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ELCPartially AllowedELC Case No. 241 of 2020· [2024] KEELC 3722 (KLR)

Khamis & 2 others v Ainushamsi Multiple Agencies Limited (Environment & Land Case 241 of 2020) [2024] KEELC 3722 (KLR)

Environment and Land Court
24 April 2024
2,680 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiffs, registered proprietors of Plot No. Kilifi/Kawala 'A' Kadzonzo/32 (4.05ha) near Mariakani, having purchased from Hamisi Mrinzi Kokoi following demarcation in the Kawala 'A' Adjudication Section, sued the defendant for injunction and damages. The defendant claimed ownership of the same land under Title CR 60948 IR No. 28815 (3.495ha), a grant issued by the Commissioner of Lands in 2011 to Makwangara Kazungu Gunga and transferred to the defendant in October 2015, contending the land was set apart by the then Mariakani County Council. The court identified the central issue as which of the two competing titles should be upheld under Section 26 of the Land Registration Act. Evidence from the County Land Registrar, County Surveyor and Director of Surveys confirmed the property lay in an adjudication section and that survey records for LR 28815 could not be traced. The court held that government land cannot be trust land; the defendant could not maintain a Commissioner of Lands grant while claiming setting apart by a county council, and no lawful setting-apart process was proved. The defendant's title was declared illegally acquired and ordered cancelled. The defendant's occupation was found to be trespass, actionable per se, drawing general damages of Kshs 100,000/- annually from 2020 until vacant possession. The court issued a permanent injunction, ordered vacation and removal of structures within 90 days, with liberty to evict on default, and awarded the plaintiffs costs of the suit and counterclaim.

Key legal issues

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01

Validity of competing titles over the same parcel of land

Holding

The plaintiffs' title was authentic; the defendant's Certificate of Title CR 60948 LR No. 28815 was acquired illegally and ought to be cancelled

Reasoning

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.

p. 4
02

Whether setting apart of the suit property was lawful

Holding

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

Reasoning

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.

p. 4
03

Whether the defendant's occupation constitutes trespass

Holding

Yes; the defendant's occupation infringed the plaintiffs' rights as registered proprietors and amounted to trespass, actionable per se

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.In default of vacation, plaintiffs at liberty to evict the defendant and remove buildings and structures at the defendant's cost
  5. 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. 6.Costs of the suit and the defendant's counterclaim awarded to the plaintiffs

Authorities

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Legislation

  • Registration of Title Act (Cap 281)repealed statute under which defendant's title was issued
  • Land Adjudication Act (Cap 284)declaration of adjudication area
  • Land Registration ActSection 26
  • Government Lands Actalienation of government land
  • Trust Land Act (Cap 288)Sections 13, 13(2), 53, 53(a)
  • Constitution of Kenya, 2010preceding enactment of land provisions
  • Repealed Constitution of KenyaSections 115(2), 117

Cases cited (3)

  • Bahola Mkalindi vs Michael Seth Kaseme & 2 others
    (2013) eKLR
  • Leah Magoma Ongai vs Attorney General
    (2015) eKLR
  • Duncan Nderitu Ndegwa v Kenya Pipeline Company Limited & another
    (2013) eKLR
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

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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, "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.