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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 212 (KLR)

Nderitu & another v Muchemi (Environment & Land Case 22 of 2020) [2025] KEELC 212 (KLR)

Environment and Land Court
24 January 2025
3,444 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs, a senior counsel and his wife, sued for eviction of the Defendant from Land Reference Number 7022/32 in Kiambu County and for mesne profits, alleging they purchased the land at a public auction on 25/3/2008 conducted on behalf of National Bank of Kenya Limited under its statutory power of sale, emerging highest bidders at Kshs 8,650,000/-. The Defendant, the former registered owner and mortgagor, filed a defence and counterclaim alleging that he and his late brother Juma Muchemi had entrusted funds to the 1st Plaintiff, then their lawyer and friend, to buy the property on their behalf, and that the 1st Plaintiff fraudulently acquired it in his own name. He sought a declaration that he was the rightful owner and cancellation of the Plaintiffs' documents. The Defendant did not attend the hearing despite service, and his defence and counterclaim went undefended and unprosecuted. The court found the acquisition by the Plaintiffs unimpeached, there being no evidence of agency, instructions or payment by the Defendant and his brother. The eviction issue had already been resolved in the Plaintiffs' favour by a ruling of 15/10/2020. On mesne profits, the court applied the definition in Section 2 of the Civil Procedure Act and authorities treating mesne profits as damages for trespass, accepted a valuation report assessing market rentals at Kshs 18,875,000/- for the period 1/4/2008 to 30/10/2020, and awarded Kshs 18,750,000/- with interest at court rates from 11/10/2020. Despite the Plaintiffs' success, the court, noting the suit was undefended, directed each party to bear their own costs. The judgment contains material internal date and quantum discrepancies.

Key legal issues

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01

Whether the Plaintiffs' acquisition of the suit land at the public auction was impeached

Holding

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

Reasoning

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.

p. 5
02

Whether mesne profits were proved and their quantum

Holding

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

Reasoning

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.

p. 7
03

Costs of the suit

Holding

Despite the general rule that costs follow the event, each party was ordered to bear their own costs because the suit was undefended

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 2.Interest on the above at court rates from 11/10/2020 until payment in full
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Land Registration ActSection 152E(1)
  • Civil Procedure Act (Cap. 21)Section 2 (definition of mesne profits); Section 27 (costs)
  • Civil Procedure RulesOrder 21 Rule 13

Cases cited (4)

  • Attorney General vs. Halal Meat Products Limited
    [2016] eKLR
  • Bolori vs Ofiorke
    [2010] LPELR – 3886 [CA]
  • Osawaru vs Ezeiruka
    [1978] NSCC [Vol. 11] 390
  • Bramwell vs. Bramwell
    [1942] 1 K.B. 370: [1942] 1 ALL ELR. 137
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.