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ELCAllowedAppeal from CMCC No 353 of 2018 (formerly ELC No 892 of 2015, formerly Nairobi HCCC No 479 of 1998)· [2024] KEELC 5653 (KLR)

Kiambati (Suing on His Behalf and the Estate of Salome Wangui Kiambati Deceased) v Mangare (Suing on Behalf of the Estate of Stephen Karanjan - Deceased) & another (Environment and Land Appeal E072 of 2022) [2024] KEELC 5653 (KLR)

Environment and Land Court
30 July 2024
3,990 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court awarded a man nearly Kshs 1 million because he was evicted under court orders meant for someone else.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Thika against the judgment of the trial magistrates' court delivered on 27/7/2022, which had dismissed a claim for special damages of Kshs 633,600/- and general damages for wrongful eviction and demolition of houses on parcel Limuru/Kamirithu/380 on 30/8/1995. The dispute was between second-generation litigants whose parents had fought over the land since 1983. The trial court had found the Plaintiffs failed to prove the 2nd Respondent participated in the eviction and had also nullified the claims of the estates for want of letters of administration. On appeal, J G Kemei J held that grants of administration existed for both estates and the locus issue had been settled in a Ruling of 31/5/2017 and never challenged, so the Plaintiffs were properly before the court. On liability, the court found the eviction orders of 13/3/1986 targeted only Serah Mondo, not the Plaintiffs, making the eviction wrongful and without justifiable cause. The 2nd Respondent admitted in re-examination that 'We executed the eviction in 1995', and as a beneficiary of the suit land under the confirmation of grant of 1/4/1985 he had an interest in the eviction. The appeal was allowed: the trial judgment was set aside, judgment entered as prayed in the plaint, special damages of Kshs 633,000/- and general damages of Kshs 350,000/- awarded, with costs of the suit and appeal to the Appellant.

Key legal issues

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01

Whether the Plaintiffs in the trial court had locus standi

Holding

The Plaintiffs were properly before the Court; grants of letters of administration were issued in respect of both estates and the issue had been settled in the Ruling of 31/5/17 and never challenged.

Reasoning

The trial court had dismissed the claims of the estates for want of representation, but the record showed grants issued on 22/4/2010 in the estate of Salome Wangui and on 8/11/2007 in the estate of Stephen Karanja Kiambati. The locus issue had already been canvassed in prior proceedings culminating in the Ruling of 31/5/17 and was never challenged by the Respondents. The appellate court therefore found the trial court erred in nullifying the claims.

p. 6
02

Whether the 2nd Respondent was liable for the eviction and demolition

Holding

Yes. In re-examination the 2nd Respondent admitted executing the eviction; even if absent, he approved the demolition and stood to benefit as co-owner of the suit land.

Reasoning

The eviction orders targeted only Serah Mondo, not the Plaintiffs, making the eviction wrongful. The 2nd Respondent's re-examination admission ('We executed the eviction in 1995') established involvement. He had been allocated the suit land via the confirmation of grant dated 1/4/1985 and title issued 24/1/1986, so he had an interest in evicting the Plaintiffs to take over the land.

p. 7
03

Quantum of damages

Holding

General damages of Kshs 350,000/- awarded for the arbitrary eviction and demolition; special damages of Kshs 633,000/- allowed as pleaded, proved and unchallenged.

Reasoning

The Appellant was evicted without basis in law and houses were demolished arbitrarily, but he rebuilt on the land afterwards, informing the general damages award. A valuation report dated 11/10/1995 quantifying reinstatement costs was not challenged by the 2nd Respondent and was therefore taken as believable.

p. 7

Legal principles established

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  • A first appellate court must re-evaluate, reassess and re-analyze the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
  • A party who files suit on behalf of the estate of a deceased person must first obtain letters of administration.
  • Eviction executed pursuant to court orders directed at a third party is wrongful and without justifiable cause as against persons not named in the orders.

Court orders

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  1. 1.The appeal be and is hereby allowed
  2. 2.The Judgment of the lower Court dated the 27/7/22 be set aside and Judgement is entered as prayed in the plaint
  3. 3.Special damages in the sum of Kshs 633,000/- is allowed
  4. 4.General damages in the sum of Kshs 350,000/- is awarded
  5. 5.Costs of the suit in the trial Court and on appeal is in favour of the Appellant
On appeal from
Magistrates' Court (trial Court)
CMCC No 353 of 2018
Jurisdiction invoked
First appellate jurisdiction under Section 78 of the Civil Procedure Act over the trial court's judgment

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, "Kiambati (Suing on His Behalf and the Estate of Salome Wangui Kiambati Deceased) v Mangare (Suing on Behalf of the Estate of Stephen Karanjan - Deceased) & another (Environment and Land Appeal E072 of 2022) [2024] KEELC 5653 (KLR)", Case Analysis (2024). Appeal from CMCC No 353 of 2018 (formerly ELC No 892 of 2015, formerly Nairobi HCCC No 479 of 1998). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5653/eng@2024-07-30

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