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ELCPartially AllowedELC suit transferred from the High Court (plaint filed 15th November 2011)· [2022] KEELC 1185 (KLR)

Nakuru Joy Teck Enterprises v Raphael K Korir [2022] KEELC 1185 (KLR)

Environment and Land Court
28 February 2022
DOD. O. Ohungo
1,174 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered a land occupier to vacate within 90 days, holding that a registered title beats unsupported claims of fraud.

What this practically means

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Executive summary

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The plaintiff sued by plaint filed on 15th November 2011 in the High Court, later transferred to the Environment and Land Court, seeking eviction of the defendant from Njoro Ngata Block 2/3251, mesne profits of KShs 30,000 from 26th October 2011 until eviction, and costs. The plaintiff's director, Benjamin Kisoi Sila, testified that the plaintiff purchased the property from Muskie Ltd on 10th October 2011 for KShs 4,000,000, obtained the necessary consents, paid stamp duty, and received a title deed on 26th October 2011 after due diligence including a search confirming Muskie Ltd's auction purchase of the mother title. The defendant denied the claim in a statement of defence alleging the plaintiff's registration was procured fraudulently and sought cancellation, but neither the defendant nor his counsel appeared at the defence hearing, no evidence was adduced, and no submissions or counterclaim were filed. The court framed one issue: whether the plaintiff was entitled to the reliefs sought. Holding the plaintiff's case uncontroverted and proved on a balance of probabilities, the court found the plaintiff the registered proprietor entitled under Article 40 of the Constitution and Section 25 of the Land Registration Act to exclusive possession. Applying Mistry Valji v Janendra Raichand on mesne profits, and finding no evidence of area rents, the court awarded KShs 15,000 per month rather than the KShs 30,000 claimed, based on the property's size and location. Judgment was entered for the plaintiff: vacation and vacant possession within 90 days, eviction in default, mesne profits at KShs 15,000 monthly from 26th October 2011 until possession or eviction, and costs of the suit.

Key legal issues

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01

Whether the plaintiff is entitled to eviction of the defendant from the suit property

Holding

Yes. The plaintiff proved it is the registered proprietor of Njoro Ngata Block 2/3251 and the defendant's case (including fraud allegations) was unsupported by evidence; the defendant must vacate or be evicted.

Reasoning

The plaintiff testified through its director on the purchase from Muskie Ltd, transfer, Land Control Board consent, stamp duty and issuance of title on 26th October 2011. The defence closed without adducing evidence despite a hearing date given in the presence of defence counsel, and filed no submissions. The fraud claim was unsupported and no counterclaim for cancellation of title was filed. The plaintiff's registered title under Article 40 and Section 25 of the Land Registration Act carries exclusive possession, warranting eviction.

p. 2
02

Whether mesne profits at KShs 30,000 per month should be awarded

Holding

Mesne profits awarded but reduced to KShs 15,000 per month from 26th October 2011 until vacant possession or eviction, whichever is earlier.

Reasoning

Applying Mistry Valji v Janendra Raichand, mesne profits must be reasonable rent. Though the plaint did not state the frequency of the KShs 30,000, submissions clarified it was monthly. The witness said the figure came from assessing rents in the area but adduced no evidence of actual area rents, so the court could not adopt it. Considering the property's size (0.200 hectares per the title) and its location in Ngata on the outskirts of Nakuru City, KShs 15,000 per month was held reasonable.

p. 2

Legal principles established

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  • The measure of damages awarded as mesne profits must be reasonable rent, and the usual practice is to assess mesne profits down to the date possession is given (adopted from Mistry Valji v Janendra Raichand)
  • A registered proprietor is entitled to the rights and privileges under Article 40 of the Constitution and Section 25 of the Land Registration Act, including the right to exclusive possession
  • A party alleging fraudulent procurement of title must support the allegation with evidence and a counterclaim; uncontroverted allegations fail

Court orders

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  1. 1.The defendant, his agents or servants to vacate the parcel of land known as Njoro/Ngata Block 2/3251 and hand vacant possession to the plaintiff within 90 (ninety) days from the date of the judgment
  2. 2.In default of vacating within the stated period, the defendant, his agents or servants be evicted from the said parcel of land
  3. 3.The plaintiff is awarded mesne profits at KShs 15,000 per month from 26th October 2011 until the defendant gives vacant possession to the plaintiff or until date of eviction, whichever is earlier
  4. 4.The plaintiff shall have costs of this suit

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Land Registration ActSection 25

Cases cited (1)

  • Mistry Valji v Janendra Raichand & 2 others
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land (suit transferred from the High Court); claims founded on Article 40 of the Constitution of Kenya and the Land Registration Act

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, "Nakuru Joy Teck Enterprises v Raphael K Korir [2022] KEELC 1185 (KLR)", Case Analysis (2022). ELC suit transferred from the High Court (plaint filed 15th November 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1185/eng@2022-02-28

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