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ELCDismissedELC Civil Suit No. 583 of 2000· [2018] KEELC 4380 (KLR)

Aula Ali Aula & 2 others v Katana Shungu & 2 others [2018] KEELC 4380 (KLR)

Environment and Land Court
23 February 2018
AOA. Omollo
2,345 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ruled that landowners cannot evict occupants who were allowed onto the land and have lived there for over twelve years.

What this practically means

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Executive summary

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The plaintiffs, trustees of the Wakf of Mdigo Bin Tabibu Mwana Juma & others appointed in 1995, sued three defendants for a mandatory injunction to stop trespass and remove temporary structures, or in the alternative eviction, from Sub-Division Plot No. 2349/III/MN, plus costs. They alleged the defendants were permitted to build temporary huts on payment of Kshs 300 monthly rent, failed to pay, and became trespassers. The defendants denied trespass, contending they and their parents had lived on the land for decades - the 1st defendant from 1959, the 2nd from birth (his father lived, died and was buried there), and the 3rd from 1970 by permission of a family member. The 1st defendant also pleaded limitation under section 7 of the Limitation of Actions Act. The court found the property registered in the trustees' names but held that the defendants' original entry was permissive and therefore not trespass; the uncorroborated rent agreement claim contradicted the trespass theory; and the burden of proving that the permission was lawfully determined lay on the plaintiffs, who failed to discharge it. The court further held that the claim, brought over twelve years after the right accrued, was barred by section 7, and that the plaintiffs' long acquiescence created a constructive trust in favour of the defendants that indefeasibility of title could not defeat. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether the defendants were trespassers on the suit land

Holding

No. Their initial entry was with the permission of the plaintiffs or their predecessors in title, so it was not unlawful and did not constitute trespass.

Reasoning

The plaintiffs' own evidence established that each defendant entered and occupied the land with the consent of the plaintiffs or those through whom they claimed, with no time limits or conditions. The alleged rental agreement of Kshs 300 per hut was uncorroborated and contradicted the trespass claim. The burden lay on the plaintiffs to show what changed the permissive occupation into unlawful possession, and they failed to discharge it.

p. 2
02

Whether the plaintiffs' claim for eviction was barred by limitation

Holding

Yes. The defendants had occupied for well over twelve years, so section 7 of the Limitation of Actions Act barred the claim and a constructive trust arose in the defendants' favour.

Reasoning

The 1st defendant entered in 1959 and built a house in the 1970s; the 2nd was born on the land where his father lived, died and was buried; the 3rd was allowed to build in 1970. The plaintiffs, appointed trustees only in 1995, produced no evidence that the creators of the Wakf ever asked the defendants to leave. Indefeasibility of title could not defeat occupation exceeding twenty years.

p. 3

Legal principles established

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  • Where initial occupation of land is permissive, subsequent possession does not become trespass unless the permission is lawfully determined
  • A registered owner cannot evict occupants who have been on land for over twelve years; long occupation creates a constructive trust and the claim is barred by section 7 of the Limitation of Actions Act
  • The burden of proof lies on the party who wishes the court to believe the existence of a fact and does not shift

Court orders

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  1. 1.Plaintiffs' suit dismissed with costs to the defendants

Authorities

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Legislation

  • Evidence Actsection 107
  • Limitation of Actions Actsection 7

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Aula Ali Aula & 2 others v Katana Shungu & 2 others [2018] KEELC 4380 (KLR)", Case Analysis (2018). ELC Civil Suit No. 583 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4380/eng@2018-02-23

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