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ELCPartially AllowedNot stated in the judgment as provided· [2024] KEELC 3290 (KLR)

Noor (Suing as the Legal Representative of Mohamed Jama Noor) v Muhambi & 49 others (Environment and Land Case 43 of 2017) [2024] KEELC 3290 (KLR)

Environment and Land Court
23 April 2024
MNMwangi Njoroge
2,525 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 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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This first-instance Environment and Land Court suit at Malindi was instituted in March 2017 by Mohamed Jama Noor, later substituted by his son and legal representative Jibriel Mohamed Jama Noor, who filed an amended plaint in October 2020. The plaintiff claimed to be the registered owner of Portion 509 Malindi (Title Number LT 33 Folio 310 File 3778) and alleged that the defendants unlawfully invaded the property from around 2012, erecting structures. He sought a declaration of ownership, a mandatory injunction to compel demolition and removal of structures, a permanent injunction, eviction with police assistance, and costs. The defendants, in a joint defence and counterclaim, claimed they acquired beneficial interests from forefathers occupying the land since the 1960s and counterclaimed for a declaration of adverse possession, registration in their favour, and a permanent injunction against the plaintiff. The plaintiff was the sole witness; the defendants adduced no evidence. The court framed two issues: proof of trespass and the injunction claim, and proof of adverse possession. Holding the plaintiff's unimpeached title established, the court found the defendants' unauthorised structures constituted trespass. The adverse possession counterclaim failed because the defendants, bearing the burden under Sections 108 and 109 of the Evidence Act, produced no evidence of open, continuous possession for over twelve years. Judgment was entered for the plaintiff as prayed: a declaration of ownership, a mandatory injunction with 90 days to demolish and remove structures, a permanent injunction, and police security for eviction. General damages for trespass were declined as unpleaded. Costs were awarded to the plaintiff.

Key legal issues

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01

Whether the plaintiff proved trespass

Holding

Trespass proved; structures erected without the plaintiff's authorization amount to trespass

Reasoning

The court found the plaintiff to be the unimpeached registered owner of the suit property, having purchased it in 1978 and acquired sole ownership by 1980. Photographs produced by the plaintiff showed structures put up by the defendants without authorization, an assertion the defendants themselves admitted in their pleadings. This established the tort of trespass against the defendants.

p. 5
02

Whether the defendants proved adverse possession on counterclaim

Holding

Counterclaim dismissed for failure to adduce evidence

Reasoning

The burden lay on the defendants to demonstrate occupation that was open, without force, without secrecy, without permission and exceeding 12 years. Having filed their defence and counterclaim, the defendants failed to present any evidence before the court. Their allegations remained unsubstantiated, making it impossible to ascertain when and how they entered the suit property. The adverse possession claim therefore failed.

p. 5

Legal principles established

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  • He who alleges must prove; the burden of proving adverse possession lies on the party claiming it
  • Adverse possession requires open, continuous possession without force, secrecy or permission for over 12 years
  • A registered owner's title is protected under the Land Registration Act and Article 40 of the Constitution

Court orders

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  1. 1.A declaration that the deceased plaintiff Mohamed Jama Noor is the absolute registered owner of the suit property
  2. 2.A mandatory injunction compelling the Defendants and any person claiming under them to demolish the structures on Portion 509 Malindi Title Number LT 33 Folio 310 File 3778 and remove all materials therefrom within 90 days, in default the structures to be demolished and removed at their cost and the defendants evicted
  3. 3.A permanent injunction restraining the Defendants and any person claiming under them from further trespassing, encroaching or interfering with the suit property
  4. 4.The OCS Malindi Police Station to provide security for the eviction
  5. 5.The defendants to bear the costs of the suit

Authorities

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Legislation

  • Trespass ActSection 3(1)
  • Land Registration ActSections 24, 25, 25(1), 26
  • Evidence ActSections 108 and 109
  • Limitation of Actions Act, Chapter 22 Laws of KenyaSections 7 and 17
  • Civil Procedure ActSection 27(1)
  • Constitution of KenyaArticle 40

Cases cited (19)

  • Municipal Council of Eldoret v Titus Gatitu Njau
    [2020] eKLR
  • Simpson v Bannerman
    [1932] 47 CLR 378
  • Barker v The Queen
    [1983] 153 CLR 338, 343-377
  • Alice Chemutai Too v Nickson Kipkirui Korir & 2 others
    [2015] eKLR
  • Giella v Cassman Brown
    [1973] EA 358
  • Nguruman Limited v John Bonde Nielsen & 2 others
    [2014] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd
    [2003] eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Robert Mugo wa Karanja v Ecobank (K) Limited & another
    [2019] eKLR
  • Malier Unissa Karim v Edward Oluoch Odumbe
    [2015] eKLR
  • Jay Super Power Cash and Carry Ltd v Nairobi City Council & 20 others
    CA 111/2002
  • Locabail International Finance Limited v Agro Export & Others
    [1986] ALL ER 906
  • Shepherd Homes v Sandham
    [1970] 3 WLR
  • Gitwany Investments Limited v Tajmal Limited & 3 others
    [2006] eKLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & another
    [2016] eKLR
  • Kimani Ruchine & Another v Swift, Rutherford Co. Ltd. & another
    (1977) KLR 10
  • Samuel Kihamba v Mary Mbaisi
    KSM CA No. 27 of 2013
  • Ruth Wangari Kanyagia v Josephine Muthoni Kinyanjui
    [2017] eKLR
  • Kamataka Board of Wakf v Government of India & Others
    [2004] 10 SCC 779
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) of the Constitution is not expressly cited in the judgment; the plaint was heard as a first-instance suit)

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, "Noor (Suing as the Legal Representative of Mohamed Jama Noor) v Muhambi & 49 others (Environment and Land Case 43 of 2017) [2024] KEELC 3290 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3290/eng@2024-04-23

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