Dawat-E-Hadiya (Kenya) Registered Trustees v Kaingu & 4 others (All sued in a Representative Capacity Also, on Behalf of other 104 Persons in Occupation of the Petitioners Parcel of Land) (Environment & Land Petition 7 of 2021) [2024] KEELC 4984 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered 107 occupants evicted from a Mombasa plot, holding that living on land for years proves nothing without solid evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved ownership of the suit property
The Plaintiff is the rightful, absolute and indefeasible registered proprietor
The Plaintiff produced the Certificate of Title, official searches and transfer documents. The Defendants never challenged the title on grounds of fraud, mistake or corrupt scheme under Section 26(1) of the Land Registration Act. PW-1's evidence of ownership was uncontroverted, and DW-1 admitted the land belonged to the Bohora Community (the Plaintiff). Registration under Sections 24, 25 and 26 of the Land Registration Act vests absolute ownership.
Whether the Defendants acquired title by adverse possession
The adverse possession claim failed
Although occupation since 1998 was admitted and non-permissive, the Defendants produced no verifiable evidence of the duration of occupation: no statements from the named entrants, no building permits, no NEMA or NCA approvals, and undated photographs lacking a certificate under Section 106A of the Evidence Act. Mere assertion of years of occupation does not discharge the burden of proving 12 years' adverse possession.
Whether the Defendants were trespassers
Yes, the Defendants trespassed on the Plaintiff's land
The Defendants' occupation was without the Plaintiff's consent or authority, which they admitted. Such occupation defeats the proprietor's rights contrary to Section 25 of the Land Registration Act. Trespass under Section 3(1) of the Trespass Act is entry upon private land without the occupier's consent, and continued occupation constitutes a continuing trespass.
Whether the Plaintiff was entitled to the relief sought
Judgment was entered for the Plaintiff in terms of the Plaint, including eviction
Having established ownership and trespass, and the adverse possession defence having failed, the Plaintiff made out a prima facie case warranting the declaratory orders and eviction sought. Costs follow the event under Section 27(1) of the Civil Procedure Act.
Legal principles established
#- A claim for adverse possession requires proof of non-permissive, actual, open, notorious, exclusive and uninterrupted occupation for 12 years, and the adverse character of possession must be established as a fact, not assumed from mere occupation
- Registration confers indefeasible title protected under Sections 24, 25 and 26 of the Land Registration Act, impeachable only on grounds of fraud, misrepresentation or corrupt acquisition
Court orders
#- 1.Judgment entered in favour of the Plaintiff against the Defendants in terms of the Plaint dated 12th February, 2020.
- 2.A declaration that the Plaintiff is the legal registered owner of the whole of parcel MN/I/1392, Title CR No.1884, situate at Bombolulu, Mombasa County.
- 3.A declaration that the Defendants were trespassers upon the Plaintiff's parcel of land.
- 4.An order of eviction under Section 152E of the Land Act for the eviction of all 107 Defendants from the suit property.
- 5.In default of compliance, the Plaintiff may evict the Defendants through the court bailiff with the OCS Nyali Police Station providing security.
- 6.The initial out-of-court negotiation offering alternative land at Mtwapa to be encouraged in the meantime.
- 7.Costs of the suit awarded to the Plaintiff, borne by the Defendants.
- Jurisdiction invoked
- Environment and Land Court Act, No. 19 of 2011; Articles 40 and 67 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dawat-E-Hadiya (Kenya) Registered Trustees v Kaingu & 4 others (All sued in a Representative Capacity Also, on Behalf of other 104 Persons in Occupation of the Petitioners Parcel of Land) (Environment & Land Petition 7 of 2021) [2024] KEELC 4984 (KLR)", Case Analysis (2024). Environment and Land Case (Petition) dated 12th February, 2020, filed 12th February, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4984/eng@2024-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.