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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 152 (KLR)

Mwenye & 5 others v Tsama & 3 others (Environment & Land Case 136 of 2020) [2025] KEELC 152 (KLR)

Environment and Land Court
24 January 2025
LNL.L. Naikuni
8,586 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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The Mombasa Environment and Land Court declared two Kilifi plots belong to the registered owners and ordered the Plaintiffs to vacate, pay costs.

What this practically means

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Executive summary

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This was an original land dispute before the Environment and Land Court at Mombasa concerning plots Mgumopatsa/Mazeras/130 and 135 within the Mazeras adjudication section in Kilifi County. Six Plaintiffs claimed to be the bona fide legal and beneficial owners of both plots as clan property occupied for over seventy years, alleging the 1st and 2nd Defendants fraudulently procured registration, and sought a permanent injunction, declarations of ownership and registration. The 1st and 2nd Defendants filed a Statement of Defence and Counter-Claim asserting that plot 135 solely belonged to the 1st Defendant's late father, Tsama Mkuzi Saha, and was transmitted to the 2nd Defendant through succession, while plot 130 was registered in the names of three kin each holding an undivided one-third share. On 25th October, 2022 the Plaintiffs did not attend hearing; their case was dismissed for non-attendance under Order 12 Rule 1 and for want of prosecution under Order 17 Rules 1 and 3 of the Civil Procedure Rules, 2010. The Defendants testified through DW-1 and DW-2 and closed their case; the Plaintiffs adduced no evidence. The court framed three issues: registered ownership, entitlement to Counter-Claim orders, and costs. Applying the rule that even an undefended claim must be proved on a balance of probabilities (Kirugi v Kabiya; Gichinga Kibutha), and Sections 24, 25 and 26 of the Land Registration Act, 2012, the court held the 1st and 2nd Defendants absolute and indefeasible owners, no appeal having lain from the adjudication, the Tribunal award adopted in SRMCC (Mbsa) No. 27/2006, or the Malindi ELC No. 163 of 2013 judgment. The Counter-Claim succeeded in its entirety: the Plaintiffs were ordered to vacate and hand over vacant possession of plot 135. Costs of the Plaint and Counter-Claim were awarded to the 1st and 2nd Defendants against the Plaintiffs jointly and severally, with the 3rd and 4th Defendants bearing their own costs.

Key legal issues

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01

Whether the 1st and 2nd Defendants are the registered owners of the suit properties

Holding

Yes - the court found that plot No. 135 was registered in the name of the late Tsama Mkuzi Saha and transmitted to the 2nd Defendant, and plot No. 130 was registered in the names of three proprietors each holding a 1/3 undivided share, and that title under the Land Registration Act, 2012 is absolute and indefeasible

Reasoning

The court traced the adjudication process under the Land Adjudication Act, Cap. 284, noting that no objection or appeal was raised by the Plaintiffs or their fathers from the adjudication, the Tribunal award in SRMCC (Mbsa) No. 27/2006, or the Malindi ELC No. 163 of 2013 judgment. Titles and grants of letters of administration were produced. The court applied Sections 24, 25 and 26 of the Land Registration Act, 2012, holding the Defendants absolute and indefeasible owners.

p. 15
02

Whether the 1st and 2nd Defendants are entitled to the orders sought in the Counter-Claim

Holding

Yes - the Counter-Claim succeeded in its entirety and the Defendants were granted vacant possession of plot No. Mgumopatsa/Mazeras/135

Reasoning

Although the Counter-Claim was undefended, the court held the Defendants still had to prove their case on a balance of probabilities. The Plaintiffs adduced no evidence. The court found the Plaintiffs entered the suit property without consent, took possession and committed the acts complained of, and that Section 152A of the Land Act prohibits unlawful occupation of land.

p. 15
03

Who bears the costs of the suit and the Counter-Claim

Holding

Costs follow the event; the 1st and 2nd Defendants as successful parties were awarded costs of both the Plaint and the Counter-Claim against the Plaintiffs jointly and severally

Reasoning

The court applied Section 27(1) of the Civil Procedure Act and the principle in cited authorities that costs are discretionary but ordinarily follow the event, and that the general rule awarding costs to the successful party should not be departed from without good grounds. The 3rd and 4th Defendants (state officers who took no part) were left to bear their own costs.

p. 16

Legal principles established

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  • Even where a case proceeds as formal or undefended proof, the party bearing the burden must still prove their case on a balance of probabilities
  • Uncontroverted evidence does not automatically entitle a claimant to judgment; the burden of proof must still be discharged
  • Registration of a person as proprietor of land vests absolute ownership, and a certificate of title is prima facie evidence of absolute and indefeasible ownership subject only to fraud, misrepresentation, illegality, unprocedural acquisition or corruption
  • Costs follow the event and the successful party is typically entitled to costs unless there are compelling reasons to decide otherwise

Court orders

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  1. 1.Judgment entered in favour of Julius Mkauma Tsama and Mbodze Tsama Mkauma (1st and 2nd Defendants) in respect of the Counter-Claim dated 29th October, 2020 in its entirety with costs and interests
  2. 2.The Plaint dated 21st September, 2020 stood dismissed as of 25th October, 2022 for non-attendance under Order 12 Rule 1 and for want of prosecution under Order 17 Rules 1 and 3 of the Civil Procedure Rules, 2010, with costs to the Defendants
  3. 3.The Plaintiffs and/or their agents, assigns and any other person claiming through them to vacate and hand over vacant possession of plot No. Mgumopatsa/Mazeras/135 to the 1st and 2nd Defendants
  4. 4.The 1st and 2nd Defendants to have the costs of the Plaint and the Counter-Claim paid by the Plaintiffs jointly and severally; the 3rd and 4th Defendants to bear their own costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes; jurisdiction of the Court was admitted by the parties (the 1st and 2nd Defendants contending only that Malindi High Court had proper geographical jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mwenye & 5 others v Tsama & 3 others (Environment & Land Case 136 of 2020) [2025] KEELC 152 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/152/eng@2025-01-24

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