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ELCPartially AllowedCivil Suit 334 of 1996· [2023] KEELC 21635 (KLR)

Halal Brothers Limited (On their own behalf and on behalf of all the People squatting on plot number Kili/Kijipwa/48) v Rimba & 2 others

Environment and Land Court at Mombasa
7 November 2023
23,506 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~94 min to read original · ~4 min brief

The bottom line

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A Mombasa court confirmed a private buyer's title to disputed Kilifi land, dismissed squatters' claims, but gave them 90 days before lawful eviction.

What this practically means

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Executive summary

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In a suit pending for 27 years, the Environment and Land Court at Mombasa (L.L. Naikuni, J) determined competing claims over Plot Kilifi/Kijipwa/48 measuring approximately 19.89 hectares. The Plaintiff, Halal (Halai) Brothers Limited, claimed it purchased the land in 1996 for Kshs. 3,500,000 from the registered owner, Ranjan Madan Gopal Saini, and sought declaration of ownership, vacant possession, injunctions and eviction. The Defendants, sued as representatives of squatters, counterclaimed that the land formed part of the Kijipwa Settlement Scheme under which each family was to receive 2.5 acres, that the Plaintiff's title was fraudulently and irregularly acquired in collusion with government officials, and alternatively claimed title by adverse possession. After a site visit (locus in quo) revealing some 100 occupants, graves, schools and churches on the land, the Court framed four issues. It held the Plaintiff proved good, indefeasible title as a bona fide purchaser for value under Sections 24, 25 and 26 of the Land Registration Act and Article 40(1) of the Constitution. The Defendants failed to prove fraud to the required strict standard, produced no evidence of collusion, did not prove the settlement scheme claim, and their adverse possession claim was procedurally deficient and an afterthought. Trespass was established; the counterclaim was dismissed. The Court entered judgment for the Plaintiff, granted a permanent injunction, ordered lawful eviction under Section 152E of the Land Act within 90 days, and awarded general damages of Kshs. 10,000,000. Exceptionally, invoking social justice and the right to housing under Article 43, it alternatively directed the Government to consider compulsory acquisition of the land or the Defendants to purchase the portions they occupy. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Plaintiff proved good title to the suit land

Holding

The Plaintiff proved good, indefeasible title as a bona fide purchaser for value without notice

Reasoning

The Plaintiff produced the certificate of title, transfer documents, proof of payment of Kshs. 3,500,000.00, stamp duty receipts and official searches confirming registration. Under Sections 24, 25 and 26(1) of the Land Registration Act and Article 40(1) of the Constitution, the title is prima facie and indefeasible. The Defendants produced no empirical or documentary evidence of collusion or fraud against the Plaintiff.

02

Whether the Defendants proved the allegations of fraud and collusion in acquisition of the title

Holding

The Defendants failed to discharge the burden of proving fraud

Reasoning

Fraud must be distinctly pleaded and strictly proved. The Defendants relied only on assertions in pleadings; they produced no investigation report from the DCI land fraud unit, no proof that the predecessor was a Ministry of Lands employee, and did not summon the predecessor or land officials. Allegations of historical injustice were never pleaded, and parties are bound by their pleadings under Order 2 Rule 6.

03

Whether the Defendants proved title through the Kijipwa Settlement Scheme

Holding

The settlement scheme claim failed for want of proof

Reasoning

Although the Court accepted the land may have been under a settlement scheme, the Defendants bore the burden of proof. The documents they produced showed the parcels had already been alienated, sub-divided and allocated to individuals with titles issued in accordance with the law. They failed to summon settlement officials or produce a register of beneficiaries, survey map or area list.

p. 30
04

Whether the Defendants proved a claim of adverse possession

Holding

The adverse possession claim failed both procedurally and on the evidence

Reasoning

A claim under Section 38 of the Limitation of Actions Act must be brought by originating summons under Order 37 Rule 7 with a certified extract of title annexed. The Defendants' claim was made thinly in the defence and counterclaim. The Plaintiff's uncontroverted evidence was that the land was vacant and bushy at purchase, and the uncontroverted Tysons valuation report showed only a few semi-permanent structures by 2015; continuous uninterrupted possession for 12 years was not proved.

