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ELCPartially AllowedNot stated in the judgment (Mombasa Environment and Land Court suit arising from plaint dated 18th October 2016)· [2019] KEELC 3422 (KLR)

Islam Mohamed Faraj & another v Adna Salim Faraj & 9 others [2019] KEELC 3422 (KLR)

Environment and Land Court of Kenya
6 May 2019
CYC.K. Yano
3,213 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court upheld a Mombasa title deed, ordered occupiers to leave within 60 days and pay Kshs.1 million in trespass damages.

What this practically means

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Executive summary

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The plaintiffs, brothers and registered proprietors of MSA/BLOCK XV/319 in Mombasa, sued the children and widow of their late uncle, Salim Faraj Said, seeking eviction, vacant possession, a permanent injunction, damages for trespass, and costs, alleging the defendants trespassed from about 2010 and refused to vacate. The defendants denied trespass, asserting that Salim Faraj bought half the property in 1977 for his mother, that they are entitled to a half undivided share, and that the plaintiffs fraudulently procured registration of the entire property. By counter-claim they sought declarations and rectification of the register under Section 80 of the Land Registration Act read with Section 13 of the Environment and Land Court Act. The court framed five issues and held that the plaintiffs' title, issued on 2nd October 2009, was prima facie and indefeasible; the plaintiffs produced the agreement, grant, confirmation of grant and transfer showing lawful purchase of the remaining half share from the estate of Omar Karama El-Shabiby. The defendants produced no proof of purchase or ownership by Salim Faraj, no letters of administration confirming any share to them, and failed to distinctly prove fraud. The defendants had been permitted to occupy by the plaintiffs' father but became trespassers on refusing to vacate, and were found to be forceful occupants illegally collecting rent. General damages for trespass were assessed nominally at Kshs.1,000,000/= with interest, the plaintiffs' proposed Kshs.10,000,000/= having no evidential basis. Judgment was entered for the plaintiffs: vacant possession within 60 days, eviction in default, a permanent injunction, damages with interest, the counter-claim dismissed with costs, and costs of the suit to the plaintiffs.

Key legal issues

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01

Whether the plaintiffs are the lawful registered owners of the suit property

Holding

Yes - the plaintiffs acquired the property legally and through lawful means; their title is prima facie and indefeasible and was not impeached

Reasoning

The plaintiffs produced a title deed dated 2nd October 2009, a purchase agreement for the half share from the estate of Omar Karama El-Shabiby, the grant and certificate of confirmation of grant, and a transfer by personal representative. Sections 24, 25 and 26 of the Land Registration Act vest absolute ownership and protect the title from challenge absent fraud or illegal acquisition. No evidence of fraud or unlawful acquisition was led.

p. 4
02

Whether the defendants are entitled to half (1/2) share in the suit property and whether their counter-claim succeeds

Holding

No - the defendants failed to prove that Salim Faraj bought the property for his mother or that they own half a share; the counter-claim was dismissed

Reasoning

The defendants produced no document proving ownership or purchase by Salim Faraj; the agreement they produced referred to a temporary house only. There were no letters of administration confirming any share to them. The allegation of fraud against the plaintiffs was not distinctly proved, and the defendants or those they claim from were not shown to have been parties to the earlier HCCC No.124 of 2001 whose settlement preceded the plaintiffs' title.

p. 4
03

Whether the defendants are trespassers and what damages are payable

Holding

The defendants entered with permission but became trespassers upon refusal to vacate; general damages of Kshs.1,000,000/= awarded as a nominal sum

Reasoning

The plaintiffs proved the defendants' forceful occupation and illegal rent collection after demand to vacate. Damages for trespass are measured by the diminution in value or cost of restoration, whichever is less, but the plaintiffs adduced no evidence of rent collected or expected rent, making assessment difficult; the Kshs.10,000,000/= proposed had no evidential basis, so a nominal award was made.

p. 4

Legal principles established

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  • A title deed is prima facie proof of ownership of land
  • Fraud must be distinctly proved by the party alleging it
  • A title may be challenged only on ground of fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme
  • The measure of damages for trespass is the difference in the value of the plaintiff's property immediately after the trespass or the costs of restoration, whichever is less

Court orders

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  1. 1.The defendants ordered to vacate and deliver vacant possession of TITLE NO. MOMBASA/BLOCK XV/319 within 60 days from service of the decree
  2. 2.In default of compliance, the plaintiffs entitled to an order of eviction for the forceful removal of the defendants, their agents and/or servants upon application
  3. 3.A permanent order of injunction restraining the defendants from remaining on or continuing in occupation of the suit property
  4. 4.The plaintiffs awarded Kshs.1,000,000/= general damages for trespass with interest at court rates from the date of judgment until payment in full
  5. 5.The defendants' counter-claim dismissed with costs to the plaintiffs
  6. 6.The plaintiffs to have the costs of the suit

Authorities

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Legislation

  • Registered Land Act Cap 300 (repealed)Section 32(2)
  • Registered Land Act Cap 300 (repealed)Section 37(1)
  • Land Registration Act, 2012Section 24
  • Land Registration Act, 2012Section 25(1)
  • Land Registration Act, 2012Section 26
  • Land Registration ActSection 80
  • Environment and Land Court ActSection 13
Jurisdiction invoked
Original jurisdiction over land disputes; Environment and Land Court Act, Section 13 (invoked by defendants in their counter-claim)

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, "Islam Mohamed Faraj & another v Adna Salim Faraj & 9 others [2019] KEELC 3422 (KLR)", Case Analysis (2019). Not stated in the judgment (Mombasa Environment and Land Court suit arising from plaint dated 18th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3422/eng@2019-05-06

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