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ELCPartially AllowedMalindi HCCC No. 51 of 2011 (consolidated with Malindi HCCC No. 71 of 2008)· [2020] KEELC 2410 (KLR)

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)

Environment and Land Court
27 May 2020
4,654 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, Shamser Kenya Ltd, sued Fayard Abdulrazak Sheikh and the Commissioner of Lands, the District Land Registrar Kilifi and the Attorney General, seeking declarations that it is the lawful proprietor of Plot No. Kilifi/Jimba/332 and that the Letter of Allotment dated 26th August 2010 and Certificate of Lease issued to the 1st Defendant were fraudulently and irregularly granted, together with their cancellation, demolition of the 1st Defendant's constructions and a permanent injunction. The 1st Defendant counterclaimed, asserting he was lawfully registered on 29th September 2010 and seeking cancellation of the Plaintiff's title. This suit was on 22nd July 2013 consolidated with Malindi HCCC No. 71 of 2008, an Originating Summons by Mwenda Kadenge Jefwa claiming title by adverse possession since 1994. At trial the Plaintiff called three witnesses, including a forensic document examiner, while the 1st Defendant called no evidence and the State defendants called the Land Registrar. The Court found Certificates of Official Search showing registration to Benjamin Raphael Ndubai from 1992 and to the Plaintiff from 16th July 2002, a sale by Ndubai's personal representatives under a grant of letters of administration, and a Chief Land Registrar's letter confirming the Plaintiff as true owner. The Land Registrar's contrary testimony was disbelieved, and the receipts exhibited showed payment by one Gideon Mungaro rather than the 1st Defendant, who did not testify. Judgment was entered for the Plaintiff as prayed, the Counterclaim dismissed and the adverse possession summons deemed abandoned. Costs were awarded to the Plaintiff for both the suit and the Counterclaim.

Key legal issues

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01

Whether the Plaintiff proved ownership of Plot No. Kilifi/Jimba/332

Holding

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

Reasoning

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.

p. 9
02

Whether the 1st Defendant's allotment and lease were valid

Holding

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

Reasoning

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.

p. 9
03

The fate of the consolidated adverse possession claim

Holding

The Originating Summons was treated as abandoned since none of the parties appeared after consolidation and it was unclear they were aware of it

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Originating Summons in Malindi HCCC No. 71 of 2008 is considered abandoned
  2. 2.The 1st Defendant's Counterclaim is dismissed
  3. 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. 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

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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, "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.