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ELCAllowedELC Case No. 108 of 2015· [2021] KEELC 3985 (KLR)

Stephen Abu Mukhobi v Daniel Oria Odhiambo & another [2021] KEELC 3985 (KLR)

Environment and Land Court
18 March 2021
LKL. Komingoi
1,543 words in judgment
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The bottom line

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A Nairobi court confirmed that an allotment letter, lease and payment receipts can prove land ownership, and ordered trespassers to vacate within 60 days.

What this practically means

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Executive summary

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The plaintiff sued the defendants seeking a permanent injunction, vacant possession and costs in respect of Dandora IV Shop Plot No. 46822, alleging the defendants trespassed and began constructing a building on the plot around November 2014. The plaintiff relied on a letter of allotment dated 9th September 1993 from the then Nairobi City Commission, a 99-year lease with effect from 1st July 1993, payment receipts, approved development plans, a demand letter and photographs. The 1st defendant filed a statement of defence denying encroachment and disclaiming ownership, possession or occupation of the suit property; the 2nd defendant neither entered appearance nor filed a defence. At the hearing on 28th January 2020 neither defendant attended, and the matter proceeded exparte. The court framed three issues: ownership of the suit property, encroachment, and costs. It found the plaintiff's title unchallenged and proved by documentary evidence, applying Hassan Mohammed Haji vs Mohamed Keynan & Another on the obligation of a party to adduce all reasonably available evidence. The court found the defendants continued construction despite injunction orders of 22nd July 2015, and that the building was occupied by tenants who were not the plaintiff's. It held the defendants were trespassers and that the plaintiff had proved his case on a balance of probabilities. Judgment was entered jointly and severally against the defendants for a permanent injunction, vacant possession within sixty days with liberty to evict by lawful means in default, and costs borne by the defendants. Judgment delivered on 18th March 2021 by L. Komingoi, Judge.

Key legal issues

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01

Whether the plaintiff is the owner of the suit property

Holding

The plaintiff proved ownership of Dandora IV Shops Plot No. 46822 by way of the letter of allotment, lease agreement and payment receipts, none of which were challenged by the defendants.

Reasoning

The plaintiff produced an allotment letter dated 9th September 1993, a lease with the Nairobi City Commission for 99 years from 1st July 1993, and payment receipts. The 1st defendant's defence disclaimed any claim to the property, and the defendants neither attended court nor filed documents to challenge the plaintiff's title. The court relied on the principle that a party must present all reasonably available evidence to prove facts.

p. 2
02

Whether the defendants encroached on the suit property

Holding

The court found the defendants encroached on the plot, constructed a building despite injunctive orders of 22nd July 2015, and are trespassers.

Reasoning

The plaintiff testified that the defendants trespassed around November 2014 and continued construction even after the court issued injunction orders. Photographs showed the construction, and the building was occupied by tenants who were not the plaintiff's. The defendants did not attend court to rebut this evidence, squandering their opportunity to contest the claim.

p. 2
03

Costs of the suit

Holding

Costs follow the event and were awarded to the plaintiff against the defendants jointly and severally.

Reasoning

The court invoked section 27 of the Civil Procedure Rules giving it discretion over costs, applied the trite principle that costs follow the events, and since the plaintiff succeeded against both defendants, ordered the defendants to bear the costs of the suit.

p. 3

Legal principles established

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  • A party seeking a judgment or declaration of a legal right dependent on facts bears the legal obligation to adduce the evidence reasonably available to prove those facts.
  • Costs usually follow the event, and the court has discretion to award costs under section 27 of the Civil Procedure Rules.

Court orders

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  1. 1.A permanent injunction restraining the defendants from trespassing, entering into, encroaching or in any other way interfering with the plaintiff's quiet possession of Dandora IV Shops plot number 46822
  2. 2.The defendants ordered to give vacant possession of the suit plot within sixty (60) days from the date of the ruling, in default the plaintiff at liberty to use lawful means to evict them
  3. 3.Costs of the suit to be borne by the defendants

Authorities

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Legislation

  • Civil Procedure RulesSection 27

Cases cited (3)

  • Shadrack Kuria Kimani vs Stephen Gitau Nganga & Another
    [2017] eKLR
  • Stephen Gitau Nganga & Another
    [2017] eKLR
  • Hassan Mohammed Haji vs Mohamed Keynan & Another
    [2019] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over ownership, possession and trespass relating 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, "Stephen Abu Mukhobi v Daniel Oria Odhiambo & another [2021] KEELC 3985 (KLR)", Case Analysis (2021). ELC Case No. 108 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3985/eng@2021-03-18

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