Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2024] KEELC 5241 (KLR)

Mboi (Suing as a legal representative of the Estate of Abiud Macharia Chege - Deceased) v Mae (Environment & Land Case E069 of 2022) [2024] KEELC 5241 (KLR)

Environment and Land Court
2 July 2024
7,763 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court confirmed that a registered landowner with clear title can evict trespassers, especially when the trespasser presents no defence.

What this practically means

#

Executive summary

#
This was an undefended land suit before the Environment and Land Court at Mombasa. The plaintiff, Mary Mboi, sued as legal representative of the estate of her late husband, Abiud Macharia Chege, against the defendant, Najmudin Noorali Mohamedali. She pleaded that the deceased and one David Nguti Gitau (also deceased) were registered joint leasehold proprietors of Sub-division No. 11285/1/MN (original No. 274/3), Section 1, Mainland North, Mombasa, having purchased it in 2000 from Marian Kavingi Bryant. She testified, with her son and a former farm worker, that the family lived on and developed the land until the defendant, assisted by armed persons, forcibly evicted them, demolished their structures, pulled down the fence and began erecting structures and settling persons on the land. The defendant entered appearance through counsel but never filed a defence, called no evidence and did not participate after his advocates were allowed to cease acting. The court framed three issues: bona fide ownership, entitlement to the reliefs sought, and costs. Relying on Sections 24, 25 and 26 of the Land Registration Act, the saving provisions on the repealed Registration of Titles Act, and Article 40 of the Constitution, the court found the title unchallenged and the defendant a trespasser. Judgment was entered for the plaintiff: a declaration that the defendant has no interest in the land, an eviction order under Section 152E of the Land Act to be complied with within 30 days, a permanent injunction, police enforcement orders, and costs to the plaintiff.

Key legal issues

#
01

Whether the Plaintiff is the bona fide owner of the suit property

Holding

Yes - the court found the plaintiff, as legal representative of the deceased registered joint proprietor, to be the absolute and bona fide owner with indefeasible rights

Reasoning

The plaintiff produced a Certificate of Lease, a February 2000 sale agreement, and a transfer dated 3rd July 2000 showing the deceased and David Nguti Gitau as joint registered leasehold proprietors. The repealed Registration of Titles Act position was preserved under Section 107 of the Land Registration Act, so Sections 24, 25 and 26 LRA applied. The defendant, though represented, filed no evidence and did not rebut the claim, so the title stood unchallenged.

p. 11
02

Whether the plaintiff is entitled to the declarations, eviction and permanent injunction sought

Holding

Yes - the defendant was found to be in trespass, and the declaration, eviction order and permanent injunction were granted as prayed

Reasoning

Having determined ownership, the court found the defendant's continued stay and structures on the land amounted to trespass violating the plaintiff's rights under Article 40 of the Constitution. The court distinguished prohibitory from mandatory injunctions and held that the prayers, being directed at a party with no legal right to remain, were meritorious. The orders relate to use, occupation and title to land, falling squarely within the ELC's jurisdiction.

p. 12
03

Who bears the costs of the suit

Holding

The plaintiff, as the successful party, was awarded costs

Reasoning

Applying the principle that costs follow the event under Section 27(1) of the Civil Procedure Act, and citing Harun Mutwiri, KUCFAW v Bidco and Hussein Muhumed Sirat, the court held that the plaintiff had established her case as pleaded and was entitled to costs.

p. 13

Legal principles established

#
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme
  • A party who fails to adduce evidence or rebut the plaintiff's unchallenged testimony cannot escape the findings founded on that evidence
  • Costs follow the event and the successful party is typically entitled to costs unless there are compelling reasons to decide otherwise

Court orders

#
  1. 1.Judgment entered in favour of the Plaintiff as pleaded in the Plaint dated 23rd June, 2022
  2. 2.A declaration that the Defendant and all persons acting under him or at his behest have no interest whatsoever in land parcel Sub-division No. 11285/1/MN (original No. 274/3) Section 1, Mainland North, Mombasa
  3. 3.An order of eviction pursuant to Section 152E of the Land Act, No. 6 of 2012 against the Defendant and all persons acting under him to vacate the suit parcel and remove all structures erected thereon, within 30 days of the judgment
  4. 4.In default of voluntary compliance, the Plaintiff be at liberty to forcefully evict the said persons with the assistance of the Inspector General of Police through the Officer Commanding Bamburi Police Station
  5. 5.A permanent injunction prohibiting the Defendant and all persons acting under him from forcefully entering or erecting any structures on the suit parcel or any portion thereof
  6. 6.An order that the Officer Commanding Bamburi Police Station ensures compliance with the orders of the Court
  7. 7.Costs of the suit awarded to the Plaintiff

Authorities

#

Legislation

  • Land Registration ActSections 24, 25, 26(1), 28, 107
  • Land ActSections 7, 152E
  • Registration of Titles ActCap. 281 (now repealed)
  • Interpretation and General Provisions ActSection 23(3)(c)
  • Evidence ActSection 107(1)
  • Civil Procedure ActSections 1A, 3, 3A, 27(1)
  • Civil Procedure RulesOrder 11
  • Constitution of Kenya, 2010Article 40

Cases cited (12)

  • Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another
    [2013] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Mrao Limited v First American Bank of Kenya Limited & 2 others
    [2003] eKLR
  • Samwuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    (2012) eKLR
  • Tukero Ole Kina & Another v Tahir Sheikh Said (also known as TSS) & 5 Others
    (2015) eKLR
  • Giella v Cassman Brown
    1973 E.A. Page 358
  • Shepard Homes v Sandham
    (1970) 3 WLR Pg. 356
  • Harun Mutwiri v Nairobi City County Government
    [2018] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Bidco Africa Limited & Another
    [2015] eKLR
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
  • Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others
    Machakos ELC Pet No. 6 of 2013 [2013] eKLR
  • Levben Products v Alexander Films (SA) (PTY) Limited
    1957 (4) SA 225 (SR) at 227
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to the use, occupation and title to land under Article 162(2)(b) of the Constitution (court's jurisdiction over land use, occupation and title observed in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mboi (Suing as a legal representative of the Estate of Abiud Macharia Chege - Deceased) v Mae (Environment & Land Case E069 of 2022) [2024] KEELC 5241 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5241/eng@2024-07-02

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