p. 34
05

Whether the Defendants committed trespass and what remedies flow

Holding

Trespass established; permanent injunction granted and general damages of Kshs. 10,000,000 awarded

Reasoning

Trespass is actionable per se. The Defendants entered and remained on private land without the consent of the registered occupier, erecting structures and cultivating. A permanent injunction fully determines the parties' rights after hearing. Although trespass was proved, the evidence did not enable precise quantification of loss, and the Court awarded Kshs. 10,000,000 as general damages.

p. 36
06

Whether eviction should issue and on what humanitarian conditions

Holding

Eviction ordered under Section 152E of the Land Act within 90 days, but tempered by social justice considerations

Reasoning

Guided by Article 43 (right to housing), the Satrose Ayuma jurisprudence on forced evictions and General Comment No. 7, the Court ordered a lawful eviction with notice, and in the alternative urged compulsory acquisition by the Government or purchase by the Defendants of the portions they occupy, to avoid rendering them destitute and homeless.

p. 39

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, save on grounds of fraud, misrepresentation, illegality or corrupt scheme
  • A registered proprietor whose root of title is challenged must go beyond the title instrument to prove legality of acquisition
  • Allegations of fraud must be specifically pleaded and strictly proved; something more than a mere balance of probabilities is required
  • Trespass to land is actionable per se and no proof of damage is necessary for an award of general damages
  • Adverse possession requires open, peaceful, exclusive and uninterrupted possession for at least 12 years, nec vi, nec clam, nec precario, and an application under Section 38 of the Limitation of Actions Act by originating summons

Court orders

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  1. 1.Judgment entered in favour of the Plaintiff as per the filed Further Amended Plaint against the 1st and 2nd Defendants jointly and severally
  2. 2.The Amended Defence and Counter Claim dated 25th March, 2021 dismissed for lack of merit
  3. 3.Declaration that Land Reference numbers Kijipwa/Kili/48 is legally and absolutely registered in the names of Halai Brothers Limited from 26th March, 1996 with indefeasible title under Article 40(1)(a) & (b) of the Constitution and Sections 24, 25 and 26 of the Land Registration Act
  4. 4.Order for peaceful and lawful eviction of the Defendants pursuant to Section 152E of the Land Act within Ninety (90) days, on or before 28th February, 2024
  5. 5.Permanent injunction restraining the Defendants, their relatives, agents, servants and/or any other person under their instructions from alienating, wasting, developing, sub-dividing, charging, trespassing, encroaching upon and/or interfering with the suit property
  6. 6.In the alternative, the Government of Kenya (through the Honorable Attorney General, the National Land Commission and the County Government of Mombasa) within thirty (30) days to consider compulsory acquisition of the suit land by purchasing it from the Plaintiff for settlement of the Defendants with prompt, adequate, fair and just compensation
  7. 7.In the alternative, the Defendants to embrace the offer to purchase the portion of land they occupy by entering into a mutually agreed sale agreement within ninety (90) days
  8. 8.General damages of Kenya Shillings Ten Million (Kshs. 10,000,000.00) awarded to the Plaintiff
  9. 9.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1)-(6), 10, 24, 40(1), (2), (3), 43(1)(b), 48, 60(1), 61, 67(2)(e), 159(2)(c), 162(2)(b)
  • Evidence Act, Cap. 80Sections 107, 108, 109, 173
  • Land Registration Act, No. 3 of 2012Sections 7, 24, 25, 26(1), (2), 80(1), (2), 101, 107
  • Land Act, No. 6 of 2012Sections 7, 38, 101-118, 134(1), (2), (4)-(7), 135(3)(a), 150, 152E, 167, 168
  • Registered Land Act, Cap. 300 (repealed)Sections 27, 28, 143(1)
  • Limitation of Actions Act, Cap. 22Sections 7, 13, 38
  • Civil Procedure Act, Cap. 21Section 27(1)
  • Civil Procedure Rules, 2010Order 2 Rule 6, Order 11, Order 18 Rule 11, Order 37 Rules 1 and 7
  • Interpretation and General Provisions Act, Cap. 2Section 23(3)(c)
  • Trespass ActSection 3(1)
  • Environment and Land Court Act, No. 19 of 2011Sections 3 and 13
  • Agriculture ActSection 168
  • Law of Contract Act, Cap. 23not specified

