Mutea & another v M’Nabea (Civil Case E022 of 2023) [2024] KEMC 126 (KLR)

vacant possession. He thus asked the court to evict the defendant. He produced the above documents in evidence. 5. PW2 Michael Mwiti M’nabea adopted his statement and confirmed that he witnessed the sale agreement where the full purchase price was paid and title deed obtained but the defendant withheld vacant possession. 6. At the end of their testimony, the plaintifi closed their case. The duty of the court is to determine if the case has been established on a balance of probabilities. Determination 7. There is cogent proof vide the sale agreement and title deed that the plaintifis lawfully acquired ownership of the subject land. In the result, the defendant’s refusal to hand over vacant possession was illegal and unlawful and must be met with the legal measures prescribed: eviction. This Honourable Court has been guided by 2 binding authorities on a similar issue : Margaret Karwira Mwongera -vsFrancis Kofo (2019) eKLR (Munyao J.) and James Mathura Makewa -vs- Nzari Nguli (2021) eKLR (Mbogo J.) wherein the 2 superior courts allowed the eviction to issue where it was proved that the Applicant was the registered proprietor and held title to the land. These eviction orders are issued under the provisions of sections 152A, 152B, 152E, 152F, 152G and 152I of the Land Act CAP 280 Laws Of Kenya. 8. As for the prayer of general damages for breach of contract, the court declines to award the same since it is a settled principle of law that general damages may not be awarded for breach of contract. In the authority of Pwani Telecomms Limited v Taita Taveta County Government (2021) eKLR (Ong’injo J.) had this to state on the issue of payment of general damages for breach of contract: “32. 9. In its plaint, the plaintifi also claimed loss of income and business at Kshs. 2,790,000 and general damages for breach of contract. On loss of income and business, the plaintifi in its submissions conceded that no evidence was adduced to support this claim. Accordingly, when it comes to general damages, it is well settled in law that it cannot be awarded on a claim anchored on a breach of contract. In afirming that position, the Court of Appeal in the case of Joseph Urigadi Kedeva vs. Ebby Kangishal Kavai Kisumu Civil Appeal No. 239 of 1997 (UR) which was cited by the Court in James Maranya Mwita v South Nyanza Sugar Co. Ltd [2017] eKLR emphatically expressed itself thus: ".... As to the award of Kshs. 250,000/= as general damages, Mr. Adere submitted that there can be no award of general damages for breach of contract......We respectfully agree. There can be no general damages for breach of contract......" 10. In the result, judgement is entered in favour of the plaintifis as prayed in these terms: 1. Eviction of the defendants from Abothuguchi/Gaitu/4805 2. Permanent injunction restraining the defendants from trespassing thereupon. 3. General damages for trespass and breach of agreement is dismissed. d. Costs of the suit. e. Interest at court rates Right of appeal is 30 days. https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/126/eng@2024-06-28 2

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READ AND SIGNED AT GITHONGO LAW COURTS THIS 28TH DAY OF JUNE, 2024 HON.T. A. SITATI SENIOR PRINCIPAL MAGISTRATE GITHONGO LAW COURTS Present Ronny Court Assistant No Party Is In Court But Judgement Is Delivered https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/126/eng@2024-06-28 3

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