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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the defendants are trespassers on the suit premises
The court found the defendants were trespassers, having no relationship with the plaintiff, and the plaintiff proved his case on a balance of probabilities
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.
Whether the leases to Said Majid Said bound the 3rd defendant through agency
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
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.
Legal principles established
#- 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
#- 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.Costs of the suit to the plaintiff
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land disputes (title, occupation and trespass of Mombasa/Block/XVII/450)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.