions authorising the verifying affidavit and the advocates. The court first held that the absence of the resolutions was a curable defect that did not invalidate the suit, the resolutions having been filed subsequently. On the merits, the court found that the plaintiff failed to plead and prove the distress for rent, trespass and mesne profits; parties are bound by their pleadings and evidence at variance with them must be disregarded. A County Surveyor's report, undisputed by either party, established that the defendant did not occupy any part of the disputed parcel, so no cause of action arose and no injunction could issue absent a proved wrong. Mesne profits, being special damage, were neither specifically pleaded nor proved, and the judgment in HCCC No. 124 of 1998 did not bind these parties. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Whether a suit filed without a company resolution authorising the verifying affidavit and appointment of advocates is a nullity

Holding

The suit is not invalidated; the defect is curable and was cured by the subsequent filing of the resolutions

Reasoning

Relying on Assia Pharmaceuticals, Microsoft Corporation v Mitsumi Computer Garage, Republic v Registrar General and Space Geo Enterprises, the court held that proceedings commenced without authority may be ratified, the resolution may be filed any time before the suit is fixed for hearing, and procedural lapses not going to jurisdiction or causing fundamental prejudice should not nullify the suit.

p. 5
02

Whether the plaintiff proved entitlement to quiet possession and a permanent injunction

Holding

The claim failed; the plaintiff pleaded no particulars of any wrong by the defendant and the uncontroverted County Surveyor's report showed the defendant was not in occupation of the suit land

Reasoning

The plaint contained only introductory averments with no particulars of harm. The survey report established the defendant occupied none of the disputed parcel. Without pleaded acts or omissions by the defendant and without proof of trespass, no cause of action arose and no injunction could issue in vain.

p. 6
03

Whether the plaintiff proved illegal distress for rent by the defendant

Holding

The claim failed; distress for rent was not specifically pleaded or proved and the alleged proclamation notice was not produced

Reasoning

Both parties admitted no lease agreement existed and the defendant never levied distress. The proclamation notice allegedly issued by Jomuki Auctioneers, who were neither sued nor called as witnesses, was not produced in evidence to show it was issued at the defendant's instruction.

p. 6
04

Whether the plaintiff was entitled to mesne profits

Holding

No; mesne profits are special damage which must be specifically pleaded and proved, and the plaintiff did neither

Reasoning

Apart from mentioning mesne profits in the final prayers, the plaintiff did not specifically plead it or lead documentary evidence quantifying the loss during the alleged trespass. Following Chief Land Registrar v Nathan Tirop Koech and Micheal J C K Kapsot v Kotut arap Too, the limb failed.

p. 7
05

Whether the judgment in Eldoret HCCC No. 124 of 1998 bound this suit

Holding

It did not; that case was between different parties

Reasoning

The plaintiff relied on the earlier judgment in Rural Housing Estates Limited v Edward Koech & 3 Others, but neither the plaintiff nor the defendant was a party to it. A determination binds only the parties before the court in that case and cannot be applied to strangers to it.

p. 7

Legal principles established

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  • Parties are bound by their pleadings and evidence at variance with the pleadings must be disregarded
  • Failure to file a company resolution with the plaint does not invalidate the suit; such a resolution may be filed any time before the suit is fixed for hearing
  • Mesne profits are a special damage which must be specifically pleaded and proved
  • A remedy cannot issue in the absence of a proved wrong

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the defendant

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Civil Procedure Rules, 2010Order 4 rule 1(4)
  • Civil Procedure Rules, 2010Order 21 Rule 13

Cases cited (18)

  • Assia Pharmaceuticals vs. Nairobi Veterinary Centre Ltd
    Nairobi (Milimani) HCCC No. 391 of 2000
  • Microsoft Corporation vs. Mitsumi Computer Garage Ltd & Another
    [2001] KLR 470; [2001] 2 EA 460
  • Republic v. Registrar General and 13 Others
    [2005] eKLR
  • Space Geo Enterprises Limited vs. Kenya National Highways Authority
    [2019] eKLR
  • Leo Investments Ltd vs. Trident Insurance Co. Ltd
    (2014) eKLR
  • East Africa Safari Air Ltd vs. Antony Ambaka Kegodre & Another
    (2011) eKLR
  • Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others
    (2014) eKLR
  • Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC
    SC 91/2002
  • Ahmed Ibrahim Suleiman and Another vs. Noor Khamisi Surur
    (2013) eKLR
  • Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah
    [2010] eKLR
  • Duncan Nderitu Ndegwa v. KP& LC Limited & Another
    (2013) eKLR
  • Kenya Power and Lighting Company Limited =VS= Sheriff Molana Habib
    Malindi HCCA No. 24 of 2016
  • Kiboit Kosgei Chepsaigut vs Cheruiyot Kimetto & Another
    Eldoret ELC No. 213 of 2012
  • Fredrick Korir =VS= Soin United Women Group
    Kericho ELC No. 104 of 2017
  • Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others
    [2018] eKLR
  • Peter Mwangi Mbuthia & another vs. Samow Edin Osman
    [2014] eKLR
  • Micheal J C K Kapsot v Kotut arap Too
    [2020] eKLR
  • Rural Housing Estates Limited vs Edward Koech & 3 Others
    Eldoret HCCC No. 124 of 1998
Jurisdiction invoked
Original civil jurisdiction of the High Court over a claim relating to land

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, "Harrow Investment Limited v Harbajan Singh Sembi [2021] KEELC 2877 (KLR)", Case Analysis (2021). Civil Suit No. 914 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2877/eng@2021-06-15

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