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ELCAllowedELC Case No. 124 of 2016· [2019] KEELC 4674 (KLR)

Bakari Said Majeni v Shafi Said Mwanyota & another [2019] KEELC 4674 (KLR)

Environment and Land Court
15 February 2019
AOA. Omollo
825 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, Bakari Said Majeni, sued Shafi Said Mwanyota and Mohamed Suleiman Mwadzungwe claiming he is the registered owner of L.R. Kwale/Ukunda/4806, which the defendants allegedly entered in 2007, cultivating and erecting structures without his consent. He sought eviction, a permanent injunction, costs and interest. The defendants entered appearance in person, and later through advocate Steve Kithi for the 1st defendant, but never filed a defence despite being granted time under Order 11, and the matter proceeded ex parte on 12 July 2018. The plaintiff testified that he inherited the land; that the 1st defendant, his brother, had been allocated a separate plot in the Ukunda Settlement Scheme; and that the distribution of the estate of Saidi Ali Majeni (deceased) was effected by the Kadhi's Court in Cause No. 36 of 2007. He produced his title deed issued on 30 April 2013 upon subdivision of the original title Kwale/Ukunda/1043, together with the Kadhi's Court proceedings. The plaintiff's authorities were cited, but the court found the facts in Silas Bartonjo Kiptala distinguishable as they concerned land sale without Land Control Board consent. Finding the plaintiff's uncontroverted documents established ownership, the court held that under sections 24 and 25 of the Land Registration Act the plaintiff is entitled to exclusive use and occupation, and any unauthorised activity amounts to trespass. Judgment was entered as prayed: the defendants were given 45 days to remove their structures, failing which the plaintiff may evict them at their costs; a permanent injunction was issued; and costs were awarded to the plaintiff.

Key legal issues

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01

Rights of a registered proprietor under the Land Registration Act

Holding

A registered owner is entitled to exclusive use and occupation of the land and any unauthorised activity by another person amounts to trespass

Reasoning

The plaintiff produced an uncontroverted title deed for Kwale/Ukunda/4806 issued on 30 April 2013 upon subdivision of the original title Kwale/Ukunda/1043. Section 24 and 25 of the Land Registration Act vest in the registered proprietor absolute rights of use and occupation, so the defendants' cultivation and structures without permission constituted trespass.

p. 2
02

Standard of proof in uncontroverted ex parte evidence

Holding

A plaintiff whose documentary evidence is uncontroverted proves his case on a balance of probabilities even where the case proceeds ex parte

Reasoning

The defendants entered appearance but never filed a defence despite being given time to comply with Order 11, and did not attend the hearing. The plaintiff's documents, including his title and the Kadhi's Court distribution records, were therefore uncontroverted, and the court was satisfied on a balance of probabilities.

p. 2

Legal principles established

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  • Under sections 24 and 25 of the Land Registration Act, a registered owner is entitled to exclusive use and occupation of the land, and any unauthorised activity thereon amounts to trespass

Court orders

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  1. 1.Judgment entered for the plaintiff as prayed in the amended plaint
  2. 2.Defendants ordered to remove their structures from Kwale/Ukunda/4806 within 45 days of the decree being served upon them
  3. 3.In default, the plaintiff at liberty to remove the defendants from his land at their costs
  4. 4.Permanent injunction issued restraining the defendants from dealing with the suit land
  5. 5.Costs of the suit awarded to the plaintiff

Authorities

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Legislation

  • Land Registration Actsections 24 and 25
  • Land Control Act Cap 302general
  • Civil Procedure RulesOrder 11

Cases cited (2)

  • Thomas Maseki Maera vs Kimji Pate
    Nairobi HCCC No 330 of 2012
  • Silas Bartonjo Kiptala vs James Kipkemboi Murei
    Eldoret ELC Case No 693 of 2012
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - jurisdiction over land claims

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, "Bakari Said Majeni v Shafi Said Mwanyota & another [2019] KEELC 4674 (KLR)", Case Analysis (2019). ELC Case No. 124 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4674/eng@2019-02-15

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