Cases cited (47)

  • David Kiptugen v Commissioner of Lands & 4 others
    (2015) eKLR

    Procedure for acquisition of alienated public land; letter of allotment and title issuance

  • Central Bank of Kenya Ltd v Trust Bank Limited & 4 others
    [1996] eKLR

    Fraud must be pleaded, particularized and proved with evidence; heavier onus in fraud cases

  • Eunice Grace Njambi Kamau & Another v The Hon. Attorney General & 5 others
    ELC Suit No. 976 of 2012

    Fraud must be distinctly alleged and proved; fraud and illegality beyond balance of probabilities

  • Dennis Kuria & Anor v The Attorney General
    Misc Civil Application No. 663 of 2006

    History relevant to legality of allotment and issuance of titles

  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    (2015) eKLR

    Title protection removed where procured by fraud, misrepresentation, illegality or corrupt scheme

  • William S. K Ruto v The Attorney General
    HCC No. 1192 of 2005 (Nbi)

    Cited on impeachment of titles acquired illegally or unprocedurally

  • Silas Moke Otuke v The Attorney General & Others
    (2014) eKLR

    Cited on title acquisition and settlement scheme claims

  • Adan Abdirahani Hassan & 2 Others v The Registrar of Titles
    [2013] eKLR

    Title over land held for public purposes does not exist and is not available for alienation

  • Samwuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    (2012) eKLR

    Saving of rights accrued under repealed written law

  • Tukero Ole Kina & Another v Tahir Sheikh Said (also known as TSS) & 5 Others
    (2015) eKLR

    Repeal does not affect accrued rights, privileges, obligations or liabilities

  • Joseph Komen Somek v Patrick Kennedy Suter
    ELC Eldoret Appeal No. 2 of 2016 (2018) eKLR

    Title impeachable if procured by fraud or illegally, unprocedurally or through corrupt scheme

  • Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others
    [2016] eKLR

    Court must investigate root of title where two or more titles exist over the same land

  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009

    Registered proprietor must prove legality of acquisition beyond the title instrument

  • Dina Management Limited v County Government of Mombasa
    Supreme Court Petition No. 8 (E010) of 2021

    Land property rights come into existence only after due process including letter of allotment and title issuance

  • Torino Enterprises Limited v Hon. Attorney General
    Supreme Court Petition No. 5 (E006) of 2022

    Cited on indefeasibility and validity of title

  • Masek Ole Timukoi & 3 others v Kenya Grain Growers Ltd & 2 others
    ELC (Nku) No. 272 of 2015 (OS)

    Cited on title acquisition

  • M'Mbaoni M'Thaara v James Mbaka
    ELC (Chuka) No. 110 of 2017

    Cited on title and registration

  • Dr. Joseph M. K. Arap Ngok v Justice Moijo Ole Keiwua
    Civil Appeal 60 of 1992

    Title only comes into existence after letter of allotment, conditions met and title document issued

  • David Peterson Kiengo & 2 others v Kariariuki Thuo
    (2012) eKLR

    Indefeasibility of title as the basis of land registration

  • Gladys Wanjiru Ngacha v Treresa Chepsaat & 4 Others
    (2013) eKLR

    Pleading fraud is not enough; evidence must prove particulars of fraud

  • Mutsonga v Nyati
    (1984) KLR 425

    Whether there is evidence to support fraud is a question of fact

  • R.G. Patel v Lalji Makani

    Fraud must be strictly proved; more than mere balance of probabilities required

  • Flectcher v Peck

    Rights of innocent purchasers for value without notice cannot be disregarded despite prior fraud

