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ELCDismissedELC Mombasa (suit number not stated in judgment)· [2025] KEELC 1487 (KLR)

Salmin & 6 others v Chengo & 2 others (Environment & Land Case 128 of 2022) [2025] KEELC 1487 (KLR)

Environment and Land Court
26 March 2025
2,102 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Landowners suing strangers over occupied property in Kenya must join the people actually in possession, or their case will fail even when nobody defends it.

What this practically means

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Executive summary

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The plaintiffs, registered owners of land parcels MN/11/10952 to 10958 in Mombasa, sued the 1st and 2nd defendants - a former casual caretaker and a former guard - alleging collusion to sell, rent or dispose of the suit properties, demolition of the perimeter wall and injury to the plaintiffs' representatives around 2020/2021. They sought permanent and mandatory injunctions, police assistance in enforcement, and costs. The 3rd defendant appeared but no defendant filed a defence or called evidence. PW1, the 5th plaintiff, adopted his statement and produced title documents dated 2011, 2012 and 2018. The court framed three issues: ownership, entitlement to remedies, and costs. It held that even in an uncontested suit the plaintiff bears the burden of proof on a balance of probabilities, citing Nganga v Kahiu. Section 26 of the Land Registration Act, as explained in Arthi Highway Developers, establishes indefeasibility of title, and the unchallenged titles proved ownership as at their dates of issue. However, PW1 admitted the 1st and 2nd defendants had sold the properties to unknown third parties in 2022 and left, and the plaintiffs did not know the identity or number of those in possession. There was also no evidence, such as current certificates of searches, of the current legal status of the properties. Following Ndeti v Ndeti, the court held that injunctions could not issue against unjoined third parties in possession, as no party should be condemned unheard. The suit was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Ownership of the suit properties

Holding

The titles produced by PW1 were sufficient proof of ownership as at their dates of issue and were unchallenged, but there was no evidence of the current legal status of the properties since issuance

Reasoning

PW1 produced title documents dated 2011, 2012 and 2018. The court accepted them as proof of ownership as of the dates noted thereon since no defendant impugned them. However, given testimony that the properties had been sold to unknown third parties in 2022, the court found no current certificates of searches proving the legal status of the properties had not changed since the titles were issued.

p. 4
02

Entitlement to permanent and mandatory injunction

Holding

Injunctions refused because the persons in actual possession (unknown third-party purchasers) were not joined to the suit

Reasoning

PW1 admitted the 1st and 2nd defendants sold the suit properties and left in 2022, and the plaintiffs did not know the names or number of the third parties in occupation. The court held that injunctions could not issue against persons who were neither defendants nor shown to hold title, without violating the rule that no party should be condemned unheard. The plaintiffs should have joined the persons in possession.

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Burden of proof in an uncontroverted suit

Holding

A plaintiff in an uncontested suit must still prove its case on a balance of probabilities

Reasoning

Though no defendant filed a statement of defence (the 3rd defendant's claimed defence of 7th March 2023 was not traced on record), the plaintiffs retained the legal burden under sections 106 to 109 of the Evidence Act to prove their allegations. Submissions on facts by a party that filed no pleadings and called no witnesses were held to be without basis.

p. 3

Legal principles established

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  • Even in uncontested suits the burden of proof on a claimant is not lessened and must be discharged on a balance of probabilities
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation or illegality
  • An injunction cannot issue against parties not joined to the suit as no party should be condemned unheard

Court orders

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  1. 1.That the plaintiffs' suit is dismissed in its entirety.
  2. 2.No orders as to costs.
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes touching on title and occupation of land (specific provision not cited in judgment)

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, "Salmin & 6 others v Chengo & 2 others (Environment & Land Case 128 of 2022) [2025] KEELC 1487 (KLR)", Case Analysis (2025). ELC Mombasa (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1487/eng@2025-03-26

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