Khamis & 2 others v Ainushamsi Multiple Agencies Limited (Environment & Land Case 241 of 2020) [2024] KEELC 3722 (KLR)
The bottom line
#A Mombasa court cancelled a land title shown to have been acquired through a legally impossible mix of trust land and government land claims, awarding the true owners damages.
What this practically means
#Executive summary
#Key legal issues
#Validity of competing titles over the same parcel of land
The plaintiffs' title was authentic; the defendant's Certificate of Title CR 60948 LR No. 28815 was acquired illegally and ought to be cancelled
The defendant claimed the property was set apart by Mariakani County Council while holding a grant issued by the Commissioner of Lands over alleged government land. Trust land and government land are mutually exclusive; the defendant could not maintain a grant of title issued by the Commissioner of Lands while claiming setting apart by the County Council. No evidence of a setting-apart resolution or process was produced.
Whether setting apart of the suit property was lawful
The setting apart was not lawful; the court could not connect the grant issued by the Commissioner of Lands with the setting apart by the County Council
Under the repealed constitutional and statutory framework, trust land could only be set apart by a county council resolution under section 117 of the repealed Constitution and section 13 of the Trust Land Act. The Commissioner of Lands had no power to set apart trust land. No evidence of the process was adduced by the defendant.
Whether the defendant's occupation constitutes trespass
Yes; the defendant's occupation infringed the plaintiffs' rights as registered proprietors and amounted to trespass, actionable per se
The plaintiffs, as registered proprietors, were denied use, occupation, possession and enjoyment of the suit property. The defendant's director did not deny occupation. Trespass is actionable per se without proof of specific loss, and general damages were assessed following Duncan Nderitu Ndegwa v Kenya Pipeline Company Limited & another.
Legal principles established
#- Government land cannot be trust land; a grant could only be made in respect of unalienated government land by the Commissioner of Lands on behalf of the president, and a county council had no role in setting apart unalienated government land.
- Trespass to land is actionable per se and no proof of damage is necessary for the court to award general damages.
Court orders
#- 1.Land Registrar, Mombasa compelled to cancel Certificate of Title No. CR 60948 LR 28815 issued in the name of Ainushamsi Multiple Agencies Limited
- 2.Permanent injunction against the defendant, his servants, agents, employees or anyone authorized by him from continuing to occupy LR. Title No. Kilifi/Kawala 'A' Kadzonzo/32
- 3.Defendant ordered to vacate LR. Title No. Kilifi/Kawala 'A' Kadzonzo/32 and remove all buildings and structures within 90 days from the date of judgment
- 4.In default of vacation, plaintiffs at liberty to evict the defendant and remove buildings and structures at the defendant's cost
- 5.General damages for trespass awarded in the sum of Kshs 100,000/- annually from 2020 and a similar amount annually or part thereof until vacant possession is delivered
- 6.Costs of the suit and the defendant's counterclaim awarded to the plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land title and trespass disputes (referenced disputes over title validity under Section 26 of the Land Registration Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khamis & 2 others v Ainushamsi Multiple Agencies Limited (Environment & Land Case 241 of 2020) [2024] KEELC 3722 (KLR)", Case Analysis (2024). ELC Case No. 241 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3722/eng@2024-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.