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ELCPartially AllowedMombasa ELC (unspecified number)· [2018] KEELC 2667 (KLR)

Shreeji Enterprises (K) Ltd v John Masha & 33 others and all other unknown persons trespassing onto and or dealing in any manner on Plot No. MN/V/1816 Miritini area of Mombasa County [2018] KEELC 2667 (KLR)

Environment and Land Court
18 April 2018
LKL. Komingoi
856 words in judgment
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The bottom line

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A Mombasa court confirmed a landowner's title, ordered squatters evicted with police help, but refused damages because the loss was never quantified.

What this practically means

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Executive summary

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The Plaintiff sued for a declaration that it is the bona fide proprietor of Land Parcel No. 1816/V/I MN in Miritini, Mombasa County, together with a permanent injunction, vacant possession, damages and costs against Defendants in occupation. The Defendants were served by substituted service (newspaper advertisement) pursuant to a court order of 2nd February 2017 allowing the Plaintiff's application dated 25th October 2016. They neither entered appearance nor filed a defence, and the matter proceeded to formal proof. P.W.1, Mark Otieno Odhiambo, the Plaintiff's Human Resource Manager, testified under an authority under seal and produced a certificate of search, transfer, certificate of title, Google maps for 2006-2012, photographs of the Defendants' structures, a land surveyor's ground report, a notice to vacate, affidavit of service and pleadings and orders from related Mombasa proceedings. Holding the Plaintiff's case uncontroverted and proved on a balance of probabilities, the court issued a declaration of bona fide ownership, a permanent injunction against trespass and occupation, and an order compelling the Defendants to vacate and deliver vacant possession, failing which they were to be evicted with security provided by the officer in charge of the nearest police station. Damages were declined because the loss was unquantified. Costs of the suit were awarded to the Plaintiff. Judgment was delivered at Mombasa on 18th April 2018 by L. Komingoi, Judge.

Key legal issues

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01

Proof of ownership of registered land in an uncontroverted case

Holding

The Plaintiff proved its case on a balance of probabilities through a certificate of search, transfer, certificate of title and surveyor's ground report

Reasoning

The Plaintiff's registered title over the suit property was demonstrated through official documents produced as exhibits. The Defendants did not enter appearance or file a defence despite substituted service by newspaper advertisement, so the plaintiff's evidence stood uncontroverted and was accepted on a balance of probabilities.

p. 2
02

Entitlement to eviction with police assistance

Holding

A registered proprietor entitled to vacant possession may obtain an eviction order with police security

Reasoning

Relying on the cited Court of Appeal authority, the court held that enforcement of an order for vacant possession is by eviction, and granted police assistance to ensure law and order during the eviction exercise sought by the Plaintiff.

p. 2

Legal principles established

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  • An order for vacant possession may be enforced by eviction under Order 22 Rule 29 of the Civil Procedure Rules, and police assistance may be ordered to maintain law and order during eviction

Court orders

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  1. 1.Declaration that the Plaintiff is and has always been the bona fide proprietor of the land known as No. 1816/V/MN, Miritini, Mombasa
  2. 2.Permanent injunction restraining the Defendants from trespassing onto, remaining in or continuing in occupation of, or dealing with the suit property
  3. 3.Order compelling the Defendants to vacate and deliver vacant possession, failing which they be evicted
  4. 4.Officer in charge of the nearest police station to provide security during the eviction
  5. 5.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 29

Cases cited (2)

  • Ahmed Suleiman & Another –versus- Khamis Surur
    (2013) eKLR
  • Bruce Joseph Bockle –versus- Coquero Limited
    (2017) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land in Mombasa County

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, "Shreeji Enterprises (K) Ltd v John Masha & 33 others and all other unknown persons trespassing onto and or dealing in any manner on Plot No. MN/V/1816 Miritini area of Mombasa County [2018] KEELC 2667 (KLR)", Case Analysis (2018). Mombasa ELC (unspecified number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2667/eng@2018-04-18

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