Susan Wambui Gitonga v Registered Trustees PCEA Church Bibilioni Limuru & 3 others [2021] KEELC 3149 (KLR)

The Plaintiff produced a Certificate of Lease, the sale agreement of 25th November 2005 and an official search confirming registration on 8th October 2010. Her evidence was uncontroverted since the Defendants, though they filed a defence, adduced no evidence at the ex parte hearing. No evidence impugned her title, so under sections 24, 25 and 26 of the Land Registration Act her registration conferred absolute ownership free from other claims.

The Defendants admitted in their pleadings that they entered the suit property in 2002 and erected structures. The Plaintiff was the registered proprietor from October 2010 and entitled to exclusive possession. Entry without her authority or any justifiable cause therefore amounted to trespass, as corroborated by the Defendants' own pleadings and photographs in evidence.

Following Park Towers and Philip Aluchio, damages for trespass are awardable without proof of specific loss, but the measure is the diminished value of the property or restoration cost, whichever is less. The Plaintiff did not lead evidence of the land's value before the trespass, so only a nominal figure of Kshs.200,000/= was appropriate. The claimed Kshs.380,000/= for crops failed for want of specific pleading and proof.

Although the Defendants filed a statement of defence, they did not attend the hearing despite service, and the matter proceeded ex parte. Averments in pleadings are not evidence, so their defence remained mere allegations. However, uncontroverted evidence is not automatic proof, and the court independently assessed whether the Plaintiff discharged her burden under sections 107 and 108 of the Evidence Act.

The Defendants claimed they purchased the plot in 2002 and were entitled to it by prescriptive rights, alleging the plaintiff held it in trust. The court noted their own pleading showed the vendor breached the contract by failing to transfer parcel 161; the remedy was specific performance against the vendor, a matter of privity between them and the vendor. They adduced no evidence, and the defence failed.