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ELCAllowedELC Case of 2012 (Kwale), Environment and Land Court at Mombasa· [2024] KEELC 4526 (KLR)

Mwangi v Wanyoike t/a Between Us Bar & 2 others (Civil Suit 264 of 2012) [2024] KEELC 4526 (KLR)

Environment and Land Court
30 May 2024
13,334 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~53 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that a title deed beats undocumented occupation, ordering three Ukunda businesses evicted and costs paid.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of parcel Kwale/Ukunda/2848 since 8th October 2001 following purchase from Fatuma Rama Matano, sued three business operators for declarations that they were trespassers, an injunction, and eviction. The Defendants resisted, contending they were protected tenants under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) holding from the estate of the late Chief Hassan Hamadi Mwafrika, that the court lacked jurisdiction as the dispute belonged to the Business Premises Rent Tribunal, and that the suit was res judicata by virtue of a withdrawn Kwale PMCC No. 172 of 2012. The court framed six issues. On jurisdiction, it held that no landlord-tenant relationship existed between the plaintiff and the defendants or the deceased, so Cap. 301 and the BPRT forum were inapplicable; the true issue was trespass. On res judicata, it held that a withdrawn suit is at an end and cannot be reinstated, but withdrawal does not activate the Section 7 bar, as the plaintiff's remedy is a fresh suit. On ownership, the title deed, transfer, sale agreement and Land Control Board consent proved the plaintiff's indefeasible proprietorship under Sections 24, 25 and 26 of the Land Registration Act; the Defendants produced no lease documents or evidence connecting the premises to a different parcel. Once proprietorship was established, the burden shifted to the Defendants to justify their occupation, which they failed to discharge; they were trespassers. Judgment was entered in terms of the amended plaint in its entirety: a declaration of ownership, a permanent preservatory injunction against renovations and constructions, eviction under Section 152E of the Land Act restoring possession to the plaintiff, with costs awarded to the plaintiff jointly and severally against the Defendants.

Key legal issues

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01

Whether the ELC had jurisdiction given the Defendants' claim of protected tenancy under Cap. 301

Holding

The court has jurisdiction because no landlord-tenant relationship existed between the Plaintiff and the Defendants or the alleged landlord, so the BPRT provisions do not apply; the dispute is one of trespass.

Reasoning

The ELC derives jurisdiction from Article 162(2)(b) of the Constitution and Sections 3 and 13 of the ELC Act. Although the Defendants claimed a controlled tenancy with the estate of Chief Mwafrika, there was no empirical evidence of such a relationship, and none with the Plaintiff. Since the real issue was trespass and encroachment, Cap. 301 did not apply and the objection failed.

p. 14
02

Whether the suit was res judicata by virtue of the withdrawn Kwale PMCC No. 172 of 2012

Holding

The suit was not res judicata; the prior suit was withdrawn, and a withdrawal does not amount to a final decision on the merits for the purposes of Section 7 of the Civil Procedure Act.

Reasoning

Res judicata requires a former suit heard and finally decided by a competent court between the same parties. The prior Kwale suit was withdrawn and/or discontinued. Order 25 of the Civil Procedure Rules confers the right of withdrawal, which is effective immediately and cannot be revoked, but the rules do not permit reinstatement; the plaintiff's remedy is a fresh suit. Withdrawal therefore does not activate the res judicata bar.

p. 20
03

Whether the Plaintiff is the sole proprietor of the suit property

Holding

The Plaintiff is the legal and absolute proprietor with indefeasible rights, title and interest.

Reasoning

The Plaintiff produced a sale agreement, Land Control Board consent, transfer and title deed registered on 8th October 2001 following purchase from Fatuma Rama Matano. Under Sections 24, 25 and 26(1) of the Land Registration Act, a certificate of title is prima facie evidence of absolute and indefeasible ownership. The Defendants produced no documentary evidence of a lease or that the premises they occupied were on different land.

p. 22
04

Whether the Defendants are trespassers

Holding

The Defendants are trespassers on the suit property.

Reasoning

Title to land carries legal possession, so the registered proprietor was entitled to quiet enjoyment. Once the Plaintiff established proprietorship, the burden shifted to the Defendants to justify their occupation. They produced no documentary evidence of any right to occupy, no title of the alleged landlord, and their controlled-tenancy defence was baseless for want of any landlord-tenant relationship with the Plaintiff.

p. 22
05

Whether the Plaintiff is entitled to the prayers sought and costs

Holding

The Plaintiff proved his case and is entitled to the declaration, injunction and eviction sought, together with costs from the Defendants jointly and severally.

