Gitau v Kenje Winston Company Limited (Environment and Land Case Civil Suit 131 of 2007) [2022] KEELC 3014 (KLR)

The court held that an unchallenged claim is not automatic and the Defendant had to discharge the burden of proof. The Defendant produced a sale agreement dated 15th May 1996 between the Plaintiff and Clement Benson Gachanja (deceased) at Kshs.2.7 million, evidence of full payment into the Plaintiff's bank account, and the Plaintiff's signed transfer of December 1996. The term 'purchaser' included assignees and heirs, and the deceased elected to transfer the property to the Defendant. Registration under Section 26 of the Land Registration Act is prima facie evidence of proprietorship.

The sale agreement obligated the vendor to give vacant possession upon completion. Although the Plaintiff transferred the property to the purchaser's assignee (the Defendant) in December 1996, he failed to give vacant possession, instead erecting commercial shops and remaining in occupation for over 20 years while retaining the purchase price. His occupation was uncontroverted, amounting to breach of contract and violation of the Defendant's proprietary rights.

The Defendant suggested Kshs.6,750,000/- calculated as a conservative 10% annual return on the Kshs.2.7 million purchase price. The court noted that the Plaintiff had used the land for over 20 years and that the Defendant must have suffered loss it could not quantify, found the suggested figure reasonable, and awarded it as general damages for breach of contract.

The court accepted the Defendant's submission under Order 21 Rule 13 of the Civil Procedure Rules that mesne profits are difficult to assess while the Defendant is not in possession. Since it was not in dispute that the Defendant was not in possession, the court saw no reason to deny the Defendant the opportunity to adduce further evidence and have mesne profits assessed once it has recovered possession.