SHREE VISA OSHWAL COMMUNITY & another v CITY COUNCIL OF NAIROBI [2008] eKLR

Key Facts

Issues

• The court needed to assess the mesne profits claimed by the plaintiffs for the period from September 2003. The plaintiffs alleged a loss of Kshs. 1,000,000.00 per month, supported by a valuation report, but the evidence lacked a clear basis for the calculation.
• The court was to decide on the interest rate applicable to the mesne profits and the allocation of legal costs between the parties. This determination was deferred pending the resolution of the mesne profits assessment.
• The court was required to determine if the plaintiffs are entitled to possession of the school property, given that the defendants unlawfully took it over without authority. The plaintiffs hold a valid title deed, and the defendants' defense on this matter was struck out.

Holdings

• The assessment of mesne profits was deferred to await evidence on the basis of the claimed figures (1,000,000 per month as pleaded and 800,000 per P.W.1's testimony). The court noted the substantial sums involved and ruled deferment to ensure justice for both parties.
• The issue of costs and interest was deferred to await a decision on the mesne profits assessment.
• The court ordered the defendant to give vacant possession of the suit premises (LR. NO. 209/5996) to the plaintiffs on or before 11th August 2008. Ownership was established via the plaintiffs' title deed, and the defendant's defense was struck out. The court emphasized the need for a calm handover during school holidays to avoid disruption.
• In default of compliance with the possession order, execution to issue.

Remedies

• The issue of costs and interest deferred to await a decision on number 3 above.
• Assessment to mesne profits is deferred to another date to await availing evidence on how the figures of 1,000,000.00 as per paragraph 10 of the plaint and 800,000.00 as per the evidence of P.W.1 were arrived at.
• An order be and is hereby given that the defendant do give vacant possession of the suit premises to the plaintiff's on or before 11th August 2008.
• In default of number 1 above execution to issue.

Legal Principles

• The court emphasized that claims for mesne profits (special claims) must be specifically pleaded, particularized, and proved. The plaintiffs were required to provide evidence substantiating the methodology used to calculate the claimed income loss (Kshs. 1,000,000.00/month or Kshs. 800,000.00/month). The claim was deferred pending further evidence due to insufficient justification for the figures.
• The court noted that the standard of proof for mesne profits necessitates clear evidence to justify the claimed amounts. Since the plaintiffs' evidence lacked a basis for the 8% valuation or the Kshs. 800,000.00/month estimate, the claim was deferred to allow for proper substantiation.

Cited Statute

Judge Name

Passage Text

• Once ownership is established and there is no justification shown for the forcible taking of the property, an order for possession is inevitable. What remains for determination is the appropriate time for the taking of the possession in view of the facts that is a school. This calls for the taking over exercise to be carried out in a calm atmosphere and suggested by the plaintiffs' lawyers an order that such possession be taken during the forthcoming school holiday is reasonable and would be appropriate.
• An order be and is hereby given that the defendant do give vacant possession of the suit premises to the plaintiff's on or before 11th August 2008.
• Assessment to mesne profits is deferred to another date to await availing evidence on how the figures of 1,000,000.00 as per paragraph 10 of the plaint and 800,000.00 as per the evidence of P.W.1 were arrived at.