Bandari Investments & Co. Limited v Chiponda & 140 others (Environment & Land Case 16 of 2021) [2024] KEELC 3588 (KLR)
The bottom line
#Kenya's Environment and Land Court in Mombasa confirmed a titleholder's ownership, evicted 139 squatters, and rejected their adverse possession and ancestral land claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was barred by res judicata, sub judice and estoppel given the prior Constitutional Petition No. 15 of 2017
No - the Petition was dismissed on the doctrine of constitutional avoidance for want of jurisdiction, and a judgment of a court without jurisdiction cannot found res judicata
The prior Petition was dismissed on a technicality, the judge holding that eviction and injunction claims should have been brought by ordinary suit. Because the Petition was instituted without regard to constitutional avoidance, the court lacked jurisdiction over the recovery claim; a judgment rendered without jurisdiction is a nullity and cannot operate as res judicata. The sub judice plea also failed as the court could not identify which pending suits would affect its determination.
Whether the Plaintiff is the bona fide legal proprietor of the suit land
Yes - the Plaintiff traced a good root of title, purchased in 2012 from Hussein Dairy, and holds an indefeasible Certificate of Title
The Plaintiff produced a Certificate of Title, transfer, and stamp duty receipt showing acquisition in 2012. No Defendant produced any title or evidence of fraud attributable to the Plaintiff. Under Sections 24, 25 and 26 of the Land Registration Act the certificate is prima facie and conclusive evidence of ownership, and even the Defendants' own documents acknowledged the Plaintiff's 2012 acquisition.
Whether the Defendants established adverse possession
No - the Counter-Claim was dismissed
The Defendants pleaded ancestral inheritance rather than adverse possession, and even considered on the merits, their occupation was permissive in part, the land was not specifically identified, demarcated or surveyed, and the possession was interrupted by demolitions and evictions. Possession must be nec vi, nec clam, nec precario and adequate in continuity, publicity and extent, none of which was proved.
Whether the Plaintiff was entitled to injunctions, vacant possession and special damages
Yes - permanent and mandatory injunctions, vacant possession and Kshs. 20,593,710.56 special damages were granted
The Defendants had no legal mandate over the land, so the permanent injunction was merited; a mandatory injunction was justified as the case was clear and the structures easily removable. Special damages for the repeatedly demolished perimeter wall were specifically pleaded and supported by the project manager's damage reports, which the court accepted in full even absent formal quantity surveyor support.
Legal principles established
#- A judgment delivered by a court lacking jurisdiction cannot operate as res judicata
- The registered proprietor's title is indefeasible unless procured by fraud, misrepresentation, or acquired illegally, unprocedurally or through a corrupt scheme
- Adverse possession requires non-permissive, non-consensual, actual, open, notorious, exclusive and adverse occupation for an uninterrupted period of 12 years
- Special damages must be specifically pleaded and strictly proved
Court orders
#- 1.Judgment entered in favour of the Plaintiff against the 1st to 139th Defendants in terms of the Further Amended Plaint dated 22nd June, 2023 in its entirety
- 2.The suit ELC No. 160 of 2022 and the Amended Counter-Claim by the 1st and 18th Defendants dismissed with costs
- 3.A permanent injunction restraining the 1st to 139th Defendants from entering upon, remaining continuing in occupation, constructing, destroying quiet possession and enjoyment of the suit property
- 4.A mandatory injunction compelling the 1st to 139th Defendants to remove structures and dispose of materials, with the Plaintiff at liberty to demolish and remove in default at the Defendants' costs
- 5.An order for vacant possession of the suit property for the Plaintiff's peaceful and quiet enjoyment
- 6.Payment of Kenya Shillings Twenty Million Five Ninety Three Thousand Seven Hundred and Ten and Fifty Six Cents (Kshs 20,593,710.56/-) as compensation for the value of the destroyed wall since February 2018
- 7.An order directing the County Commander Mombasa, OCPD Kisauni and the OCS Kiembeni to ensure full implementation of the Decree
- 8.Costs of the Further Amended Plaint and the dismissed Amended Counter-Claim borne by the 1st to 18th and 19th to 139th Defendants and awarded to the Plaintiff
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 read with Section 13(1) and 13(2) of the Environment and Land Court Act, No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bandari Investments & Co. Limited v Chiponda & 140 others (Environment & Land Case 16 of 2021) [2024] KEELC 3588 (KLR)", Case Analysis (2024). ELC No. 16 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3588/eng@2024-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.