Seif Said Busaidy & another v Board, Likoni Constituency Development Fund [2019] KEELC 943 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a registered title is near-unbeatable proof of ownership, andtrespassers must pay damages even without proven loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs are the lawfully registered proprietors of the suit property
Yes - the certificate of title (P.exh 4) confirms registration in the Plaintiffs' names and there was no evidence of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition of the title.
Section 26(1) of the Land Registration Act renders the certificate of title prima facie evidence of absolute and indefeasible ownership, subject only to challenge on fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. No such evidence was tendered against the Plaintiffs.
Whether the Defendant trespassed into the suit property
Yes - the Defendant entered on 5th March 2015 and constructed a road without the Plaintiffs' consent; the unchallenged evidence proves unlawful encroachment.
Section 24(1) of the Land Registration Act vests absolute ownership and associated rights of exclusive use, possession and enjoyment in the registered proprietor, free from interference by third parties save with consent. The 1st Plaintiff's uncontroverted testimony described bulldozers paving a road through the land, corroborated by photographs, establishing trespass on a balance of probabilities.
Whether the Plaintiffs are entitled to the reliefs sought
Yes - a permanent injunction and general damages of Kshs. 100,000.00 (comparable to the award in Ntukusoi Ole Letiria) plus costs and interest were granted.
The claim was undefended after interlocutory judgment entered in default of appearance on 21st December 2016, and the suit proceeded by formal proof on 2nd April 2019. The Plaintiffs' evidence, including title, probate, confirmation of grant, photographs and demand notice, was uncontroverted, and counsel's submissions comparing the damages award in Ntukusoi Ole Letiria were unopposed.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, or illegal/unprocedural/corrupt acquisition (section 26(1) Land Registration Act).
- Trespass is actionable per se; once trespass is established no proof of damage is necessary for an award of general damages.
Court orders
#- 1.A permanent injunction restraining the Defendant, their servants or agents, from wrongfully and illegally trespassing and/or constructing upon and/or dealing in any manner with TITLE NUMBER MOMBASA/MAINLAND SOUTH/BLOCK II/52.
- 2.General damages for trespass of Kshs. 100,000.00.
- 3.Costs and interest of the suit to the Plaintiffs.
- Jurisdiction invoked
- Original civil jurisdiction over land claims (plaint for injunction and damages for trespass); Land Registration Act, sections 24(1) and 26(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seif Said Busaidy & another v Board, Likoni Constituency Development Fund [2019] KEELC 943 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/943/eng@2019-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.