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Court of AppealPartially AllowedCivil Appeal (from ELC Petition No. 7 of 2013, Malindi)· [2023] KECA 1286 (KLR)

Aboud & 18 others v Khan (Civil Appeal 21 of 2020) [2023] KECA 1286 (KLR)

Court of Appeal
27 October 2023
5,436 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a landowner's title to Watamu property but threw out Kshs. 3.5 million damages because no evidence of loss was presented at trial.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Mombasa (Kairu, Nyamweya and Lesiit, JJA) against the judgment of the Environment and Land Court at Malindi (Olola, J.) of 18th September 2020, which allowed the respondent's constitutional petition, declared him the legal owner of Plot No. 807 Watamu, found that the nineteen appellants had trespassed, issued injunctions, and awarded general damages of Kshs. 3.5 million. The appellants contended that the respondent's Grant was irregularly obtained from public land reserved for squatter settlement, that they had acquired title by adverse possession, and that the damages award was unjustified. The Court, addressing four issues, held that the appellants, who asserted the land was public utility land irregularly allocated, failed to adduce any evidence to impeach the respondent's title and had done nothing to challenge it since learning of it in 2000; the finding on valid title was therefore upheld. On damages, the Court held that submissions are no substitute for evidence, that no evidence of loss or of market rental value/mesne profits was led, and that the basis of the Kshs. 3.5 million award was not evident; the award was set aside. On adverse possession, the Court affirmed that the prerequisites must be proved on a balance of probabilities, that there must be certainty as to when time begins to run, and that the appellants' forcible, violent occupation, admitted in their own pleadings, disqualifies a claim of possession nec vi, nec clam, nec precario. The appeal succeeded only in part: the ELC judgment was upheld except the damages award, which was set aside, with each party bearing its own costs of the appeal.

Key legal issues

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01

Whether the respondent's title to the property was legally and procedurally acquired

Holding

The trial judge correctly found the title valid; the appellants, who asserted the land was public utility land irregularly allocated, bore the burden of proving this and adduced no evidence

Reasoning

The appellants positively asserted that the property was previously public utility land set aside for squatter settlement and that lawful steps were not followed in its alienation. Having made that assertion, they were required to produce evidence to demonstrate it, but their evidence related only to their 2000 efforts to have the property allocated to themselves. Having known of the title since 2000, they took no steps to impeach it until suit was brought 13 years later.

p. 7
02

Whether the award of general damages of Kshs. 3.5 million was well founded

Holding

The award was unsustainable: no evidence of loss was led, and the normal measure of damages for trespass would be market rental value or mesne profits, of which no evidence was given

Reasoning

Although the petition contained a prayer for general damages, the respondent gave no evidence of the nature of loss suffered, and written submissions cannot substitute for evidence. The normal measure of damages for trespass to land is market rental value or mesne profits for the period of wrongful occupation, and no evidence in that regard was led. The court could not discern how the trial judge arrived at the Kshs. 3.5 million figure and set the award aside.

p. 8
03

Whether the appellants established adverse possession

Holding

The claim failed: no evidence of when each appellant entered the land, and their occupation was by force rather than peacefully

Reasoning

Of nineteen appellants only one testified; no evidence established when each occupied the property, yet certainty as to when time begins to run is required. In any event, the pleadings and testimony showed the appellants forcibly kept the respondent out, staging violent demonstrations and vowing to defend the property with their blood. Possession adverse to the owner must be without force, secrecy or permission; forcible occupation cannot ripen into title. The trial judge's finding to that effect was affirmed.

p. 9

Legal principles established

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  • Possession of land obtained and maintained by force cannot found a claim for adverse possession; a court will not allow a party to benefit from the illegality of its own actions
  • The essential prerequisites of adverse possession must be proved on a balance of probabilities and cannot be assumed
  • Submissions are no substitute for evidence; general damages must be supported by evidence led at trial

Court orders

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  1. 1.The judgment of the ELC delivered on 18th September 2020 is upheld except for the award of general damages of Kshs. 3.5 million which is set aside
  2. 2.Each party shall bear its own costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 31
  • Constitution of Kenya, 2010Article 64
  • Land Registration Act, 2012Section 26(1)
  • Land Registration Act, 2012Section 107(1)
  • Registration of Titles Act (repealed)Section 23
  • Government Lands Act (repealed)
  • Evidence ActSections 107 and 109
  • Limitation of Actions ActSection 7

Cases cited (11)

  • Abdi Mohamed Kahiya v. Fatuma Haji Kasim
    [2019] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Kenya Anti-Corruption Commission v. Online Enterprises Limited & 4 others
    [2019] eKLR
  • Dr. Joseph Arap Ngok v. Justice Moijo ole Keiwua & 5 others
    Civil Appeal No. Nai. 60 of 1997
  • Arnacherry Limited v. Attorney General
    [2014] eKLR
  • Japhet Nkibutu & another v Regina Thirindi
    [1998] eKLR
  • Peter Mwangi Mbuthia and another v. Samow Edin Osman
    [2014] eKLR
  • Kenya Hotel Properties Limited v. Willesden Investments Limited
    [2009] eKLR
  • Mtana Lewa v. Kahindi Ngala Mwagandi
    [2015] eKLR
  • Watuko v. Busolo & 3 others
    (Civil Appeal 129 of 2017) [2022] KECA 171 (KLR)
  • Kimani Ruchine v Swift, Rutherford & Co. Ltd
    (1980) KLR 10
On appeal from
Environment and Land Court at Malindi
Petition No. 7 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal from the Environment and Land Court (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Aboud & 18 others v Khan (Civil Appeal 21 of 2020) [2023] KECA 1286 (KLR)", Case Analysis (2023). Civil Appeal (from ELC Petition No. 7 of 2013, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1286/eng@2023-10-27

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