Samuel Charo Kitsao & 34 others v Mombasa Cement Limited [2018] KEELC 1509 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Proof of ownership following adjudication
The Plaintiffs proved their title and interests through the Adjudication Register and Notice of Completion of the Adjudication Register produced in evidence
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.
Validity of purchases from third parties
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
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.
Effect of Defendant's failure to testify
The Defendant's failure to adduce evidence despite being given almost two years meant the Plaintiffs' uncontroverted testimony stood
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.
Trespass and demolition of developments
The Defendant unlawfully entered the suit properties, fenced them, cut trees, demolished houses and excavated limestone without the owners' consent
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.
Legal principles established
#- 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
#- 1.Judgment entered for the Plaintiffs as prayed in the Plaint
- 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.The Plaintiffs awarded the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land disputes (ELC suit filed in first instance)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.