Nkya v Awadh & another (Environment & Land Case 145 of 2016) [2022] KEELC 2248 (KLR)

The court traced the root of the title: the original Plot No. 487 was held in tenancy in common by Mohamed Mahfudh Awadh, Hussein Kabilia and Shaban Swedi Nkya, each holding distinct shares. A partition application signed by all co-owners and registered at the Land Registrar's office subdivided the parcel, allocating Plot 739 to Shaban Swedi Nkya. The certificate of title issued to the Plaintiff on 25th February 2011, together with an official search of the same date, confirmed individual ownership. Under sections 24(a) and 26(1) of the Land Registration Act, such registration vests absolute and indefeasible title challengeable only on fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme, none of which was established.

PW2 Halid Abass, the surveyor who surveyed Plot 739, concluded there was an encroachment of a wall onto the plot. The court was satisfied on the Plaintiff's evidence that the 1st Defendant built the intruding perimeter wall. Such entry and construction without the Plaintiff's permission constituted trespass contrary to section 3(1) of the Trespass Act. The 2nd Defendant never filed pleadings and did not attend court, so no defence was offered. The 1st Defendant's allegation that something was wrong with the survey and subdivision did not displace the registered title, as no fraud or misrepresentation to which the Plaintiff was party was proved.

Although trespass was established and the 1st Defendant's unauthorized entry and occupation deprived the Plaintiff of the use and quiet enjoyment of the property, the Plaintiff did not attach evidence of the value of the property before and after the trespass, or the damage occasioned by the perimeter wall. Damages being unquantified and unproved, the court declined to award general damages, but granted eviction and a permanent injunction instead.

The 1st Defendant asserted that he inherited half of the original parcel and that the Plaintiff, having bought only a quarter share from Naima Mbarak Islam, received 0.0080 Ha rather than 0.0114 Ha, and that something was not right with the survey and subdivision. However, he admitted he could not ascertain whether it was fraudulently done or a mistake. The court found the counterclaim unproved, particularly as the registered partition by the co-owners and the Plaintiff's certificate of title stood unrebutted by proof of fraud, misrepresentation, illegality or corrupt scheme under section 26(1) of the Land Registration Act.