Simon Ngariu Maina & another v Daniel Maina Gitau [2019] KEHC 1274 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MILIMANI

ELC NO. 513 OF 2017

SIMON NGARIU MAINA & ANOTHER.................PLAINTIFFS

=VERSUS=

DANIEL MAINA GITAU............................................DEFENDANT

JUDGEMENT

1. The Plaintiffs filed a suit against the Defendant in which they sought the following reliefs:-

a. A permanent injunction restraining the Defendant, his servants and/or agents from remaining thereon, putting up any structures, using or otherwise howsoever from interfering with Plaintiff’s ownership, possession and/or occupation of the suit property LR No.11344/Block Z Plot No.B-540.

b. An order of eviction do issue forthwith against the Defendant from the suit property LR No.11344/Block Z Plot No.B-540.

c. General damages

d. Costs of the suit.

2. The Defedant who was duly served with summons to enter appearance and file defence, entered appearance and filed a defence but at the hearing of this suit, neither the Defendant not his advocate appeared. The hearing therefore proceeded ex-parte.

3. The Plaintiffs through the 2nd Plaintiff testified that on 12th August 2016, they saw an advertisement in the Star Newspaper which had advertised the suit property for sale by public auction. The Defendant had taken a loan from New Milimani Sacco Society Limited but failed to repay the loan. The Plaintiffs attended the public auction on 31st August 2016 where they became the highest bidders.

4. The Plaintiffs paid Kshs.800,000/= for the suit property. The Auctioneers gave them a certificate of sale dated 31st August 2016. They proceeded to Nairobi City County where records were changed into their names. Despite the Plaintiffs having purchased the suit property in a public auction, the Defendant has refused to vacate the suit property.

5. I have looked at the documents produced by the Plaintiffs. The Plaintiffs’ evidence is not controverted. The Plaintiffs produced a press advertisement from Star Newspaper of Friday 31st August 2016. They also produced a certificate of sale dated 31st August 2016 issued by Toplink Auctioneers. Also produced is a demand letter from their lawyers addressed to the Defendant.

6. Upon purchase, the records at the Nairobi City County were changed into the Plaintiffs names. I find that the Plaintiffs have proved their case on a balance of probabilities. I allow their claim in terms of prayers (a),(b) and (d) in addition to general damages of Kshs.200,000/=. Dated, Signed and Delivered at Nairobi on 5ththis day of December 2019

E.O .OBAGA

JUDGE

In the absence of Plaintiff who were aware of the date and time of delivery of Judgement.

Court Assistant: Hilda

E.O.OBAGA

JUDGE