Githunguri & 2 others v Boro (Environment & Land Case 255 of 2011) [2022] KEELC 31 (KLR)
The bottom line
#A Nairobi landowner won eviction of a long-staying occupier, but lost compensation for unpaid rent because the claim was never specifically pleaded and proved.
What this practically means
#Executive summary
#Key legal issues
#Effect of an un-set-aside consent order on subsequent claims to the suit property
The consent order of 28th January, 2000 in HCCC No. 1519 of 1993 determined all questions of proprietorship and, not having been set aside, extinguished any purported purchase of the property by the Defendant
The court found that the Defendant had challenged the consent and the sub-divisions but that any variation or setting aside could only occur in that suit. The consent order of 3rd July, 2000 cancelled any purported purchase made between 1990 and 1996, leaving the Defendant with no known claim over the suit property.
Plaintiffs' entitlement to vacant possession and eviction
As registered owners of L.R No. 398/19 following the sub-division, the Plaintiffs are entitled to vacant possession and the Defendant, in occupation without permission, ought to be evicted
It was undisputed that L.R No. 398/19 was registered in the Plaintiffs' names and there was no evidence of any purchase after sub-division and registration. Ownership carries the right to vacant possession, necessitating eviction of the Defendant.
Whether mesne profits were payable
The claim failed for want of specific pleading and proof; the basis for computation was not stated and no evidence of the rent was led
Order 21 Rule 13 of the Civil Procedure Rules and Section 2 of the Civil Procedure Act define mesne profits, but as a special damages claim it had to be specifically pleaded and proved. The Plaintiffs pleaded no sum and gave no evidence of the rent the Defendant was paying, so the claim was unavailable.
Consequence of the Defendant's failure to adduce evidence
The Defendant's pleadings, including the counterclaim, remained mere allegations; the counterclaim was dismissed for want of prosecution when he failed to attend court
Following Charterhouse Bank Ltd v Frank N. Kamau, averments are not evidence, but the plaintiff's burden was unaffected. The Defendant's counterclaim, having been dismissed for want of prosecution, meant his bona fide purchaser claim fell away.
Legal principles established
#- Pleadings are not evidence; in the absence of evidence, a party's pleadings remain mere allegations on which no decision can be founded
- A defendant's failure to adduce evidence does not lessen the plaintiff's burden to prove its case on a balance of probabilities, though it is fatal to the counterclaim
- A claim for mesne profits is in the nature of special damages and must be specifically pleaded and proved
Court orders
#- 1.The Defendant be and is hereby directed to give vacant possession of LR. No. 398/19 to the Plaintiffs within 30 days from the date hereof, failure of which eviction orders to issue
- 2.The Defendant to pay the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution and the Environment and Land Court Act (suit for eviction and mesne profits filed pursuant to directions in HCCC No. 1519 of 1993)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githunguri & 2 others v Boro (Environment & Land Case 255 of 2011) [2022] KEELC 31 (KLR)", Case Analysis (2022). Elc Case (to be inserted by registry). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/31/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.