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ELCAllowedELC Case No. 120 of 2014· [2017] KEELC 3565 (KLR)

Eliud Mwakio Mcharo v Cheka Abrahamani & 16 others [2017] KEELC 3565 (KLR)

Environment and Land Court
20 January 2017
AOA. Omollo
580 words in judgment
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The bottom line

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A Kenyan court evicted 17 people occupying a Mombasa plot, confirming that a registered title deed protects the owner's rights.

What this practically means

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Executive summary

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The plaintiff sued seventeen defendants for vacant possession of plot MN/1/6946 (also referred to in evidence as plot no. 20632, L.R. No. 6946/1/MN at Bombolulu), demolition of structures erected thereon, costs and interest. The plaint, dated 26th May 2014, was served on the defendants by advertisement in the Daily Nation of 28th January 2015. None of the defendants entered appearance or filed a defence, and interlocutory judgment was entered on 27th March 2015, with the suit set down for formal proof on 5th September 2016. At the formal proof hearing the plaintiff testified that he is a retired civil servant residing in Mwatate, Taita Taveta County, and produced his original title deed and a certificate of postal search dated 31st January 2014 confirming his registration as owner. He explained that in early 2014 his representative discovered that the plot had been invaded and structures erected without his knowledge or permission, and that his attempts to engage the occupants in discussion were rebuffed. The court found the evidence unopposed and held that the plaintiff's property rights were protected under Article 40 of the Constitution and Sections 24 and 25 of the Land Registration Act, which no contrary evidence displaced. The court found the case proved on a balance of probability and allowed the prayers in the plaint, granting vacant possession, demolition of the defendants' structures, costs and interest. Judgment was delivered at Mombasa on 20th January 2017 by A. Omollo, Judge.

Key legal issues

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01

Proof of title and entitlement to vacant possession against squatters

Holding

The plaintiff, as registered owner with a title deed and certificate of search produced in evidence, proved his case on a balance of probability and was granted the prayers in the plaint.

Reasoning

The defendants were duly served by advertisement and neither entered appearance nor filed a defence. Interlocutory judgment was entered and the suit proceeded to formal proof. The plaintiff testified and produced his original title deed and a certificate of postal search confirming ownership. The court found no contrary evidence to displace the rights conferred by Article 40 of the Constitution and Sections 24 and 25 of the Land Registration Act.

p. 2

Legal principles established

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  • A registered owner is entitled to enjoyment of his property under Article 40 of the Constitution and Sections 24 and 25 of the Land Registration Act, absent contrary evidence

Court orders

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  1. 1.Judgment entered for the plaintiff as prayed in the plaint, including vacant possession of plot MN/1/6946 and demolition of structures erected thereon by the defendants
  2. 2.Costs of the suit to the plaintiff
  3. 3.Interest on costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Land Registration ActSections 24 & 25
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (individualized in the judgment as Article 40 of the Constitution and Sections 24 & 25 of the Land Registration Act protecting the plaintiff's title)

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, "Eliud Mwakio Mcharo v Cheka Abrahamani & 16 others [2017] KEELC 3565 (KLR)", Case Analysis (2017). ELC Case No. 120 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3565/eng@2017-01-20

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