Macharia & 7 others v Mugo & another (Civil Appeal 73 of 2014) [2023] KECA 208 (KLR) (24 February 2023) (Judgment)
- Court
- Court of Appeal
- Case number
- 208
- Citation
- [2023] KECA 208 (KLR)
- Decided
- 24 February 2023
The appeal is dismissed with costs to the 1st respondent. The registration of the respondents as proprietors of the suit property, the fact of which was not contested, did not negate the respondent’s case as pleaded so as to require amendment of the pleadings. If anything, their registration as proprietors coupled with possession strengthened the case for eviction of the appellants who, before the learned judge, had no defence to the respondents’ claim.
Facts
The appellants and respondents are in dispute over the ownership and possession of a property known as LR No. Loc. 3/Mukuria/150. The respondents, Daniel Ng’anga Mugo and Beth Njambi Njoroge, are the children of Gathokore Mugo, who was the registered owner of the property at the material time. The respondents filed a suit for trespass and sought an order for eviction of the appellants. The High Court granted the respondents' suit with costs and ordered eviction of the appellants after one month, but dismissed the claim for damages for trespass.
Issues
- statutory, legal and equitable trust and overriding interest of the appellants in the suit property
- occupation of the suit property by the appellants
- locus standi of the 2nd respondent to file, prosecute or sustain a claim against the appellants
- statutory, legal and equitable trust and overriding interest of the appellants as offspring of the deceased in the suit property
Reasoning
The judgment of the High Court was not in disparity with the respondents' case as pleaded. The respondents were registered as proprietors of the suit property, and their possession strengthened the case for eviction of the appellants.
Outcome
Appeal dismissed with costs to the 1st respondent
Orders
- dismissal of the appeal with costs to the 1st respondent
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