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ELCAllowedELC No. 46 of 2010 (consolidated with ELC No. 23 of 2011)· [2018] KEELC 1509 (KLR)

Samuel Charo Kitsao & 34 others v Mombasa Cement Limited [2018] KEELC 1509 (KLR)

Environment and Land Court
11 October 2018
2,957 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a cement company to vacate land it bought from people who had no right to sell it, confirming the original owners' title.

What this practically means

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Executive summary

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This was a consolidated first-instance land suit before the Environment and Land Court at Malindi, in which 35 Plaintiffs (ELC No. 46 of 2010, filed 13th May 2010) and 11 further Plaintiffs (ELC No. 23 of 2011, filed 14th February 2011) sought injunctions restraining the Defendant, a cement manufacturer, from entering, taking over and dealing with their parcels of land at Vuma-Maweni/Takaungu village, Kilifi. The Plaintiffs claimed their rights had been ascertained through a 1991 adjudication process completed on 25th June 1991, evidenced by the Adjudication Register and Notice of Completion. They testified that from October 2009 the Defendant fenced their plots, cut trees, demolished houses with bulldozers, constructed roads and excavated limestone. The Defendant's Defence was that some Plaintiffs were dead and that it had purchased plots on a willing-seller, willing-buyer basis from third parties. The Plaintiffs called 12 witnesses who demonstrated that many plots were sold by persons who were neither owners nor agents of the owners, some of whom falsely alleged the owners were dead. The Defendant, despite being given nearly two years, called no evidence. The court held that agreements with third parties lacking any saleable interest could confer no interest on the Defendant, found the Plaintiffs had proved their case on a balance of probabilities, and entered judgment for the Plaintiffs as prayed, ordering the Defendant to pull down the fence and vacate within 30 days, with costs to the Plaintiffs.

Key legal issues

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01

Proof of ownership following adjudication

Holding

The Plaintiffs proved their title and interests through the Adjudication Register and Notice of Completion of the Adjudication Register produced in evidence

Reasoning

PW1 produced the Adjudication Register and the Notice of Completion of the Adjudication Register showing that each Plaintiff was allocated a specific plot upon completion of the adjudication process on 25th June 1991. A perusal of the Register confirmed the plots allocated to each Plaintiff in both consolidated suits. This established the Plaintiffs' ownership on a balance of probabilities.

p. 1
02

Validity of purchases from third parties

Holding

The Defendant acquired no valid interest in the suit properties through agreements with third parties who were not the owners and had no authority to sell

Reasoning

The Defendant claimed to have bought various plots from third parties, some of whom had allegedly been told the owners were dead when they were alive. The Defendant called no evidence to rebut the Plaintiffs' testimony. The court found that where the purported sellers had no saleable interest, the agreements could not confer any interest on the Defendant.

p. 3
03

Effect of Defendant's failure to testify

Holding

The Defendant's failure to adduce evidence despite being given almost two years meant the Plaintiffs' uncontroverted testimony stood

Reasoning

The Defendant was given time between 22nd June 2015 and 4th December 2017 to call witnesses but did not do so. Consequently, no evidence contradicted the Plaintiffs' contention that the third-party sellers had no interest in the land. The court was therefore persuaded that the Plaintiffs had established their case on a balance of probabilities.

p. 3
04

Trespass and demolition of developments

Holding

The Defendant unlawfully entered the suit properties, fenced them, cut trees, demolished houses and excavated limestone without the owners' consent

Reasoning

Multiple Plaintiffs testified that the Defendant, which operates a nearby cement factory, entered their plots between October 2009 and September 2010, fenced them, cut trees, demolished permanent houses with bulldozers and constructed roads used to transport excavated limestone. The Defendant denied trespass only for plots it purchased, and offered no evidence at trial to displace the Plaintiffs' account.

p. 3

Legal principles established

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  • A sale of land by a third party with no beneficial or other interest in the land confers no interest on the purchaser

Court orders

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  1. 1.Judgment entered for the Plaintiffs as prayed in the Plaint
  2. 2.The Defendant granted 30 days to pull down the fence erected around the Plaintiffs' parcels of land and to vacate the suit premises forthwith
  3. 3.The Plaintiffs awarded the costs of the suit

Authorities

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Legislation

  • Land Adjudication Act (implied from adjudication register and notice of completion)not specified
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (ELC suit filed in first instance)

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, "Samuel Charo Kitsao & 34 others v Mombasa Cement Limited [2018] KEELC 1509 (KLR)", Case Analysis (2018). ELC No. 46 of 2010 (consolidated with ELC No. 23 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1509/eng@2018-10-11

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