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ELCAllowedEnvironment & Land Case 6 of 2017· [2022] KEELC 2875 (KLR)

Bashir v Doka & 2 others (Environment & Land Case 6 of 2017) [2022] KEELC 2875 (KLR)

Environment and Land Court
30 May 2022
MOMogeni
2,084 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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By a plaint dated 3 January 2017 the plaintiff, Mohammad Rajab Bashir, sued the defendants jointly and severally seeking a permanent injunction, a declaration that he is the sole and absolute owner of Plot No. 82 Kibera-Makina, Nairobi, a demolition order against structures erected by the defendants, costs and interest. The plaintiff claimed ownership through inheritance from his late father, Rajab Bashir Marjan, a Nubian ex-Sudanese soldier settled on the land by the British colonial administration in the 1930s, and alleged that the 1st and 2nd defendants in August-September 2016, and the 3rd defendant from 1 December 2016, encroached on portions of the plot and began constructing permanent structures. The defendants were served on numerous occasions, as evidenced by several affidavits of service, but never entered appearance or filed a defence. The suit proceeded to formal proof. The plaintiff adopted his witness statement and produced exhibits including a permit, grant ad litem, confirmed grant, shamba pass, certificate of discharge and IR 14908 communal title. Two neighbouring witnesses corroborated his inheritance. Applying Sections 107 and 109 of the Evidence Act and Order 2 Rule 11(1) of the Civil Procedure Rules, and relying on Shaneebal, KPLC v Gachoka and Gichinga Kibutha, the court held that uncontroverted evidence must still be interrogated, but found the plaintiff's evidence credible, unchallenged and sufficient to prove ownership and trespass on a balance of probabilities. Judgment was entered for the plaintiff: a permanent injunction, a declaration of sole ownership, a demolition order effective within 30 days, police supervision of implementation, and costs with interest.

Key legal issues

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01

Whether uncontroverted evidence in formal proof automatically proves a claim

Holding

No - the plaintiff must still discharge the burden of proof on a balance of probabilities; the court must interrogate unchallenged evidence.

Reasoning

Relying on Sections 107 and 109 of the Evidence Act and on Shaneebal Ltd, KPLC v Gachoka and Gichinga Kibutha, the court held that ex parte evidence is not automatic proof. The court nonetheless found the plaintiff's unchallenged evidence credible and sufficient.

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02

Whether the plaintiff proved ownership of Plot No. 82 and the defendants' trespass

Holding

Yes - the plaintiff proved ownership through inheritance from Rajab Bashir Marjan and proved the defendants' trespass on a balance of probabilities.

Reasoning

The court relied on the shamba pass, certificate of discharge, IR 14908 communal title, grant of letters of administration ad litem and confirmed grant. The defendants never entered appearance or filed a defence, so under Order 2 Rule 11(1) their non-traversal amounted to admission, making their entry an illegality.

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Legal principles established

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  • A plaintiff bears the burden of proving his case on a balance of probabilities even where the evidence is uncontroverted; the court must still interrogate unchallenged evidence.
  • Allegations of fact in a pleading not traversed by the opposing party are deemed admitted.

Court orders

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  1. 1.Permanent injunction restraining the defendants, their agents, employees, servants or any person claiming through them from entering, building, constructing, alienating or interfering with Plot No. 82 Kibera-Makina area, Nairobi
  2. 2.Declaration that the plaintiff is the sole and absolute owner of Plot No. 82 Kibera-Makina Area, Nairobi
  3. 3.Demolition order against the defendants for all illegal, unlawful and unauthorized structures within the next 30 days
  4. 4.The OCS of Kibra Police Station to supervise implementation of the judgment
  5. 5.Costs and interest of the suit from the date of judgment

Authorities

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Legislation

  • Evidence ActSections 107, 109
  • Civil Procedure Rules 2010Order 2 Rule 11(1)

Cases cited (4)

  • Shaneebal Limited Vs County Government of Machakos
    (2018) eKLR
  • Karuru Munyororo Vs Joseph Ndumia Murage & Another
    Nyeri HCCC No. 95 of 1988
  • Kenya Power & Lighting Company Limited Vs Nathan Karanja Gachoka & Another
    [2016] eKLR
  • Gichinga Kibutha Vs Caroline Nduku
    (2018) eKLR
Jurisdiction invoked
Original civil jurisdiction over land claims (unstated in 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, "Bashir v Doka & 2 others (Environment & Land Case 6 of 2017) [2022] KEELC 2875 (KLR)", Case Analysis (2022). Environment & Land Case 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2875/eng@2022-05-30

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