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ELCAllowedELC No. 68 of 2008· [2020] KEELC 2570 (KLR)

Thika Wax Works Limited v Lamech Omondi & 27 others (sued on their own behalf and in respective capacity on behalf of all Embakasi Dwellers occupying LR NO.9042/574 Embakasi Nairobi [2020] KEELC 2570 (KLR)

Environment and Land Court
7 May 2020
1,696 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ordered 28 Embakasi squatters off private land and to pay Kshs.5 million, because they could not prove 12 years of occupation needed to claim ownership.

What this practically means

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Executive summary

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Thika Wax Works Limited, registered owner since 1995 of LR No.9042/574 in Embakasi, sued 28 occupants in a representative suit for injunction and possession after they invaded the property in 2004 and began erecting structures. The defendants defended the suit by a preliminary objection that the claim was statute barred and by a claim of adverse possession, alleging occupation since 1980 under allocation by local elders. The court framed four issues: limitation, adverse possession, entitlement to the reliefs in the plaint, and costs. On limitation, the court held that the defendants bore the burden of proving occupation as at 1995; their photographs showed recently built and unfinished structures, and their credibility was destroyed by their role in a fraudulent 2008 City Court vesting scheme whereby Block Seven Developers Limited, associated with the 1st defendant and their witness, purported to acquire the property at a fictitious rates auction. Entry was found to have occurred in 2004, so the suit filed in 2008 was not statute barred. On adverse possession, the land was government land before 1995, when time could not run against the government; the defendants also acknowledged the plaintiff's title through the fraudulent purchase scheme, which defeats the plea. The defendants were therefore trespassers. The plaintiff's case was proved on a balance of probabilities, and general damages for trespass were assessed at Kshs.5,000,000/=. Judgment was entered for the plaintiff against the defendants jointly and severally in terms of the plaint dated 8th December 2009, delivered on 7th May 2020 by E. O. Obaga, J.

Key legal issues

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01

Whether the plaintiff's suit was statute barred

Holding

The suit was not statute barred; the defendants failed to prove occupation from 1980, having in fact invaded in 2004.

Reasoning

The defendants bore the burden of proving entry in 1980 to establish that the 12-year period expired before suit was filed in 2008. Their photographs showed recent and ongoing construction with no structure over a decade old. Their involvement in a fraudulent 2008 vesting scheme discredited their claim, and the 1st defendant declined to testify. Entry was found to be in 2004.

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02

Whether the defendants acquired the suit property by adverse possession

Holding

No. The defendants had not been in possession for the statutory period, and they had acknowledged the plaintiff's title.

Reasoning

Before 1995 the land was government land, so time could not run against the government; it could only run from 1995 when the plaintiff obtained title. The defendants entered in 2004, well short of twelve years before suit was filed in 2008. Further, their participation in a fraudulent sale scheme amounted to acknowledgement of the plaintiff's title, which defeats adverse possession.

p. 2
03

Whether the plaintiff was entitled to the reliefs in the plaint and damages for trespass

Holding

Yes. The defendants were trespassers and the plaintiff proved its case on a balance of probabilities, earning general damages of Kshs.5,000,000/=.

Reasoning

With adverse possession rejected, the defendants' occupation had no lawful basis and they were trespassers. Trespass was proved, and damages follow as a matter of course. The plaintiff was deprived of its property from 2004, over two decades, justifying general damages assessed at Kshs.5,000,000/=.

p. 2

Legal principles established

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  • It is upon the party asserting that a suit is statute barred to adduce evidence establishing that the limitation period had run
  • Adverse possession may be raised by defence or counter-claim and not only by originating summons
  • Time does not run against the government; before the land was allocated to the plaintiff, no adverse possession could accrue
  • A person who acknowledges the owner's title cannot claim the same land through adverse possession
  • Once trespass is proved, damages follow as a matter of course

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendants jointly and severally in terms of the plaint filed on 8th December 2009
  2. 2.General damages for trespass assessed at Kshs.5,000,000/= awarded to the Plaintiff

Authorities

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Legislation

  • Evidence ActSection 107(1)

Cases cited (4)

  • Gulam Mariam Noordin Vs Julius Charo Karisa
    Civil Appeal No.26 of 2015
  • Wabala Vs Okuman
    (1997) LLR 609 (CAK)
  • Bayete Co.Ltd Vs Kosgey
    (1998) LLR 813
  • Council of Nairobi Vs Thika Wax Works Limited (Civil Case No. 11 of 2008, City Court)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (representative suit following leave granted on 2nd July 2008)

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, "Thika Wax Works Limited v Lamech Omondi & 27 others (sued on their own behalf and in respective capacity on behalf of all Embakasi Dwellers occupying LR NO.9042/574 Embakasi Nairobi [2020] KEELC 2570 (KLR)", Case Analysis (2020). ELC No. 68 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2570/eng@2020-05-07

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