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ELCPartially AllowedElc Case (to be inserted by registry)· [2022] KEELC 31 (KLR)

Githunguri & 2 others v Boro (Environment & Land Case 255 of 2011) [2022] KEELC 31 (KLR)

Environment and Land Court
28 April 2022
4,463 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiffs, administrators of the estate of the late Mugacha Thaara, sued the Defendant for eviction from L.R No. 398/19 and mesne profits. The property originated from L.R No. 398/10-Naivasha, co-owned by four proprietors, which was leased to the Defendant for three years from 1st March 1981. After the lease expired, the Defendant refused to vacate and filed HCCC No. 1519 of 1993 claiming to be a bona fide purchaser. That suit was compromised by a consent order of 28th January, 2000 directing the partition of the land into four portions registered to the four proprietors or their administrators, with liberty to negotiate sales. Following the sub-division and registration of L.R No. 398/19 in the Plaintiffs' names, notices to vacate were ignored, and an earlier attempt at eviction in HCCC No. 1519 of 1993 was refused on the ground that the consent decree lacked an eviction order, with directions to file a fresh suit - hence this action. The Defendant, who pleaded an irrevocable option to purchase and payments to the deceased's family, never attended the hearing; his counterclaim was dismissed for want of prosecution. The court applied Charterhouse Bank Ltd v Frank N. Kamau on pleadings versus evidence and burden of proof, held that the un-set-aside consent order extinguished any purported purchase, and found the Plaintiffs to be the registered owners entitled to vacant possession. However, the mesne profits claim failed for want of specific pleading and proof. The Defendant was ordered to give vacant possession within 30 days, failing which eviction would issue, and to pay the Plaintiffs' costs.

Key legal issues

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01

Effect of an un-set-aside consent order on subsequent claims to the suit property

Holding

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

Reasoning

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.

p. 7
02

Plaintiffs' entitlement to vacant possession and eviction

Holding

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

Reasoning

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.

p. 7
03

Whether mesne profits were payable

Holding

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

Reasoning

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.

p. 8
04

Consequence of the Defendant's failure to adduce evidence

Holding

The Defendant's pleadings, including the counterclaim, remained mere allegations; the counterclaim was dismissed for want of prosecution when he failed to attend court

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.The Defendant to pay the costs of the suit

Authorities

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Legislation

  • Evidence ActSection 3; Sections 107 and 109
  • Civil Procedure RulesOrder 21 Rule 13
  • Civil Procedure ActSection 2 (definition of mesne profits)

Cases cited (4)

  • Charterhouse Bank Limited (Under Statutory Management) vs Frank N. Kamau
    [2016] eKLR
  • CMC Aviation Ltd v Crusair Ltd (No1)
    [1987] KLR 103
  • Attorney General vs Halal Meat Products Limited
    [2016] eKLR
  • Peter Mwangi Mbuthia & another vs Samow Edin Osman
    [2014] eKLR
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

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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, "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.