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ELCPartially AllowedNot stated in the judgment as provided· [2024] KEELC 5435 (KLR)

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)

Environment and Land Court
24 July 2024
2,419 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiffs, administrators of the estate of Omar Awadh Madhesh (deceased), sued the defendants for trespass onto Plot No. 11651/1/MN at Kisauni, Mombasa, seeking an eviction order, removal of structures, and general damages for trespass. The defendants filed a defence and counterclaim seeking a declaration that they had jointly acquired the parcel by virtue of long and uninterrupted occupation exceeding twelve years, and dismissal of the suit. The defendants entered appearance but called no evidence despite several adjournments; only the plaintiffs' witnesses, PW1 Mbarak Hamed Mbarak (a grandson of the deceased) and PW2 Barka Omar Awadh, testified. The court framed three issues: ownership of the plot, the counterclaim, and costs. Applying section 26 of the Land Registration Act, the court found the certificate of title (CR 35913, transferred to the plaintiffs on 2nd June 2015) prima facie proof of ownership, traced the title history from the mother title, and held the plaintiffs registered owners, the defendants having adduced no evidence of fraud or that the land was public land. General damages for trespass were refused because no damage report was produced and the mabati structures were capable of demolition. The counterclaim failed for want of testimonial evidence. The court ordered the defendants and their agents to vacate the suit property within ninety days of service, failing which eviction orders would issue, and ordered each party to bear its own costs. Judgment delivered at Mombasa on 24th July 2024 by N.A. Matheka J.

Key legal issues

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01

Who is the legal owner of Plot No. 11651/1/MN

Holding

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

Reasoning

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.

p. 4
02

Whether general damages for trespass should be awarded

Holding

Damages for trespass were not proved and were not awarded

Reasoning

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.

p. 5
03

Whether the defendants' counterclaim for a declaration of acquisition by long occupation (adverse possession) can be granted

Holding

The counterclaim was dismissed for want of evidence

Reasoning

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.

p. 5
04

Costs

Holding

Although the plaintiffs succeeded, each party was ordered to bear its own costs

Reasoning

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

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  • 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

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  1. 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. 2.Each party to bear its own costs.

Authorities

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Legislation

  • Land Registration Act, Cap 300Section 26(1)
  • Civil Procedure Act, Cap 21Section 27(1)

Cases cited (8)

  • Edward Mariga Through Stanley Mobisa Mariga Vs. Nathaniel David Shulter & Another
    (1979) eKLR
  • CMC Aviation Ltd Vs. Crusair Ltd (No.1)
    (1987) KLR 103
  • Philip Ayaya Aluchio vs Crispinus Ngayo
    (2014) eKLR
  • Nakuru Industries Limited vs S S Mehta & Sons
    (2016) eKLR
  • Willesden Investments Limited vs. Kenya Hotel Properties Limited
    NBI H.C.C. No. 367 of 2000
  • Motex Knitwear Limited Vs. Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No. 834 of 2002
  • Autar Singh Bahra And Another Vs. Raju Govindji
    HCCC No. 548 of 1998
  • Hostler – VS – Green Park Development Co.
    986 S.W 2d 500 (No. App. 1999)
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

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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, "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.