Mary Wanjiku Kimani v Mary Wanjiru, Martin Paul & Nairobi City County Government [2020] KEELC 594 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC NO. 559 OF 2017

MARY WANJIKU KIMANI..............................................................PLAINTIFF

VERSUS

MARY WANJIRU......................................................................1STDEFENDANT

MARTIN PAUL.......................................................................2ND DEFENDANT

NAIROBI CITY COUNTY GOVERNMENT.........................3RD DEFENANT

JUDGEMENT

1. By a plaint dated 24th August 2017 and amended on 12th September 2017, the plaintiff seeks judgment against the defendants jointly and severally for;-

(a) A declaration that the plaintiff is the sole legal owner of the leasehold interest in house number 84 -3D situated at Umoja II estate Nairobi from Nairobi City County Government.

(b) An eviction against the 1st and 2nd defendants jointly and severally.

(d) Any other or further orders that the court deems just in the circumstances.

2. Upon being served with copies of plaint and summons to enter appearance the 1st and 2nd defendant neglected to enter appearance and/or file defence within the stipulated period. There is an affidavit of service duly filed on 31st October 2017.

3. The 3rd defendant entered appearance through the firm of M/S Osero & Co. Advocates on 20th November 2017. The 3rd defendant also filed a statement of defence dated 14th February 2018 and filed in court on 15th February 2018. In paragraph 4 of the statement of defence, “the 3rd defendant categorically denies having knowledge about the ongoings between the plaintiff and the 1st and 2nd defendants, and it is a total stranger to the allegations contained in the amended plaint. The plaintiff is put to strict proof thereof”. It prays that the plaintiff’s suit be dismissed with costs.

4. The plaintiff set down the matter for hearing on 27th February 2020. The 3rd defendant was duly served. There is an affidavit of service sworn by Peter M. Keli court process server on the 20th February 2020 and filed in court on 21st February 2020. The court was satisfied that the 3rd defendant had been duly served and directed that the matter proceeds exparte.

5. PW1, Mary Wanjiku Kimani, the plaintiff, told the court that she is the owner of House No. 84-3D Umoja II estate. She adopted her witness statement dated 24th August 2017 and the bundle of documents dated the same date. She told the court that she was allocated the suit premises by the 3rd defendant having applied for allocation under application number 024831 in the year 1987. It was followed by balloting which earned her ballot No. 761 and a house account number 23979 was opened on her name by the then Nairobi City Council (predecessors to the 3rd defendant).

6. She paid the Kshs.58,490 being the purchase price of the house. She made payments by instalments. She was issued receipt no. 4693477 dated 3rd March 1999. She further told the court, she has been paying the rates in respect of the suit premises.

7. That in or about May 2016 the 1st defendant forcefully and illegally took possession of the units comprised in the suit premises and placed an illegal occupant being the 2nd defendant who pays rent to the 1st defendant.

8. In support of her case, the relied on the documents in the list of documents dated 24th August 2017. She produced the original letter of allocation as exhibit P1; the original house card exhibit P2; letter dated 26th March 1999 exhibit P3; receipt for Kshs.55,190 exhibit P4; receipt no. 386310 dated 5th January 1988 – marked exhibit P5; she also produced a letter dated 19th December 2016 by the Director of Investigations of the 3rd defendant confirming the house belongs to her as exhibit P6. She also produced two other letters as exhibit P7 and 8 respectively.

9. The plaintiff’s case has not been controverted. I find that she has demonstrated she acquired the suit premises. On the other hand, the 1st and 2nd defendants had the opportunity to show how they acquired the suit premises but they neglected and/or refused to participate in these proceedings.

10. All in all, I find that the plaintiff has proved her case against the defendants on a balance of probabilities. I enter judgment in her favour as follows;-

(a) That a declaration is hereby issued that the plaintiff is the sole legal owner of the leasehold interest in House Number 84-3D situated at Umoja II Estate Nairobi from Nairobi City County Government.

(b) That an order of eviction is hereby issued against the 1st and 2nd defendants jointly and severally.

It is so ordered.

Dated, signed and delivered in Nairobi on this 19th day of November 2020.

……………………….

L. KOMINGOI

JUDGE

In the presence of:-

No appearance for for the Plaintiff

No appearance for the Defendants

Phyllis - Court Assistant