Omar Mohamed Kikarata v Sudi Hamisi [2019] KEELC 4294 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Proof of ownership of registered land at formal proof
The Plaintiff proved his ownership of the suit property on a balance of probabilities through his certificate of title, official search and documentary exhibits, entitling him to eviction and a permanent injunction
The plaintiff testified as the registered proprietor, produced his certificate of title issued on 19 November 2014 and an official search dated 13 November 2013, and adopted his witness statement and documentary list as exhibits. He showed he purchased the land from Matano Juma Mbaruku, the prior registered owner, and that the Defendant's green card was fraudulent and cancelled by the Land Registrar. The undefended claim therefore succeeded.
Justification for the Defendant's continued occupation
There was no justification for the Defendant's continued occupation, given prior dismissals of his claim and petition over the same land
The court considered the documents filed and found nothing to justify the Defendant remaining on the land. Counsel's submissions showed the Defendant's prior claim over the suit land had been dismissed with costs in High Court Mombasa ELC No. 66 of 2014 and his Petition No. 265 of 2014 struck out with costs, leaving him without any lawful basis to occupy the property.
Legal principles established
#- Where a defendant fails to file a defence and the matter proceeds to formal proof, a plaintiff who proves title to registered land on a balance of probabilities is entitled to eviction and injunction orders
Court orders
#- 1.Prayers (a), (b) and (c) of the plaint allowed, i.e. eviction of the Defendant from Plot No. KWALE/MKONGENI 'B'/295, police supervision of the eviction, and a permanent injunction restraining the Defendant from trespassing on, developing or entering the suit property
- 2.Defendant directed to surrender vacant possession of the suit property within 60 days of service of the decree
- 3.In default of surrender of possession, plaintiff to carry out the eviction exercise and the OCS Kwale Police Station to supervise to ensure law and order is maintained
- 4.Each party to meet their respective costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land parcels and eviction claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar Mohamed Kikarata v Sudi Hamisi [2019] KEELC 4294 (KLR)", Case Analysis (2019). Mombasa ELC suit re L.R No. Kwale/Mkongani 'B'/295 (Plaint filed 28 March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4294/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.