Miliki Limited v Ali & 3 others (Environment & Land Case E022 of 2020) [2022] KEELC 124 (KLR)
The bottom line
#A registered Kenyan landowner can win eviction at an early stage if occupants cannot prove long occupation or fraud.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for a temporary injunction
Yes. The Plaintiff produced certificates of lease showing ownership and traced its root to the registered owner of the original parcel, while no evidence of fraud or of the Defendants' long occupation was placed before the Court.
The Plaintiff produced the certificates of lease for the three suit properties and demonstrated that the land was a subdivision of Lamu Island Block II/119 registered in 1978 in the name of Ahmed Said Ahmed Bujra, from whom it derived its lease. The Defendants alleged fraudulent acquisition of public land but adduced no evidence of such fraud, and did not explain why, if the land were public, they were constructing structures on it. The County Surveyor's report confirmed recent encroachment by squatters and new structures. Accordingly the Plaintiff demonstrated ownership and infringement of a right.
Whether the Defendants' alleged long occupation and claim of public land displaced the title
No. The allegation of decades-long occupation was unsupported; photographs showed newly built, incomplete structures and the County Surveyor's report confirmed recent intrusion.
The Defendants asserted occupation for 18 years, 9 years with County Government permission, and decades of public use, but placed little evidential support before the Court. Photographs from both sides showed newly built, half-complete structures, and the Lamu County Surveyor's letter of November 11, 2020 to the Directorate of Criminal Investigations described make-shift structures, upcoming permanent structures and a well as recent encroachments. The Court found the Defendants were recent entrants and their public-land defence unsupported.
Whether a mandatory injunction could issue at the interlocutory stage
Yes, special and exceptional circumstances were demonstrated warranting the mandatory orders of eviction and vacant possession sought.
Although mandatory injunctions at interlocutory stage require special circumstances, the Court was satisfied that the Defendants had encroached and were continuing to erect temporary and permanent structures, as shown by the County Surveyor's report and the photographs. Unless restrained, the Plaintiff stood to suffer actual, substantial and demonstrable injury not adequately compensable in damages. The Court therefore found special and exceptional circumstances justifying the mandatory orders in Prayers 3 and 4 of the Motion.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme.
- The conditions for an interlocutory injunction are a prima facie case with probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience.
Court orders
#- 1.Interlocutory injunction restraining the Defendants from trespassing, constructing, fencing, drilling boreholes, clearing, subdividing, selling, letting or otherwise dealing with Lamu/Blocks 2/347, 2/348 and 2/350 (Prayer 3 allowed)
- 2.Mandatory order of eviction and/or vacant possession of the suit properties in favour of the Plaintiff (Prayer 4 allowed)
- 3.Defendants given 30 days from the date of the ruling to remove their structures from the suit land, failing which the structures may be forcefully removed as contemplated under Prayer 5
- 4.Plaintiff awarded the costs of the application
- Jurisdiction invoked
- Not expressly stated; original civil jurisdiction over land and injunction under Order 40 of the Civil Procedure Rules and the Land Registration Act 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miliki Limited v Ali & 3 others (Environment & Land Case E022 of 2020) [2022] KEELC 124 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/124/eng@2022-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.