Kimiti v Muchiri & another

instructed the Police Ocers to evict the Defendants from the premises on both occasions. He avers that he resumed construction on the plots but has had to hire sucient security to prevent further invasions by the Defendants. 4. The Plainti asserts that he has suered damages due to the said invasions and the endless cycle of vexatious disputes. That is what necessitated the ling of the Plaint. 5. From the court record, on 29th November, 2012, the Defendants instructed the rm of Kurauka & Co. Advocates who led a Notice of Appointment. The 1st Defendant apparently passed on sometimes in February 2012. On numerous occasions, the Defendant’s counsel sought leave to le the 2nd Defendant’s pleadings and documents. Despite leave being granted, the 2nd Defendant never complied. The Advocate at one point led an application to cease from acting for the 2nd Defendant, he however the withdrew the said application. 6. The latest application by the 2nd Defendant’s Counsel to cease from acting is dated 4th April, 2022, the court directed that the application be served be way of substituted service by advertisement in one of the dailies. Counsel did not comply despite being granted ample time to do so. On 20th June, 2023, the court marked the application as dispensed with and certied the matter ready for hearing. 7. Counsel for the 2nd Defendant on numerous occasions also sought court’s indulgence to conrm the status of the suit properties in view of the issuance of titles after the plots were surveyed. Counsel however never led a search despite having the sought leave since 2011. On the hearing date, the court declined to indulge the 2nd Defendant’s counsel time allegedly to conrm the status of the suit properties having aorded him adequate time previously. Evidence adduced by the Plainti 8. The Plainti, Nixon Mwai Kimiti testied as PW1 in support of his case. He adopted his Witness Statement dated the 20th November, 2012 and the Further Statement dated 22nd April, 2023 as his evidence in-chief. The Plainti also produced documents in his List of documents dated 20th November, 2012. The documents were produced as exhibits and marked as PE 1-7 in the order in which they are listed. 9. PW 1 testied that he is in possession of the two plots being 218 and 219 and has developed them. He stated that the said plots have now been registered as LR No. Nairobi Block 169/ 1018 and Nairobi Block 169/9993 respectively. He is now the registered proprietor of the suit properties. 10. A copy of the title for Nairobi/Block 169/1018 was produced as an exhibit in court. He informed the court that he had returned the other title for rectication upon realizing his National Identication Card was captured erroneously. He therefore seeks orders of permanent injunction against the Defendants to stop them from interfering with his properties. Court’s directions 11. The court directed the Plainti to le written submissions. The Plainti complied and led his submissions dated 23rd October, 2023. The Court has had a chance to read through the submissions and shall consider them in its decision. Issues for Determination 12. The following issues emerge for determination: i) Whether the Plainti is the registered proprietor of the suit property(s); https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21745/eng@2023-11-23 2

page 2 of 6

ii) Whether the Defendants have trespassed onto the suit properties; iii) Whether the Plainti is entitled to the reliefs sought. Analysis and determination A. Whether the Plainti is the registered proprietor of the suit property 13. Although the suit was undefended, the Plainti still had a duty to prove his case on a balance of probabilities as is required by the law. 14. In the case of Kirugi and Another v Kabiya & 3 others (1987) KLR 347 the Court of Appeal held that; “ The burden was always on the Plainti to prove his case on a balance of probabilities even if the case was heard as formal proof. Likewise, failure by the Defendant to contest the case does not absolve a plainti of the duty to prove the case to the required standard.” 15. Similarly, in the case of Gichinga Kibutha v Caroline Nduku (2018) eKLR the Court held that: “ It is not automatic that instances where the evidence is not controverted the Claimant 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.” 16. The Plainti testied that he is the registered owner of the suit properties. From his statements adopted herein, the Plainti avers that he purchased Plots Number 218 and 219- Mutarakwa Road Jua Kali, Kariobangi South from their previous owners, Mary Wanjiru and Charles Kibathi respectively. He produced Letters of Allotment and Beacon Certicates in the names of the previous owners, an area map conrming the location of the property, a Letter dated 25th June, 2012 from the then City Council of Nairobi conrming ownership of the plots by the previous owners and the subsequent transfer to him (the Plainti). 17. It was his testimony that the said plots have since been formally registered and titles issued. The Plot Numbers, 218 and 219 are now registered as LR No. Nairobi Block 169/1018 and Nairobi Block 169/9993 respectively. The Plainti is the registered proprietor thereof. He showed and adduced in court a copy of the title for Nairobi/ Block 169/1018. He informed the court that he returned the other title for rectication upon realizing that the National Identication Card indicated therein was erroneous. 18. The law is clear on the position of a holder of a title in respect to land. Section 24(a) of the Land Registration Act provides that: “ Subject to this act the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all the rights and privileges belonging or apparent thereto.” 19. Section 25 (1) of the said Act further provides that: “ the rights of a proprietor, whether acquired on rst registration or subsequently for valuable consideration or by an order of the court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21745/eng@2023-11-23 3

