Case ID:165067

James Thendu Gitau v Wacarol Investments; Karanja Mugunyu & 9 others (Intereted Parties) [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 120 of 2018

Parties:

James Thendu Gitau v Wacarol Investments; Karanja Mugunyu, David Wanaina Maina, Joseph Njoroge Nyamwea, Benard Kamau Gitau, Benard Kamau Gitau, Mwangi, Kariuki, Wa Denis, Baba Kariuki & Gitau (Intereted Parties)

Date Delivered:

15 Oct 2020

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Judgment

Judge(s):

Lucy Nyambura Gacheru

Citation:

James Thendu Gitau v Wacarol Investments; Karanja Mugunyu & 9 others (Intereted Parties) [2020] eKLR

Court Division:

Environment and Land

County:

Kiambu

Case Outcome:

Plaintiff is awarded

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO. 120 OF 2018

JAMES THENDU GITAU..........................................................PLAINTIFF

VERSUS

WACAROL INVESTMENTS..................................................DEFENDANT

AND

KARANJA MUGUNYU....................................1

ST

INTERESTED PARTY

DAVID WANAINA MAINA..............................2

ND

INTERESTED PARTY

JOSEPH NJOROGE NYAMWEA..................3

RD

INTERESTED PARTY

BENARD KAMAU GITAU...............................4

TH

INTERESTED PARTY

BENARD KAMAU GITAU...............................5

TH

INTERESTED PARTY

MWANGI.........................................................6

TH

INTERESTED PARTY

KARIUKI..........................................................7

TH

INTERESTED PARTY

WA DENIS........................................................8

TH

INTERESTED PARTY

BABA KARIUKI................................................9

TH

INTERETED PARTY

GITAU..............................................................10

TH

INTERETED PARTY

JUDGMENT

By a Plaint dated

16

th

April 2018,

the Plaintiff herein filed this suit against the Defendant and sought for orders that

;

a)

A declaration that the Ruiru/Kiu/Block 2(Githunguri) 4344 and the subsequent subdivisions 2/17358, Ruiru/Kiu/ Block 2/17359, Ruiru/Kiu/ Block 2/17360, Ruiru/Kiu/ Block 2/17361, Ruiru/Kiu/ Block 2/17362, Ruiru/Kiu/ Block 2/17363, Ruiru/Kiu/ Block 2/17364, Ruiru/Kiu/ Block 2/17365, Ruiru/Kiu/ Block 2/17366, Ruiru/Kiu/ Block 2/17367, Ruiru/Kiu/ Block 2/17368, Ruiru/Kiu/ Block 2/17369 belong to the Plaintiff absolutely.

b) Permanent Injunction against the Defendants, his servants, agents. employees and all those claiming through or under the Defendants restraining it/them from occupying, erecting structures or interfering with the suit property namely Ruiru/ Kiu/ Block 2(Githunguri) 4344 and the subsequent subdivisions Ruiru/kiu Block 2/17358, Ruiru/Kiu/ Block 2/17359, Ruiru/Kiu/ Block 2/17360, Ruiru/Kiu/ Block 2/17361, Ruiru/Kiu/ Block 2/17362, Ruiru/Kiu/ Block 2/17363, Ruiru/Kiu/ Block 2/17364, Ruiru/Kiu/ Block 2/17365, Ruiru/Kiu/ Block 2/17366, Ruiru/Kiu/ Block 2/17367, Ruiru/Kiu/ Block 2/17368, Ruiru/Kiu/ Block 2/17369in any manner whatsoever.

c) An eviction directed against the Defendant and all those claiming title over the suit property under or through them to vacate the suit property namely Ruiru/ Kiu/ Block 2(Githunguri) 4344 and the subsequent subdivisions Ruiru/kiu Block 2/17358, Ruiru/Kiu/ Block 2/17359, Ruiru/Kiu/ Block 2/17360, Ruiru/Kiu/ Block 2/17361, Ruiru/Kiu/ Block 2/17362, Ruiru/Kiu/ Block 2/17363, Ruiru/Kiu/ Block 2/17364, Ruiru/Kiu/ Block 2/17365, Ruiru/Kiu/ Block 2/17366, Ruiru/Kiu/ Block 2/17367, Ruiru/Kiu/ Block 2/17368, Ruiru/Kiu/ Block 2/17369.

