Shamsher Kenya Limited v Fayard Abdulrazak Sheikh, Commissioner of Lands, District Lands Registyrar, Kilifi District, Attorney General, Mwenda Kadenge Jefwa, Stephen Kiramana Ilongi, National Land Commission & Estate of Benjamin Raphael Ndubai (Environment & Land Case 139 of 2011 & Civil Case 71 of 2008 (Consolidated)) [2020] KEELC 2410 (KLR)
The bottom line
#A Kilifi landowner who didn't show up to court lost the fight for a prime plot because he couldn't prove how he got his title.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved ownership of Plot No. Kilifi/Jimba/332
The Plaintiff proved its title. Certificates of Official Search showed the property registered to Benjamin Raphael Ndubai from 1992 and to the Plaintiff from 16th July 2002, supported by a letter from the Chief Land Registrar confirming the Plaintiff as true owner
The Court relied on official searches of 2002 showing prior registration in Ndubai's name and transfer to the Plaintiff, the sale agreement by Ndubai's personal representatives backed by a grant of letters of administration, and the Chief Land Registrar's letter of 29th October 2014 confirming the Plaintiff as rightful owner. The Land Registrar's testimony contradicted his own office's records and was disbelieved.
Whether the 1st Defendant's allotment and lease were valid
The allotment and lease were not proved to be genuine. The receipts exhibited showed payment by a third party, Gideon Mungaro, for multiple plots, and the 1st Defendant gave no evidence explaining his acquisition
The 1st Defendant claimed he made all requisite payments, but all receipts indicated Gideon Mungaro paid Kshs 203,765/- for several plots including Plot No. 332 on the same date. The Land Registrar's file contained no pre-2010 records, and his own office's letter contradicted his testimony. Having not testified, the 1st Defendant could not explain how registration in his name occurred.
The fate of the consolidated adverse possession claim
The Originating Summons was treated as abandoned since none of the parties appeared after consolidation and it was unclear they were aware of it
Following the consolidation order of 22nd July 2013, neither the Applicant nor the Respondents in the Originating Summons participated in the proceedings. Given the uncertainty whether they were aware of the consolidation, the Court declined to determine the adverse possession claim and considered it abandoned.
Legal principles established
#- A party who alleges title must prove the root of his title; where the record shows a prior registered proprietor and the defendant adduces no evidence explaining his registration, the rival title fails
- A claimant who does not testify or call evidence risks having his claim dismissed or deemed abandoned
Court orders
#- 1.The Originating Summons in Malindi HCCC No. 71 of 2008 is considered abandoned
- 2.The 1st Defendant's Counterclaim is dismissed
- 3.Judgment is entered for the Plaintiff as prayed in the Plaint, including declarations that the 1st Defendant has no lawful right or interest in the suit property and that the Letter of Allotment dated 26th August 2010 and the lease dated 17th September 2010 are null and void
- 4.The Plaintiff shall have the costs of the suit as well as of the Defendant's Counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shamsher Kenya Limited v Fayard Abdulrazak Sheikh, Commissioner of Lands, District Lands Registyrar, Kilifi District, Attorney General, Mwenda Kadenge Jefwa, Stephen Kiramana Ilongi, National Land Commission & Estate of Benjamin Raphael Ndubai (Environment & Land Case 139 of 2011 & Civil Case 71 of 2008 (Consolidated)) [2020] KEELC 2410 (KLR)", Case Analysis (2020). Malindi HCCC No. 51 of 2011 (consolidated with Malindi HCCC No. 71 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2410/eng@2020-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.