Paul Mwova Mulee v John Mutunga Muthuku [2018] KEELC 3004 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT   AND LAND   COURT AT MAKUENI

ELC  CASE  NO. 313 OF  2017

PAUL MWOVA MULEE...................................................PLAINTIFF

VERSUS

JOHN MUTUNGA  MUTHUKU....................................DEFENDANT

JUDGMENT

1. By  his  plaint dated 13th  July, 2017 and filed in court on 21st  July, 2017 the Plaintiff prays for judgment   against the Defendant  for;

a) An order that the Defendant   be compelled to transfer and hand over vacant possession of the parcel of land known as MAKUENI/KAKO/258  to the Plaintiff  herein.

b) Damages.

c) Interest  thereon.

d) Costs of this  suit.

e) Any other  relief the court deems fit to grant.

2. On the  28t  July,  2017 the Defendant   was served with summons  to enter appearance and to file his defence but he did not do so. Consequently, on the 17th October, 2017, the court  directed  that   the matter should  proceed  as an undefended suit.

3. During  the hearing the Plaintiff told the court that he is the Chief  for  Mbimbini Location in Kaleo Division of Mbooni East  Sub County. He went on to say that in the year 1996, he bought  a portion of land from the Defendant and pointed out that he began purchasing the same  in the year  1987.  He said that he  and the  Defendant entered into 4 sale  agreements written  in  Kamba language.   He produced  the 4 sale agreements as PEX No. 1(a). He also   produced their translations as PEX No 1(b).  He said that the agreements were witnessed  by  among others, Nicholas Musyoki Mbuvi who was then   the Assistant   Chief but now retired.

4. The plaintiff  went on to say that the Defendant   later applied   for  letters  of administration and  he was issued with a grant of letters  of administration   on the 20th March, 2001 which  was  confirmed   on the 24th September,  2008(see PEX no. 2(a) and (b) respectively).   It was also  his evidence that the size of the land that was subject  of the sale agreement was 7 acres.

5. The plaintiff  pointed  out that on the  26th  January,  1993  he asked  the Defendant  to allow him   to develop the 7 acres which  the latter   did vide the written  authority which the plaintiff produced  as PEX no. 4.  He said that on the  15th September, 2016 the Defendant  while in the company of his  members of his family obstructed him as he was carrying out  construction on the said land.  He said that the building  materials are still  on the site.

6. On being  asked by the court to clarify whether  or not the 7 acres  of land were  transferred  to him by the Defendant, the  Plaintiff said that the latter has so far been unco-operative.

7. The Plaintiff  did not  file  his  submissions despite being  directed   by the court  to do so.

8. From  the  evidence on record it is  clear that the Plaintiff has an interest in land  parcel number  Makueni/Kako/258 which is in the name of Muthuku Usongi who is  the father  of the Defendant.  Muthoku Usongi is deceased. The Defendant   did  obtain letters of administration  (PEX no. 2(b)) in respect  of  his  late father’s  estate which include land  parcel  number  Makueni/Kako/258 of which  the Plaintiff was to get  7 acres while the Defendant was to  retain 18 acres. There is no reason why the Defendant  who is   the administrator of the estate of his  deceased  father cannot  transfer 7 acres out of land parcel number  Makueni/Kako/258 in  line  with the sale agreements (PEX No.1(a) to(d)) and the  certificate  of confirmation of grant dated 24th September, 2008 (PEX no 2(b))

9. The evidence on record  shows  that the parties   herein  had identified the portion which  the Plaintiff was to take possession  of. The  Defendant  actually proceeded to  grant the Plaintiff  written authority  develop (PEX no. 4) his portion of the suit land  which the Plaintiff proceeded to do until  the  Defendant stopped  him from constructing  on the said land.  I am of the view that the Plaintiff is entitled  to damages.  Halsburys Laws of England, 4th ed, Vol. 45 at para 26, 1503 provides as follows;

a. If the  plaintiff  proves the trespass he is entitled  to recover  nominal damages, even if he has not suffered any actual loss.

b. If the trespass has caused the plaintiff actual damage, he is entitled  to receive such amount as will compensate him for his loss.

c. Where  the defendant has made use of the plaintiffs’ land, the plaintiff is entitled to receive by way of damages such a sum as would reasonably be paid  for that use.

d. Where there is an oppressive, arbitrary or  unconstitutional  trespass by a government official or where the defendant cynically disregards the rights or the plaintiff in the land with the object of making  a gain by his unlawful conduct, exemplary damages may be awarded.

e. If the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, the general damages may be increased.

10) The  Defendant  cannot  be allowed to benefit from his own mischief. He allowed  the plaintiff to develop his portion of land and when the latter tried to do so, the former barred him despite clear indication in the confirmation of grant (PEX No. 2 (b)) on how  the suit land was to be subdivided. As  earlier on stated,  the confirmed grant shows that the Plaintiff was to be allocated  7 acres while the Defendant was to retain 18 acres out of the suit land.   In my view, a  nominal sum of Kshs. 100,000/= would  suffice. Under  the circumstances and I will proceed to award the same to the Plaintiff in my judgement.

11. Being satisfied that the Plaintiff has on a balance of probabilities shown this court that he has a cause of action against the Defendant, I hereby proceed to enter judgment and against the Defendant  as herein under:-

a) An order that the Defendant   be compelled to transfer and hand over vacant possession of the parcel of land known as MAKUENI/KAKO/258  to the Plaintiff  herein.

b)  Kshs.  100,000/= being   general  damages.

c) Interest.

d)  For good measure, plus costs  in case the Defendant  fails  to transfer 7 acres out of land parcel number  Makueni/Kako/258, the Deputy Registrar of this court  is authorized to transfer the  necessary transfer forms.

It is so ordered.

Signed, dated  and delivered  at Makueni this  28th  day  May, of 2018.

MBOGO C.G,

JUDGE

IN  THE  PRESENCE OF;

Mr. Hassan holding brief  for  Mr.  Munyasya    for the Plaintiff

Mr.  Kwemboi Court Assistant

MBOGO C.G JUDGE

28/5/2018