d) A declaration that the Defendants and all those claiming over the suit property Ruiru/ Kiu/ Block 2(Githunguri) 4344 and the subsequent subdivisions Ruiru/Kiu Block 2/17358, Ruiru/Kiu/ Block 2/17359, Ruiru/Kiu/ Block 2/17360, Ruiru/Kiu/ Block 2/17361, Ruiru/Kiu/ Block 2/17362, Ruiru/Kiu/ Block 2/17363, Ruiru/Kiu/ Block 2/17364, Ruiru/Kiu/ Block 2/17365, Ruiru/Kiu/ Block 2/17366, Ruiru/Kiu/ Block 2/17367, Ruiru/Kiu/ Block 2/17368, Ruiru/Kiu/ Block 2/17369under or through the Defendant are trespassers and their continued occupation and activities on the suit land is illegal and/ or unlawful and amounts to trespass and subsequently the court do issue and order for demolition of all illegal structures forthwith.

e) Damage for trespass to land mesne profits, costs of this suit and interest.

In his statement of claim, the Plaintiff averred that he is the registered owner of the suit property having purchased the same from

Peter Karanja Kuria

on

29

th

November 2013,

and the same transferred to him on

31

st

March 2014

whence he was issued with a title deed. It was further averred that on

14

th

October 2015

, the Plaintiff subdivided the land into twelve parcel each with a separate title deed. Further that on diverse dates, the Defendant also purported to subdivide the suit property into

16 plots

and allocated them to the interested parties who are persons that are unknown to the Plaintiff with 2 plots going to persons yet to be identified. It was the Plaintiff’s contention that the Defendant’s actions are

mala fides

and are done without any colour of right as the Defendant does not have any interest in the suit property.

Despite being served with the suit papers, the Defendant did not enter appearance and the matter proceeded for formal proof by way of viva voce evidence where the Plaintiff testified for himself and closed his case.

PLAINTIFF’S CASE

PW1 James Thendu Gitau

the Plaintiff herein adopted his witness statement dated

16

th

April 2018

as his evidence. He further produced his list of documents as Exhibit 1. It was his testimony that he subdivided the land into twelve portions and some people invaded his land. He urged the Court to issue eviction orders and prayers as sought in the Paint.

On

22

nd

January 2020,

the Court directed the Plaintiff to file written submissions and in compliance with the said directive the Plaintiff through the Law Firm of

Prof. Kiama Wangai & Company Advocates

filed his written submissions dated

8

th

May 2020

which the Court has carefully read and considered and finds that the issue for determination is whether the

Plaintiff is entitled to the orders sought.

The Defendant failed to enter appearance, file a Defence and hence failed to defend the suit. However, the Plaintiff is the one who has alleged and he has a duty to prove his case. As provided by

Section 107

of the

Evidence Act

, the Plaintiff has a duty to call evidence and prove his case on the required standard. The said Section states:-

(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.

Further the Court also has a duty to interrogate the evidence produced before it in order to arrive at as just determination as exparte evidence is not automatic. See the

case of

Gichinga Kibutha… Vs… Caroline Nduku (2018) eKLR

,

where

the Court held that:-

“

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.’’

It is not in doubt that the registration of a person as the owner of the land and Certificate of title held by such a person as a proprietor of a property is conclusive proof that he/she is the owner of the property. However, the registration of such title is not absolute as the same maybe impeached under certain circumstances as provided by

Section 26(1

)

of the

Land Registration Act

,

which states as follows;

“

The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, 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 certificate of title has been acquired

illegally

unprocedurally or through a corrupt scheme.”

It is not in doubt that the Plaintiff is the registered owner of L.R Ruiru/Kiu Block 2 Githunguri 4344 and the subsequent subdivisions. To this effect the Plaintiff has produced title deeds to confirm the same. The Plaintiff has further produced documentations to show the root of his title. The Court has seen a sale agreement dated 29

th

November 2013. The Court has also seen various documentation from Githunguri Constituency Ranching Company Limited, which evidences that Peter Karanja Kuria, being the vendor in the said sale agreement was the owner of the suit property. Therefore, the Court satisfied that the Plaintiff has proved that he is the owner of the suit property and subsequent subdivisions as evidenced by the mutation form.

