Daniel N Ndirangu v Simon Mwangi T/A Nacana Hardware [2013] KEHC 2935 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELC NO. 881 OF 2012

DANIEL N NDIRANGU.........................................PLAINTIFF

=VERSUS=

SIMON MWANGI T/A

NACANA HARDWARE.........................................DEFENDANT.

RULING:

The Applicant herein Daniel Maina Ndirangu, has brought this Notice of Motion dated 22nd November, 2012Under Section 1A, 1B, 3 & 3A of the Civil Procedure Act, Cap 21 laws of Kenya, Order 40 Rules 1 &2, Order 51 Rule 1 of the Civil procedure Rules 2010 and all other enabling provisions of the law.  The applicant has sought for orders:-

That pending the inter-parties hearing and determination of this suit, the 1st Defendant/Respondent either by himself, his agents, servants, or in any manner howsoever be evicted from all that Parcel of Land known as Plot No.1271 A, and be restrained from remaining on, entering into, constructing and/or interfering with the Plaintiff’s quiet possession, occupation enjoyment, ownership, legal contractual and equitable rights and interest on all that parcel of land known as Plot No. 1271 A and/ or claiming interests rights or in any way dealing with or trespassing unto or continuing further trespass on the plot.

Costs of the application be borne by 1st Defendant.

The application was premised on the following grounds and also supported by the affidavit of Daniel Maina Ndirangu. That under  the records held by the 2nd Defendant, the Plaintiff is the proprietor of Land known as Plot No. P 1271 ‘A’ and Plot No.

P1 351’A’ and has been issued with Share Certificate No. 1097 for 2 ( two) Shares.That on or about September, 2012, the Plaintiff visited Plot No. 1271 ‘A’ when he discovered that the 1st Defendant erected and/or occupied a building in the said Plot and he operates a hardware business that the 1st Defendant has refused to  move out of the Plot and 2nd Defendant has refused to evict the 1st  Defendant.  That Plaintiff has a prima facie case and will suffer irreparable loss if 1st Defendant is not restrained.

The 1st Defendant filed his Defence and denied all the allegations  in the Plaint.  He also filed his Replying Affidavit   stated that he is only a Tenant and is not aware of the allegations made by the applicant. That applicant does not have any power to evict him as 1st Defendant is only  a tenant of one Kibathi who is the Original Owner.

Parties agreed to canvass the Notice of Motion by way of written  submissions. The applicant filed his written submissions on  25/4/2013.  However the 1st Defendant failed to comply.The Court will rely on the written submissions and the pleadings by     the parties herein.

From annexture DMI, there is no doubt that the applicant herein  Daniel Maina Ndirangu owns Plot No. 1271 A & 1351 “A”  at Witeithie Gwaka Investment Limited,as per that Share  Certificate.  There is also no doubt that 1st Defendant occupies Plot No. 1271 ‘ A’ as alleged by the Plaintiff.

The 1st Defendant however, contends that he is a tenant of one Kibathi who is the rightful owner of the premises.However, the 1st Defendant did not attach any document to show that he is indeed a tenant, nor did he attach the Share Certificate for the allegedKibathi his landlord.Without such proof that 1st Defendant is a Tenant, then the plaintiff evidence remains uncontroverted.

6. The Applicant has attached a Share Certificate confirming that he owns Plot 1271’A’, the suit property.Applicant has therefore demonstrated he has a prima facie case with high probability of success.

7. The 1st Respondent continues to occupy the suit property. The Applicant therefore, has been denied the use of the same, and even after persistent requests to move out, the 1st Defendant has failed to do so. The Applicant therefore, will suffer irreparable loss which cannot be compensated by an award of damages.

The Court finds that, the 1st Respondent did not file his written submissions and nor attach any documents to confirm that he is a Tenant in the said premises.

Having considered the Notice of Motion dated 22nd November, 2012 the Court finds that, the Applicant has satisfied the Court that he deserves to be granted the Orders sought.I rely on the guiding principles laid down in the case of Giella Vs Cassman    Brown Ltd [1973] EA 358.

Consequently, the Court allows the Applicant’s Notice of Motion dated 22nd November, 2012 in terms of Prayer No.3 .

Costs in the Cause.

It is so ordered.

Dated, Signed and delivered this   21ST   day of June, 2013.

L.N. GACHERU

JUDGE

In the Presence of:-

.................................. For the Plaintiff

......................................For the Defendant

Anne :Court Clerk

L.N. GACHERU