page 3 of 6

appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject to any lawful encumbrances, set out in this section.” 20. Section 26(1) of the Land Registration Act on the other hand provides as follows: “ The certicate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer shall be taken by all the courts as prima facie evidence that the person named as the proprietor of the land is absolute and indefeasible owner and the title of that proprietor shall not be subject to challenge except: a) On the ground of fraud or misrepresentation to which the person is proved to be a party or: b) Where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 21. The Plainti has proved that he indeed is the registered owner of the suit properties and therefore, the rightful owner having acquired them lawfully from their previous owners. 22. The Defendant has not demonstrated any lawful claim to the suit properties whatsoever. The plainti is therefore entitled to protection of the said titles as provided for under the Land Registration Act No. 3 of 2012. Additionally, Article 40 of the Constitution guarantees the property rights of every person. It further provides under Article 40(3) that: “ No person shall be deprived of property or of any interest in or right over property of any description without prompt and just compensation being made to the person deprived of the property” b. Whether the Defendant has trespassed onto the suit properties; 23. The Plainti testied that the defendant invaded the suit properties twice disrupting the construction he had begun and for a time prevented him from carrying out any meaningful development. The Plainti produced a letter from the City Planning Department of the then City Council of Nairobi to support his claim. The Plainti also adduced a letter from the Provincial Commissioner Nairobi Area conrming that he reported a case of criminal gangs interfering with his plots No.218 and 219. The Letter from the Chairman of Kariobangi South Elders too shows that the Plainti complained of unlawful eviction by the Defendant herein. 24. In the case of Nyangeri Obiye Thomas –vs- Yunuke Sakagwa Nyoiza ELC Case No.277 of 2018, Okong’o J observed as follows: “ Clerk & Lindsell on Torts 18th Edition at paragraph 18-01 denes trespass as follows: “ ‘Any unjustiable intrusion by one person upon land in possession of another.’ …. Trespass is actionable at the instance of the person in possession and that proof of ownership is prima facie proof of possession.’” 25. From the evidence on record, it is my nding that the Plainti has proved that the defendant has interfered with his quiet and peaceful possession of the suit properties. This amounts to trespass to land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21745/eng@2023-11-23 4

page 4 of 6

c. Whether the Plainti is entitled to the reliefs sought. 26. Regarding the third issue as to whether the Plainti is entitled to the reliefs sought, the Plainti seeks a permanent injunction against the Defendant. Having established that he is the proprietor of the suit properties, the plainti is entitled to a permanent injunction against the defendant. 27. The plainti also sought for general damages for trespass from the defendant. The plainti has proved on a balance of probabilities that the defendant trespassed on part of his parcels of land and is therefore entitled to general damages. The question that arises is: what is the measure of general damages? This question was answered by E. Obaga J in the case of Philip Ayaya Aluchio vs Crispinus Ngayo [2014] eKLR where he held as follows: “ The plainti is entitled to general damages for trespass. The issue which arises is as to what is the measure of such damage? It has been held that the measure of damages for trespass is the dierence in the value of the plainti’s property immediately after the trespass or the costs of restoration, whichever is less See Hostler vGreen Park Development Co. 986 S. W 2d 500 (No. App. 1999).” 28. In the case of Willesden Investments Limited vs. Kenya Hotel properties limited NBI H.C.C. NO. 367 of 2000 the court stated that: “ There is no mathematical or scientic formula in these types of cases and that the guiding factors are the circumstances in each case.” 29. In the instant suit, the Plainti prays for a sum of Kshs.3,000,000/= on the basis that the invasion by the Defendant prevented him from constructing a house he had commenced. The Plainti has had to live in a rented house during the pendency of the suit despite being a person living with disabilities and a former employee of the British Army. The Plainti did not adduce evidence to support this claim to help the court in arriving at a reasonable gure for general damages. 30. In the circumstances the court can only award nominal damages. The court nds that an award of Kshs.500,000/= as the nominal award of general damages will suce. The same shall attract interest at court rates from the date of this judgement until payment in full. 31. The upshot is that the Plainti has proved his case on a balance of probabilities. I therefore enter judgment for the Plainti against the Defendant and make the following nal orders: a. A permanent injunction be and is hereby issued restraining the Defendants, their agents and/ or servants from trespassing into the suit property Plots Nos. 218 and 219 Mutarakwa road, Jua Kali, Kariobangi South within Nairobi County also known as LR No. Nairobi Block 169/ 1018 and Nairobi Block 169/9993 respectively, by entering therein and/ or in any other manner whatsoever interfering with the Plainti’s quiet and peaceful possession thereof, harassing or intimidating the Plainti in any manner whatsoever. b. The Defendant to pay the Plainti Kshs.500,000/= as general damages for trespass with interest at court rates from the date of this judgement until payment in full. c. The plainti is awarded the costs of the suit. It is so ordered JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF NOVEMBER, 2023. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21745/eng@2023-11-23 5

page 5 of 6

M.D. MWANGI JUDGE In the virtual presence of: Mr. Onyango for the Plainti No appearance by the Defendants Court Assistant: Yvette M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21745/eng@2023-11-23 6

page 6 of 6