Chakera & another v County Government of Mombasa (Environment & Land Case 38 of 2015) [2024] KEELC 5295 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Ownership of the suit property
The plaintiffs, as registered proprietors holding a certificate of title, are the lawful owners; the defendant produced no evidence of ownership of Mombasa/Block X1/140.
The plaintiffs produced an indenture of conveyance dated 18th April 1960 and a title deed issued 7th November 2008. Section 26 of the Land Registration Act makes the certificate prima facie evidence of absolute and indefeasible ownership, challengeable only on proven fraud or illegality. The defendant alleged the title was fake and fraudulently obtained but called no evidence, so the title stands unimpugned.
Trespass by the defendant
The defendant entered the suit property without authority and ploughed an unsurveyed road through it, amounting to trespass.
PW1 and PW2 testified that in February 2015 the defendant came with a tractor/grader and made a road through the land, damaging tenants' structures and reducing rental income. The valuer PW3 confirmed the road was not on the survey map and quantified lost rental income. No evidence controverted this testimony, as the defendant closed its case without tendering any evidence.
Failure of the counterclaim
The defendant's counterclaim was dismissed because pleadings unsupported by evidence prove nothing.
Relying on section 107(1) of the Evidence Act and CMC Aviation Ltd v Cruisair Ltd, the court held that averments in pleadings are not evidence and no decision may be founded upon them. Citing Motex Knitwear Ltd v Gopitex Knitwear Mills Ltd, where no witness was called, the defence stood unchallenged and the counterclaim, being unsubstantiated, had to fail.
General damages for trespass
General damages of Kshs.100,000 awarded, following Philip Ayaya Aluchio v Cripinus Ngayo.
Counsel cited Aluchio where Kshs.100,000 was awarded as general damages for trespass. Finding no challenge that the defendant ploughed a road through the suit property without authority or consent, the court held a similar amount reasonable and found the plaintiffs had proved their claim on a balance of probabilities.
Legal principles established
#- A certificate of title is prima facie evidence of ownership under section 26 of the Land Registration Act and cannot be challenged except on proof of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition.
- Pleadings are not evidence; a party must tender evidence to prove its averments, and an unsupported counterclaim must fail.
Court orders
#- 1.Judgment entered for the plaintiffs against the defendant as prayed in the amended plaint dated the 8th March 2020.
- 2.The defendant's counterclaim dismissed for failure of proof.
- 3.The defendant to pay the plaintiffs' costs in the main suit and counterclaim.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property (land parcel Mombasa/Block X1/1066); no specific constitutional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chakera & another v County Government of Mombasa (Environment & Land Case 38 of 2015) [2024] KEELC 5295 (KLR)", Case Analysis (2024). ELC Case of Mombasa (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5295/eng@2024-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.