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Court of AppealPartially AllowedCivil Appeal No. 26 of 2004

Mbuthia & another v Osman (Civil Appeal 26 of 2004) [2014] KECA 279 (KLR)

Court of Appeal of Kenya
7 November 2014
PWP. N. WakiRNR. N. NambuyeSKS. Gatembu Kairu
3,135 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed landowners can win quick possession cases against trespassers, but threw out an unproven monthly compensation award.

What this practically means

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Executive summary

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The Court of Appeal (Waki, Nambuye and Gatembu Kairu, JJ.A) partly allowed the appellants' challenge to a High Court summary judgment (J.B. Ojwang, Ag J, 19 December 2003) ordering them to deliver vacant possession of LR No. 36/111/218 Section III Eastleigh, Nairobi, and to pay mesne profits of Kshs. 150,000.00 per month. The property had been sold at a public auction on 7 March 2003 by Kenya Commercial Bank in exercise of its statutory power of sale and transferred to the respondent on 25 March 2003. On the first issue, the court held that Order XXXV rule 1(b) properly applied to a landlord's or owner's claim against trespassers, and that the judge was entitled to find the defences - denial of ownership and a tenancy claim founded on the respondent's levy of distress - raised no bona fide triable issues, the duly registered Conveyance having settled ownership. Applying Kasturi Limited v Nyeri Wholesalers and Continental Butchery, and the Mbogo v Shah discretion standard, the court upheld the summary order for possession. On the second issue, the court found merit: the Kshs. 150,000.00 monthly mesne profits award rested on no evidence beyond a demand letter, and the respondent was obliged to substantiate the figure; the award was set aside. On the third issue, the court held that section 6 of the Civil Procedure Act did not bar the summary judgment application, since the pending suit HCCC 127 of 2003 involved other parties and the respondent was apparently not privy to HCCC 1843 of 2002. The High Court costs award was left undisturbed, and each party was ordered to bear its own costs of the appeal. This judgment binds subordinate courts and the High Court on the Order XXXV summary judgment principles and the evidentiary burden for mesne profits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the matter before the learned judge was appropriate for disposal by summary judgment under Order XXXV of the Civil Procedure Rules
  2. 2.Whether any evidence supported the award for mesne profits of Kshs. 150,000.00 per month
  3. 3.Whether the application for summary judgment was barred on account of the previously instituted suits

Key legal issues

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01

Suitability of the case for summary judgment under Order XXXV against alleged trespassers

Holding

The claim under Rule 1(b) of Order XXXV was properly invoked, and the judge was entitled to conclude the defences were shams raising no bona fide triable issues, the registered Conveyance having settled ownership

Reasoning

Order XXXV rules 1 and 2 permit summary recovery of land from a trespasser where the defence raises no prima facie bona fide triable issues. The respondent exhibited a duly registered Conveyance; the denials of ownership and the tenancy claim based on distress for rent did not raise triable issues. The judge's exercise of discretion in granting summary possession cannot be disturbed absent misdirection or clear wrongness per Mbogo v Shah.

p. 4
02

Whether the mesne profits award of Kshs. 150,000.00 per month was sustainable

Holding

The award was set aside because it was not based on any evidence; the respondent failed to substantiate how the figure was computed

Reasoning

The respondent's affidavit merely asserted entitlement to mesne profits without material showing how the Kshs. 150,000.00 monthly figure was derived; the only support was a demand letter. Counsel for the respondent could only say the figure was unchallenged. An uncontested claim is not proof; the claimant had to place material before the court substantiating the amount.

p. 5
03

Whether pending prior suits (sub judice under section 6 of the Civil Procedure Act) barred the summary judgment application

Holding

Section 6 was no bar; the prior suit HCCC 127 of 2003 involved additional parties and HCCC 1843 of 2002 did not include the respondent

Reasoning

The court perused the plaint in HCCC No. 127 of 2003 and found other parties besides those in the summary judgment suit were involved; the pleadings in HCCC No. 1843 of 2002 were not on the record and the respondent was apparently not privy to it. The statutory bar on parallel suits under section 6 of the Civil Procedure Act therefore did not apply.

p. 6

Legal principles established

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  • Order XXXV permits a plaintiff seeking recovery of land from a trespasser to apply for summary judgment, provided no prima facie bona fide triable issues are raised by the defence; if a bona fide triable issue is raised, the defendant must be given unconditional leave to defend
  • A claimant for mesne profits must place material before the court demonstrating how the amount claimed was arrived at; an unsubstantiated figure cannot be sustained
  • An appellate court will not interfere with the grant or denial of leave to defend under Order XXXV unless the judge misdirected himself or was clearly wrong in the exercise of discretion

Court orders

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  1. 1.Upheld the judgment of the High Court granting summary judgment for possession of the property to the respondent
  2. 2.Set aside the award for mesne profits of Kshs. 150,000.00 per month
  3. 3.Declined to interfere with the award for costs in the High Court
  4. 4.Ordered each party to bear its own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority

Wrote the judgment

RN
majority

Wrote the judgment

SK
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 600 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (appeal from the judgment/decree of the High Court)

Relief refused

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Setting aside the summary judgment for vacant possession

The judge was entitled to find the defences did not raise bona fide triable issues; the registered Conveyance settled ownership and the appellants' remedy for wrongful exercise of statutory power of sale lay in damages

p. 6

Interference with the High Court costs award

The court saw no basis to disturb the costs order made by the High Court

p. 6

Costs

As the appellants partially succeeded, each party to bear its own costs of the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Those provisions, in our view, permit a plaintiff who seeks to recover possession of land from a trespasser to apply for summary judgment subject, of course, to there being no prima facie bona fide triable issues raised by the defence.
p. 4summary judgment against trespassers under Order XXXV
With a view to eliminate delays in the administration of justice which would keep litigants out of their just dues or enjoyment of their property the court is empowered in an appropriate suit to enter judgment for the claim of the plaintiff under the summary procedure provided by Order 35 subject to there being no triable issue which would entitle the defendant leave to defend.
p. 5purpose of the summary procedure (quoting Continental Butchery)
it was incumbent upon the respondent to place material before the court demonstrating how the amount that was claimed for mesne profits was arrived at. Absent that, the learned judge erred in awarding an amount that was neither substantiated nor established.
p. 5evidentiary burden for mesne profits
The result is that we uphold the judgment of the learned judge of the High Court granting summary judgment for possession of the property to the respondent. The award for mesne profits of Kshs.150, 000.00 per month cannot however be sustained and is hereby set aside.
p. 6final orders - partial success
As the appellants have partially succeeded in the appeal, we think each party should bear its own cost of the appeal. We so order.
p. 6final orders - costs

Issues in the judgment

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minor

The judgment refers to the Continental Butchery appeal inconsistently - counsel cited it as Civil Appeal No. 35 of 1997 while the quoted passage within Kasturi refers to Civil Appeal No. 35 of 1977

minor

The judgment is dated 2014 but counsel for the appellant is recorded as citing Kenya Commercial Bank Limited vs. Sheikh Osman Mohammed [2013] eKLR in an appeal from a 2003 decision heard years later; no contradiction within the judgment itself, noted only for the unusual delay

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mbuthia & another v Osman (Civil Appeal 26 of 2004) [2014] KECA 279 (KLR)", Case Analysis (2014). Civil Appeal No. 26 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/279/eng@2014-11-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.