As already noted above, the evidence by the Plaintiff has not been challenged or controverted and therefore he is the absolute and indefeasible owner of the suit property.

From the said registration, it means that without the said registration and proprietorship of the Plaintiff being impeached, he remains the legal owner of the suit property with all the rights and privileges that appertains to it as provided by

Section

24(a)

of the

Land Registration Act

, which states as follows;-

(a)

The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.

Further, it is clear that the right of such proprietor shall not be defeated except as provided by the law. See

Section

25

of the

Land Registration Act

which provides;

“The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of 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 appurtenances belonging thereto, free from all other interests and claims whatsoever.”

The Plaintiff has alleged that the Defendant has fraudulently sought to subdivide the suit property and given it to other third parties. As already held by the Court, the Plaintiff being the absolute and indefeasible owner of the suit property should enjoy all the rights and privileges. The Defendant had no right of subdividing the suit property and allocating the said plots to the interested parties. To this end, the Court finds that any such subdivision was illegal and the same must therefore be quashed. Further no party ought to be in either possession or occupation of the suit property without the Plaintiff’s consent and any intrusion of the Plaintiff’s property without his consent amounts to trespass.

The Court finds and holds that the Plaintiff is entitled to enjoy his rights as a proprietor of the suit property and these rights include exclusive use, possession and enjoyment of the same without interference by any third party. The Plaintiff cannot enjoy such rights and privileges if the Defendant and interested parties are in the suit property and therefore there is need for eviction and a permanent injunction. See the case of

Simon Njage Njoka …Vs…Simon Gatimu Kanyi (2007) eKLR, the Court of Appeal in Nyeri

, in allowing the Appeal, the court had the following to say:

“The appellant having provided a valid title to the piece of land and the respondent having not impugned it by way of counterclaim in the suit, the learned magistrate had no choice in the matter really than to hold that the respondent was a trespasser to that parcel of land belonging to the Appellant and liable to eviction. She should then have proceeded to evict the respondent.”

The Plaintiff has also sought for Damages for trespass. Trespass has been defined by

Clerk and Lindsel on Torts, 18

th

edition at Pg.23

as;

“any unjustifiable intrusion by one person upon the land in possession

.’’

From the above analysis, it is not in doubt that the Defendant without any right subdivided the land and allocated it to third parties who are in possession without the Plaintiff’s consent and therefore their intrusion amounts to trespass. In the case of

Park Towers Limited versus John Mithamo Njika & 7 others (2014)eKLR,

where the Court held that:-

“I agree with the learned Judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded damages awardable depending on the unique facts and circumstances of each case.’’

Further In the case of

Philip Aluchio…Vs…Crispinus Ngayo [2014] eKLR,

the Court

held as follows:-

“........ The plaintiff 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 difference in the value of the Plaintiff’s property immediately after the trespass or the costs of restoration, whichever is less .................’’

The plaintiff herein did not adduce any evidence as to the state of his property before and after the trespass. It therefore becomes difficult to assess general damages for trespass....”

Having not provided the value of the suit property before the alleged trespass, the Court proceeds to award a nominal figure of

Kshs.300,000/=

as general damages for trespass.

The Plaintiff has also sought for mesne profits. However the same must be specifically pleaded and proved. Further once a Court grants General Damages for trespass, the party is not entitled to mesne profit.

Having now carefully evaluated the available evidence, and considered the pleadings, the exhibits before Court and the written submissions by the Plaintiff, this Court finds that the Plaintiff has proved his case on the required standard of balance of probabilities. Consequently, the Court enters Judgment for the Plaintiff against the Defendant and all interested parties, jointly and severally as prayed in the Plaint in terms of prayers no.

(a) (b) (c)

and

(d).

On General damages as prayed in prayer no. (e), the Plaintiff is awarded

Kshs.300,000/=

and he is also entitled to costs of the suit.

It is so ordered.

Dated, signed

and

Delivered

at

Thika

this

15

th

day of

October 2020

L. GACHERU

JUDGE

15/10/2020

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting court operations due to the

COVID-19

Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on

15

th

March 2020

, this

Judgment

has been delivered to the parties online with their consents. They have waived compliance with

Order 21 rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

No appearance for the Plaintiff

No appearance for the Defendant

L. GACHERU

JUDGE

15/10/2020