Kinyuanjui v Embakasi Ranching Company Limited

the locality of map 7, Embakasi Ranching company Limited , Ruai , Nairobi acceptable to the Plainti. ii. In the alternative an order that the defendant compensates the Plainti with the current value of Ksh 5, 500,000 each for the dispossessed 4 plots totaling to the sum of Ksh 22, 000,000/=. iii. Exemplary damages. iv. Costs of the suit plus interest thereon. v. Any other further relief that the court deems t. 6. The Defendants were duly served with all relevant pleadings and failed to enter appearance and le their statement of defence. The matter proceeded for formal proof. 7. The Plainti testied in court on 25th April 2023 and relied on her witness statement dated 18th September, 2014 in which she told the court that she had purchased the suit properties herein in 1989 from one David Kiarie Gatororto who was a shareholder of the Defendant. She said that by dint of having purchased two plots she was entitled to two bonus plots. She was allocated the four plots herein and she put up beacons. She informed the court that the sale was formalized vide a sale agreement dated 22nd September 1989. 8. She stated that she visited the suit properties to nd that unbeknown to her, the suit properties had been unlawfully allocated to third parties. She referred the court to the list of documents and asked the court to grant the mandatory order sought or in the alternative order compensation in accordance to the valuation report. 9. PW2 who is a licensed valuer relied on his witness statement and produced a valuation report he prepared on the instructions of the Plainti. It was his evidence that a quarter acre plot in the area is valued at Kshs 5,500,000 hence the four plots are valued at Ksh 22,00,000. 10. Counsel for the Plainti submitted that the plainti has established that the Plainti had legally acquired ownership to the properties herein. He further submitted that the defendant had unlawfully passed possession of the Plainti’s properties to 3rd parties. He urged the court to compensate the Plainti as per the valuers report dated 15th November 2022. He stressed that the Plaintis testimony was uncontroverted as held in the case of Shaneebal Limited v County Government of Machakos (2018). 11. The Defendant did not enter appearance or le a statement of defence. The case of Daniel Kenga Katana & 4 others v Dzitu Toto Bokole & 3 others [2022] eKLR addressed the issue of uncontroverted evidence. The learned Judge stated; “The issue that the court has to deal with is whether the Plainti discharged the burden of proof. The Plainti gave evidence to proof ownership of the suit land by adducing oral and documentary evidence which was uncontroverted. It is trite that uncontroverted evidence is weighty and courts will rely on it to prove facts in dispute. The evidence cannot be controverted by allegations in the statement of defence if the defendants fail to call a witness to adduce evidence and be cross-examined to test the evidence.” He restated the quote by Justice Mwongo in Peter Ngigi & Another (suing as legal representative of the Estate of Joan Wambui Ngigi) v Thomas Ondiki Oduor & Another 2019 eKLR wherein he stated “The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20695/eng@2023-10-05 2

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12. Although the Plaintis case was unchallenged and uncontroverted, the Plainti still has to discharge the burden of proof as envisaged by Sections 107 and 108 of the Evidence Act which dene the Burden of Proof thus; 107. Burden of proof (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. Incidence of burden The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 13. In the case of Kenya Power & Lighting Company Limited v Nathan Karanja Gachoka & Another [2016] eKLR, the Court stated “I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plainti must prove its case too upon a balance of probability whether the evidence is unchallenged or not.’ The same sentiments have been echoed in the case of Gichinga Kibutha v Carooline Nduku [2018] eKLR “It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.’’ 14. The Plainti produced both oral evidence and documentary evidence in which she told the court that she had entered into a sale agreement for the suit properties herein. Regarding the property P2064, the Plainti produced a letter of authority by one Kimani Goro who acted for the owner of the shares David Kiarie Gatoroto. She produced a copy of the identication card for David Kiarie Gatoroto and the share certicate in his name. She further produced documents by the Defendant acknowledging various payments for both P2064 and the bonus P2064B. In the absence of any contrary testimony by the Defendant I nd that the Plainti has proved that she has sucient interest in P0264 and P0264B. 15. Regarding the Plot number P460, I note that the share certicate was in the name of Makumi Mugo. The Plainti does not give any explanation how it passed to her. There is no attempt to prove any connection between Makumi Mugo and David Gatoroto and the Plainti. Further the Plainti does not have any documentation from the said Makumi Mugo such as his Identication card which would have corroborated her testimony. I therefore nd that ownership of this plot and the bonus has not been suciently proved. 16. Having considered the foregoing, Judgement is entered for the Plainti against the Defendant as follows; a. An order of mandatory injunction is issued to compel the defendant to put the plainti in actual and physical possession of plots NO P2064, P2064B, within map 7, Embakasi Ranching Company Limited Ruai, Nairobi or in the alternative re-allocate the Plainti with suitable plots within the locality of map 7, Embakasi Ranching company Limited , Ruai , Nairobi acceptable to the plainti within 120 days https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20695/eng@2023-10-05 3

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b. If the Defendant fails to carry out (a) within the stated period, an order is issued that the defendant compensates the plainti with the current value of Ksh 5, 500,000 each for the dispossessed 2 plots totaling to the sum of Ksh 11, 000,000/=. c. Costs of the suit plus interest thereon. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 5TH DAY OF OCTOBER 2023. JUDY OMANGE JUDGE In the presence of: Mr. Abuga for Mr. Maina for Plainti Steve - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20695/eng@2023-10-05 4

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