  • Mbiiri Kamau (Representing A.C.K Kitharaini Church) v Munyangia Njoka & 2 Others

    Cited on allegations of fraud

  • Kuria Kiarie & 2 Others v Sammy Magera
    (2018) eKLR

    Allegations of fraud must be pleaded and strictly proved

  • Ndolo v Ndolo
    (2008) 1 KLR (G&F) 742

    Burden of proving forgery or fraud lies on the allegers

  • Dixon Okindo Mageto & another v Dinah Mageto

    Cited on strict proof of fraud

  • Joyce Kemunto Osoro (suing as legal representative of Stephen Obonyo-deceased) v Attorney General & 9 Others
    (2020) eKLR

    Title of innocent third party impugned under Section 26(1)(b) if obtained illegally, unprocedurally or through corrupt scheme

  • Katende v Haridas & Co. Ltd
    (2008) 2 EA

    Elements a bona fide purchaser must prove

  • Chengo Katana Koi v Protus Evans Masinde
    (2013) eKLR

    Settlement Scheme Trustee Fund under Section 168 of the Agriculture Act

  • Raphael Kariuki Gichuki v Peter Maya Gichuki
    (2019) eKLR (Kerugoya ELC)

    Settlement scheme trustee fund requirements

  • Kahindi Ngala Mwagandi v Mtana Lewa
    [2021] eKLR

    Strictures for adverse possession: nec vi, nec clam, nec precario and Order 37 procedure

  • Teresa Wachuka Gachira v Joseph Mwangi Gachira
    Civil Appeal No. 325 of 2003

    No proof of exclusive, continuous and uninterrupted possession for twelve years; importance of exhibiting title

  • Kyeyu v Omuto
    Civil Appeal No. 8 of 1990

    Failure to exhibit title document in adverse possession claim is fatal

  • Johnson Kinyua v Simon Gitura
    Civil Appeal No. 265 of 2005

    Existence and proprietorship of land proved by extract of title or certificate of official search

  • Kimani Ruchine v Swift Rutherford & Co. Ltd
    (1980) KLR

    Possession must be as of right: nec vi, nec clam, nec precario; continuous possession

  • Wanyoike Gathire v Berverly
    (1965) EA 514

    Possession must be continuous and not broken

  • John Otieno Obade & 299 Others v Teresia Wairimu Kirima & Anne Wangari Kirima
    ELC No. 1257 of 2014 (OS)

    Ingredients of adverse possession: open, notorious, non-permissive occupation

  • Kenya Power & Lighting Co. Ltd v Sheriff Molana Habib
    (2018) eKLR

    Nature of a permanent/perpetual injunction granted after full hearing

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358

    Principles for grant of injunctions

  • Duncan Nderitu Ndegwa v KP&LC Limited & Another
    (2013) eKLR

    Trespass actionable per se; general damages without proof of damage

  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR

    Measure of damages for trespass

  • Satrose Ayuma & 11 Others v Kenya Railways Staff Retirement Benefits Scheme
    Constitution Petition Numbers 65 of 2010

    Forced evictions as prima facie violations of right to adequate housing; procedural protections

  • Reids Heweet & Company v Joseph
    AIR 1918 Cal. 717

    Costs follow the event; distributive reading of 'event'

  • Myres v Defries
    (1880) 5 Ex. D. 180

    Costs follow the event

  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 Others
    [2014] eKLR

    Basic rule of costs; costs compensate the successful party

  • Miller v Minister of Pensions
    (1947) 2 ALL ER 372

    Standard of proof on balance of probabilities

Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010; Sections 3 and 13 of the Environment and Land Court Act, No. 19 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Halal Brothers Limited (On their own behalf and on behalf of all the People squatting on plot number Kili/Kijipwa/48) v Rimba & 2 others", Case Analysis (2023). Civil Suit 334 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21635/eng@2023-11-07

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