Awadh & another (Administrators of the Estate of Omar Awadh Madhesh, Deceased) v Ramadhan & 9 others (Environment & Land Case 256 of 2014) [2024] KEELC 5435 (KLR)
The bottom line
#The Mombasa Environment and Land Court confirmed the registered owners' title and ordered occupants to vacate within 90 days, but refused damages for trespass.
What this practically means
#Executive summary
#Key legal issues
#Who is the legal owner of Plot No. 11651/1/MN
The plaintiffs, as administrators of the estate of Omar Awadh Madhesh and registered proprietors since 2nd June 2015, are the registered owners of the suit property
PW1 traced the title history from the mother title L.R 166 Section I Mainland North through Salima Binti Kibwana to the deceased Omar Awadh Madhesh, who received a 138/358 share in 1956. Plot 2922 was subdivided into plot 11651 in 2002, evidenced by Certificate of Title No. CR 35913, later transferred to the plaintiffs. Section 26 of the Land Registration Act makes the certificate prima facie evidence of ownership; no evidence of fraud or public land was adduced by the defendants.
Whether general damages for trespass should be awarded
Damages for trespass were not proved and were not awarded
The measure of damages is the difference in the value of the property immediately after the trespass or the cost of restoration, whichever is less. The plaintiffs produced no report showing damage; the structures were iron-sheet structures capable of being demolished to vacate the land, so no loss was demonstrated.
Whether the defendants' counterclaim for a declaration of acquisition by long occupation (adverse possession) can be granted
The counterclaim was dismissed for want of evidence
Although the defendants entered appearance and filed a defence and counterclaim, they adduced no testimony despite several adjournments. Their claims therefore remained unsubstantiated and the plaintiffs' evidence stood unchallenged, following the principle in Motex Knitwear Ltd v Gopitex Knitwear Mills Ltd.
Costs
Although the plaintiffs succeeded, each party was ordered to bear its own costs
Under section 27 of the Civil Procedure Act costs follow the event unless the court for good reason otherwise orders. The court exercised its discretion to order each party to bear its own costs given the defendants' failure to testify.
Legal principles established
#- A certificate of title under section 26 of the Land Registration Act is prima facie evidence that the named proprietor is the absolute and indefeasible owner, challengeable only on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
- Where a defendant, though having filed a defence and counterclaim, calls no evidence, the plaintiff's unchallenged evidence stands and the counterclaim must fail
- Costs follow the event unless the court for good reason otherwise orders, under section 27 of the Civil Procedure Act
Court orders
#- 1.The defendants or their agents are to vacate the suit property Plot No. 11651/1/MN within 90 (ninety) days upon service of this order and in default eviction orders to issue.
- 2.Each party to bear its own costs.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property (Plot No. 11651/1/MN, Kisauni, Mombasa); no specific constitutional or statutory provision invoked for jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Awadh & another (Administrators of the Estate of Omar Awadh Madhesh, Deceased) v Ramadhan & 9 others (Environment & Land Case 256 of 2014) [2024] KEELC 5435 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5435/eng@2024-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.