Hamisi Mohamed Bakari & 5 others v Thomas Sadiki & 3 others [2020] KEELC 3170 (KLR)
The bottom line
#A Mombasa court ordered land occupants to vacate within 45 days after an unchallenged survey report proved they had built on someone else's property.
What this practically means
#Executive summary
#Key legal issues
#Ownership of the suit property
The plaintiffs proved they are the registered owners of LR NO. 126/V/MN, and this was not disputed by the defendants
The plaintiffs produced letters of administration, a confirmed grant and a title deed showing registration in their names. The defendants admitted the plot belongs to the plaintiffs, and the 1st and 2nd defendants admitted owning the adjacent Plot 128/V/MN. Registration was therefore established on a balance of probabilities.
Encroachment and the boundary dispute
The defendants encroached on the plaintiffs' land, approximately 1.66 acres, and the counter-claim based on Plot 128 fails
Section 18(2) of the Land Registration Act bars the court from entertaining boundary disputes unless boundaries have been determined by the Land Registrar. The dispute was referred to the Land Registrar but no report was prepared because the defendants impugned the surveyors' integrity. The plaintiffs then obtained a private survey report confirming encroachment of 1.66 acres by a barbed wire fence and structures from Plot 128. The defendants produced no contradicting report. The court found the report authentic and conclusive, so the defendants' actions occurred on the plaintiffs' land and their counter-claim was founded on a mistaken belief.
Remedies for trespass
As registered owners, the plaintiffs are entitled to protection from interference: eviction, injunction and general damages
Having proved ownership and trespass on a balance of probabilities, the plaintiffs were entitled to vacant possession with demolition of illegal structures, a permanent injunction, and general damages for trespass, which the court assessed at Kshs.200,000 against the defendants jointly and severally.
Legal principles established
#- Where a boundary dispute has been referred to the Land Registrar but no report is prepared due to a party's objections, a private surveyor's report stands uncontradicted in the absence of contrary evidence
- A party alleging encroachment bears the evidential burden of producing contradicting evidence to an adverse survey report
Court orders
#- 1.The defendants and/or their agents, servants or other persons claiming through them to vacate and deliver possession to the plaintiffs and to demolish and/or pull down all the illegal structures standing on LR. NO 126/V/MN within 45 days from the date of service of the decree; in default the plaintiffs entitled to an order of eviction for forcible removal of the defendants and demolition of the illegal structures under supervision of an authorized police officer from the nearest police station
- 2.A permanent injunction restraining the defendants from encroaching, trespassing, entering upon or remaining in possession or continuing in occupation or putting up structures or in any manner dealing with or interfering with the suit property
- 3.Kshs.200,000/= as general damages for trespass
- 4.The 1st and 2nd defendants' counter-claim is dismissed
- 5.The plaintiff shall have costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (not expressly stated; suit by plaint under the ELC's jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamisi Mohamed Bakari & 5 others v Thomas Sadiki & 3 others [2020] KEELC 3170 (KLR)", Case Analysis (2020). Not stated in the judgment (plaint dated 14th August 2015, filed 25th August 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3170/eng@2020-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.