Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedOriginating Summons dated 29th March 2010 (Plot No. 309 Malindi)· [2019] KEELC 2101 (KLR)

Abud Mohamed Abud v Twahiya Mohammed Bin Abdullah [2019] KEELC 2101 (KLR)

Environment and Land Court
30 July 2019
JOJ.O. Olola
948 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a landowner's claim to evict a family that had occupied land since 1943 under an old sale agreement.

What this practically means

#

Executive summary

#
By an Originating Summons filed on 29th March 2010, Abud Mohamed Abud, an heir of the Estate of Said Bin Omar, sought determinations concerning Plot No. 309 Malindi (60.35 acres), including whether the late Esha Said Abdalla was an heir of Said Bin Omar as established in Mombasa Kadhi's Court Succession Cause No. 55 of 2009, whether her heirs were entitled to a third of the suit property (20.11 acres), and whether Twahiya Mohammed Abdalla unlawfully occupied 7.5 acres of that share, with a claim for possession. The Respondent, in a Replying Affidavit, denied the accusations, averring that her father, the late Mohammed Bin Abdulla, had bought the 7.5-acre parcel by a Sale Agreement dated 2nd September 1943 and that she and her siblings were born and raised on it, having no interest in Plot No. 309. The matter proceeded by affidavit evidence, with submissions filed only by the Applicant. The court noted that the translated 1943 Arabic sale agreement showed the Respondent's father bought the land for Kshs 300/- with clear measurements and boundaries. The Applicant never denied the Respondent's long occupation since 1943, and the court inferred that his predecessors tolerated the family's presence because they knew of the sale. The court also observed the Applicant's Certificate of Ownership was issued on 19th January 1917. Finding no merit in the Originating Summons, the court dismissed it with costs to the Respondent.

Key legal issues

#
01

Whether the Respondent unlawfully occupies 7.5 acres belonging to the heirs of the Estate of Said Bin Omar

Holding

The claim failed; the Respondent's family occupied the land under a valid sale agreement dated 2nd September 1943, so her occupation is not unlawful

Reasoning

The translated Arabic sale agreement shows the Respondent's father bought the parcel for Kshs 300/- with clear measurements and boundaries. The Applicant did not deny the Respondent's long occupation since 1943, and the Applicant's own Certificate of Ownership dates to 1917. The court inferred the Applicant's predecessors knew of the sale and therefore tolerated the occupation.

p. 2
02

Whether the Applicant's claim of unlawful occupation was proved

Holding

Not proved; the burden was not discharged

Reasoning

The Applicant did not state when the Respondent entered the land or commenced occupation, and did not deny that the Respondent and her family had been on the land since 1943. With the sale agreement intact and unchallenged, the court found no merit in the Originating Summons and dismissed it.

p. 2

Legal principles established

#
  • Long tolerated occupation of land from 1943 onwards is consistent with, and best explained by, the existence of a sale agreement to the occupier's predecessor

Court orders

#
  1. 1.The Originating Summons is dismissed
  2. 2.Costs of the suit awarded to the Respondent
Jurisdiction invoked
Original civil jurisdiction over land disputes (Originating Summons proceedings)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abud Mohamed Abud v Twahiya Mohammed Bin Abdullah [2019] KEELC 2101 (KLR)", Case Analysis (2019). Originating Summons dated 29th March 2010 (Plot No. 309 Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2101/eng@2019-07-30

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