Reasoning

Having found the Plaintiff to be the registered proprietor and the Defendants to be trespassers, the court held that the Plaintiff proved his case on a balance of probabilities. Costs follow the event under Section 27(1) of the Civil Procedure Act, and the successful Plaintiff was awarded costs against the Defendants jointly and severally.

p. 22

Legal principles established

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  • A certificate of title is prima facie conclusive evidence of ownership and confers indefeasible title on the registered proprietor.
  • The withdrawal of a suit terminates it; a plaintiff cannot reinstate a withdrawn suit but may institute a fresh action, and withdrawal does not trigger the res judicata bar under Section 7 of the Civil Procedure Act.
  • Where no landlord-tenant relationship exists, a party cannot claim the protection of a controlled tenancy, and the BPRT route does not oust the ELC's jurisdiction over trespass claims.
  • Title to land carries with it legal possession, and once lawful proprietorship is established, the burden shifts to the occupier to justify their entry and occupation.

Court orders

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  1. 1.Judgment entered in favour of the Plaintiff against the 1st, 2nd and 3rd Defendants in terms of the amended Plaint dated 3rd July, 2017 in its entirety
  2. 2.A Declaratory Order that parcel Kwale/Ukunda/2848 and all the developments thereon is the lawful property of the Plaintiff and that the Defendants are Trespassers thereon and should be evicted therefrom
  3. 3.A permanent preservatory order of injunction directing the Defendants to stop any renovations and or constructions on the land Plot No. Kwale/Ukunda/2848 and remove all the unauthorized and illegal structures on the suit premises
  4. 4.An order of eviction, strictly governed by Section 152E of the Land Act, No. 6 of 2012, evicting and removing the 1st, 2nd and 3rd Defendants from Plot No. Kwale/Ukunda/2848 and restoring possession to the Plaintiff at the Defendants' costs
  5. 5.Costs of the Plaint awarded to the Plaintiff, to be paid by the 1st, 2nd and 3rd Defendants jointly and severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSections 3 and 13, No. 19 of 2011
  • Land Registration ActSections 24, 25 and 26(1), No. 3 of 2012
  • Land ActSection 152E, No. 6 of 2012
  • Civil Procedure ActSection 7, Cap. 21
  • Civil Procedure ActSection 27(1), Cap. 21
  • Evidence ActSections 107, 108 and 109, Cap. 80
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSections 2(1)(a)(b), 4 and 12, Cap. 301
  • Civil Procedure Rules, 2010Order 25; Order 36 Rule 1
  • Public Health Actreferred to regarding toilet facility requirement

Cases cited (20)

  • Nandal Jivraj Shah & 2 others (all trading as Jivraj Agencies v Kingfisher Properties Limited
    Civil Appeal No. 35 of 2015 [2015] eKLR
  • Risper Kerubo Onsare v Vijay Kumar Saidha & 2 others
    [2012] eKLR
  • Speaker of National Assembly v James Njenga Karume
    (1992) KLR 21
  • Abdulhakim Ahmed Bayusuf & 4 Others v Marble Developers Limited & 2 Others
    Mombasa ELC Const. Petition No. E006 of 2023
  • Owners of Motor Vessel "Lillian S" v Caltex Oil Kenya Limited
    (1989) eKLR
  • The Independent Electoral and Boundaries Commission v Maina Kiai
    (Supra)
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others
    [2018] eKLR
  • Henderson v Henderson
    [1843] 67 ER 313; (1843-60) All ER 378
  • Beijing Industrial Designing & Researching Institute v Lagoon Development Limited
    {2015} eKLR
  • Abayomi Babatunde v Pan Atlantic Shipping & Transport Agencies Limited & others
    SC 154/2002
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others
    SC APP. NO. 16 OF 2014
  • George Mwangi Kinuthia v Attorney General
    [2019] eKLR
  • Priscilla Nyambura Njue v Geovhem Middle East Ltd; Kenya Bureau of Standards (Interested Party)
    [2021] eKLR
  • Smt. Rais Sultana Begam v Abdul Qadir & Others
  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009
  • Gitwany Investments Limited v Tajmal Limited & 3 others
    [2006] eKLR
  • Reids Heweet & Company v Joseph
    AIR 1918 Cal. 717
  • Myres v Defries
    (1880) 5 Ex. D. 180
  • Skinner and Eddy Corporation
    (1924) 68 Law Ed 912
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and Sections 3 and 13 of the Environment and Land Court Act, No. 19 of 2011

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, "Mwangi v Wanyoike t/a Between Us Bar & 2 others (Civil Suit 264 of 2012) [2024] KEELC 4526 (KLR)", Case Analysis (2024). ELC Case of 2012 (Kwale), Environment and Land Court at Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4526/eng@2024-05-30

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