Nderitu & another v Muchemi (Environment & Land Case 22 of 2020) [2025] KEELC 212 (KLR)
The bottom line
#A Kenyan court awarded a property buyer Kshs 18.75 million from a former owner who stayed on after an auction sale, proving staying put can be expensive.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs' acquisition of the suit land at the public auction was impeached
The acquisition was not impeached; the Defendant, who did not attend the hearing nor prosecute his counterclaim, adduced no evidence of agency, instructions or payment of the purchase price by him and his late brother to the 1st Plaintiff
The defence and counterclaim were undefended and unprosecuted. The Defendant alleged fraud, breach of trust and professional misconduct against the 1st Plaintiff, contending he and his late brother funded the auction purchase through the 1st Plaintiff as their agent and advocate. The court found no evidence of instructions in the nature of agency or legal representation, nor any evidence of payment of the purchase price by the duo, and therefore held the acquisition unimpeached.
Whether mesne profits were proved and their quantum
Mesne profits were proved at Kshs 18,750,000/- for the period 1/4/2008 to 30/10/2020, based on a valuation report assessing market rentals using the deferred rental methodology
The court adopted the definition of mesne profits in Section 2 of the Civil Procedure Act and authorities describing mesne profits as damages for trespass. Rights and interest passed to the Plaintiffs at the fall of the hammer, so the Defendant's occupation amounted to trespass. PW2, a registered valuer, assessed market rentals at Kshs 18,875,000/- for the period, and the court was satisfied the quantum was proved.
Costs of the suit
Despite the general rule that costs follow the event, each party was ordered to bear their own costs because the suit was undefended
Costs are discretionary but ordinarily follow the event under the proviso to Section 27 of the Civil Procedure Act. The court noted the suit was filed after the Defendant's adamant refusal to vacate, but since the suit was undefended, it exercised its discretion to direct each party to bear their own costs.
Legal principles established
#- Mesne profits are damages for trespass, being the profits a person wrongfully deprived of property is entitled to for the period of wrongful occupation
- Where property passes at the fall of the hammer in a lawful public auction, occupation thereafter by the former owner amounts to trespass attracting mesne profits
- Costs follow the event under the proviso to Section 27 of the Civil Procedure Act, but the court retains discretion to direct otherwise for good reason
Court orders
#- 1.The sum of Kshs 18,750,000/- being mesne profits for the period from 1/4/2008 to 30/10/2020 granted in favour of the Plaintiffs
- 2.Interest on the above at court rates from 11/10/2020 until payment in full
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land situate in Kiambu County (Land Reference Number 7022/32); no specific constitutional or statutory provision invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Nderitu & another v Muchemi (Environment & Land Case 22 of 2020) [2025] KEELC 212 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/212/eng@2025-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.