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ELCPartially AllowedNot stated in the judgment as provided· [2024] KEELC 291 (KLR)

Kisia (Suing as the legal representative ad litem of the Estate of James Titus Kisia) v Hamduni & 2 others (Environment & Land Case 218 of 2018) [2024] KEELC 291 (KLR)

Environment and Land Court
31 January 2024
1,391 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Mombasa court ordered tenants out of three shops, ruling that expired leases and unproven company agency claims left them trespassers liable to give vacant possession.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Plot Title Number Mombasa/Block/XVII/450 with a commercial building erected thereon, sued the defendants for vacant possession of shops 2, 3 and 4 on the ground floor, alleging they had occupied the shops since about 2016 without authority, consent or payment of rent, amounting to trespass. The defendants denied that the 1st and 2nd defendants were ever in possession and asserted that the 3rd defendant occupied the premises with the express or implied consent of the plaintiff's deceased predecessor, who had leased spaces to DW1, Said Majid Said, in 2010 and 2013 as proxy or silent shareholder of the 3rd defendant. The defendants suggested the suit was an afterthought aimed at frustrating HCC No. 149 of 2014 (Said Majid Said v James Titus Kisia & Another) pending in the High Court. The court noted that the lease agreements dated 18th November 2010 and 22nd April 2013 were between the plaintiff and DW1 personally, contained a clause 8 barring subletting, and had expired, and that scanty details, proceedings and decision in the High Court matter had been availed. Applying the Court of Appeal decision in Chon Jeuk Suk Kim v E. J. Austin on proof of agency, the court found no proof that DW1 acted as director, shareholder or proxy for the 3rd defendant, and held the defendants were trespassers. The plaintiff's case was proved on a balance of probabilities. The court granted an order of vacant possession of shops 2, 3 and 4 and costs of the suit to the plaintiff.

Key legal issues

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01

Whether the defendants are trespassers on the suit premises

Holding

The court found the defendants were trespassers, having no relationship with the plaintiff, and the plaintiff proved his case on a balance of probabilities

Reasoning

The plaintiff produced a certified copy of the title and showed the defendants were not his tenants. The lease agreements were between the plaintiff and DW1 personally, contained a clause prohibiting subletting, and had expired. No proof linked DW1 to the 3rd defendant as director, shareholder or proxy. DW1 admitted occupation of three shops. Occupation without consent therefore amounted to trespass under the Trespass Act.

p. 3
02

Whether the leases to Said Majid Said bound the 3rd defendant through agency

Holding

The court applied the Court of Appeal decision in Chon Jeuk Suk Kim to hold that agency was not proved, so the leases did not bind the 3rd defendant

Reasoning

Relying on Chon Jeuk Suk Kim & another v E. J. Austin & 2 others, the court noted that where agency is alleged, concrete evidence of the agency and due execution must be given; mere assertion that a person is a proxy or silent shareholder is insufficient. DW1 gave no proof of his alleged role in the 3rd defendant, so the leases could not be enforced by or against the company.

p. 2

Legal principles established

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  • Trespass is an intrusion by a person into the land of another who is in possession and ownership
  • Agency must be proved on a balance of probabilities before a contract executed by an alleged agent binds the alleged principal

Court orders

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  1. 1.An order of vacant possession of shop numbers 2, 3 and 4 situated on the ground floor of the commercial building erected on Plot Title No. Block/XV11/450
  2. 2.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Trespass Act, Cap 294Section 3(1)

Cases cited (2)

  • Chon Jeuk Suk Kim & another vs E. J. Austin & 2 others
    Civil Appeal No. 265 of 2010 (2013) eKLR
  • HCC No. 149 of 2014 Said Majid Said vs James Titus Kisia & Another
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (title, occupation and trespass of Mombasa/Block/XVII/450)

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, "Kisia (Suing as the legal representative ad litem of the Estate of James Titus Kisia) v Hamduni & 2 others (Environment & Land Case 218 of 2018) [2024] KEELC 291 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/291/eng@2024-01-31

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