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ELCPartially AllowedELC Case No. 274 of 2018· [2022] KEELC 1264 (KLR)

Robert Mwadime Ngolo & another v Henry Kalume Katana & 8 others [2022] KEELC 1264 (KLR)

Environment and Land Court
23 February 2022
1,525 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Mombasa court confirmed that a registered title certificate is conclusive proof of land ownership, ordering squatters to vacate but refusing unproven damages.

What this practically means

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Executive summary

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The Plaintiffs, registered proprietors of Subdivision No. 3063 (Original No. 1667/2) Section III Mainland North Mombasa contained in Certificate No. CR. 28186, sued nine Defendants seeking declarations that their title was lawful and that the Defendants' entry and construction on the land was unlawful trespass, orders for demolition of structures and clearing of debris, a permanent injunction, damages for trespass and costs. The Plaintiffs alleged that from 29 September 2018 the Defendants unlawfully entered the suit property, demolished a boundary wall, excavated and commenced construction, and repeated the acts on 11 October 2018 despite police complaints and intervention by the County Commissioner. The Defendants were served but neither attended court nor filed a defence; the suit proceeded undefended. PW1's evidence of trespass went unchallenged. Relying on Sections 24(a) and 26(1) of the Land Registration Act, and applying Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another (2013) eKLR, the court held that the Plaintiffs' title was absolute and indefeasible, challengeable only on proven fraud, misrepresentation or acquisition through an illegal, unprocedural or corrupt scheme, none of which the Defendants proved. The Plaintiffs' case was proved on a balance of probabilities. The court declared the Plaintiffs the lawful registered proprietors, declared the entry and structures unlawful trespass, ordered the Defendants to vacate within 60 days failing which eviction would issue, granted a permanent injunction against interference with the property, and declined damages for trespass as unproved. No orders as to costs were made because the suit was undefended. Judgment delivered at Mombasa on 23 February 2022 by N.A. Matheka, J.

Key legal issues

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01

Indefeasibility of the Plaintiffs' registered title

Holding

The Plaintiffs, as registered proprietors under Certificate No. CR. 28186, hold indefeasible title under Sections 24(a) and 26(1) of the Land Registration Act, which the Defendants did not challenge

Reasoning

The court found as a fact that the Plaintiffs were registered proprietors. Section 24(a) vests absolute ownership upon registration and Section 26(1) makes the certificate of title prima facie evidence of absolute and indefeasible ownership. Title may be challenged only on proven fraud or misrepresentation to which the proprietor is party, or where acquired illegally, unprocedurally or through a corrupt scheme. The Defendants filed no defence and adduced no evidence to displace the title.

p. 2
02

Trespass by the Defendants

Holding

The Defendants' unlawful entry, demolition of the boundary wall, excavation and construction on the suit property amounted to trespass; the evidence of PW1 was unchallenged

Reasoning

PW1 testified that the Defendants and their agents entered the suit property on 29 September 2018 without authority, demolished a boundary wall, excavated and erected structures. The Defendants, though served, neither attended court nor filed a defence, so the evidence stood unchallenged. On a balance of probabilities the court held the entry and continued presence of structures unlawful and declared them acts of trespass, directing vacation of the premises.

p. 2
03

Damages for trespass

Holding

Damages for trespass were not proved and were therefore not awarded

Reasoning

Although damages for trespass was among the reliefs sought, the court found that no loss and damage had been proved. The judgment contains no particularisation of quantified loss; the claim was undefended but unproven. The court declined the award and instead granted declaratory relief, an order to vacate with eviction in default, and a permanent injunction.

p. 2

Legal principles established

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  • Registration vests absolute ownership of land in the registered proprietor together with all rights and privileges appurtenant thereto
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on proven fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.Declaration that the Plaintiffs are the lawfully registered proprietors of the suit property
  2. 2.Declaration that the entry and putting up of structures by the Defendants on the suit property is unlawful
  3. 3.Declaration that continued existence of the structures amounts to trespass, with the Defendants to vacate within 60 days from the date of judgment, in default eviction order to issue
  4. 4.Permanent injunction restraining the Defendants from entering, using, occupying, leasing, transferring, charging, selling or otherwise dealing adversely with the suit property
  5. 5.No orders as to costs as the suit was undefended

Authorities

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Legislation

  • Constitution of Kenya, 2010Fundamental rights and rights of ownership of property (referred generally)
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)(a) and (b)

Cases cited (1)

  • Elijah Makeri Nyangw'ra -vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes) - not expressly quoted in the judgment

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, "Robert Mwadime Ngolo & another v Henry Kalume Katana & 8 others [2022] KEELC 1264 (KLR)", Case Analysis (2022). ELC Case No. 274 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1264/eng@2022-02-23

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