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ELCPartially AllowedELC Suit No. 595 of 2010· [2013] KEELC 7 (KLR)

Cornelius Nyabuti Mogaka v Fredrick Nyambuti Mogaka & 2 others [2013] KEELC 7 (KLR)

Environment and Land Court
2 December 2013
PNP. Nyamweya
2,005 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered proprietor of House Number Block F 28 in Kimathi Estate, Nairobi, sued the 1st defendant (his son) and the 2nd and 3rd defendants (his deceased wife's tenants) for vacant possession, permanent injunctions, mesne profits and costs after the 1st defendant took charge of the premises and collected rent following the wife's death on 27th March 2010. Interlocutory injunctions restraining rent collection were granted on 31st May 2011 with directions for accounts, and the 2nd and 3rd defendants vacated in July 2011, rendering the possession prayer spent. After formal proof, the court framed only two issues: entitlement to mesne profits and costs. Applying Order 21 Rule 13, the court held mesne profits are special damages requiring pleading and proof. It found rent of Kshs 324,000/= collected over the operational period (Kshs 252,000/= from the main house and Kshs 72,000/= from the servants quarters), of which only Kshs 115,490/= - City Council rates of Kshs 26,500/= and verified medical expenses of Kshs 88,990/= - was satisfactorily accounted for. Judgment was entered for the plaintiff for mesne profits of Kshs 208,510/=. A permanent injunction restrained the 1st defendant from interfering with the plaintiff's quiet possession. Although the plaintiff succeeded and costs normally follow the event, the court, mindful that this was essentially a family dispute and that the defendants had complied with court orders, ordered each party to bear their own costs.

Key legal issues

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01

Entitlement to and quantum of mesne profits

Holding

The Plaintiff was entitled to mesne profits of Kshs 208,510/=, being rent collected by the 1st Defendant less verified allowable expenses

Reasoning

Order 21 Rule 13 permits a decree for rent or mesne profits in a suit for recovery of possession. Rent agreed by the parties was Kshs 18,000/= monthly for the main house and Kshs 8,000/= for the servants quarters, yielding Kshs 324,000/= for the operational period. Only City Council rates of Kshs 26,500/= and medical expenses of Kshs 88,990/= were verified by receipts; other acknowledgments could not be verified. The accounted sum of Kshs 115,490/= was deducted from rent collected.

p. 4
02

Costs of the suit

Holding

Although the Plaintiff was successful and costs normally follow the event, each party was ordered to bear their own costs given the family nature of the dispute and the Defendants' conduct

Reasoning

The court noted the suit arose from a family dispute following the death of the Plaintiff's wife, who was the 1st Defendant's mother, and that the Defendants had given vacant possession and ceased collecting rent upon being ordered to do so. These circumstances justified departing from the general rule that costs follow the event.

p. 4

Legal principles established

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  • Mesne profits are special damages which must be both pleaded and proved

Court orders

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  1. 1.The 1st Defendant shall pay the Plaintiff mesne profits of Kshs 208,510/=
  2. 2.The 1st Defendant be and is hereby restrained from interfering with the Plaintiff's quiet possession of the premises known as House Number Block F 28 located in Kimathi Estate, Nairobi
  3. 3.Each party shall bear their own costs of the suit

Authorities

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Legislation

  • Civil Procedure ActOrder 21, Rule 13

Cases cited (2)

  • Catherine Ndegwa v Hiram Kiragu Kaniu & Another
    (2012) eKLR
  • Jeremiah O. Samba V. Samson Osano Ochi
    (2004) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; civil claim for possession, injunctions and mesne profits

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Cornelius Nyabuti Mogaka v Fredrick Nyambuti Mogaka & 2 others [2013] KEELC 7 (KLR)", Case Analysis (2013). ELC Suit No. 595 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/7/eng@2013-12-02

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