Salmin & 6 others v Chengo & 2 others (Environment & Land Case 128 of 2022) [2025] KEELC 1487 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Ownership of the suit properties
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
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.
Entitlement to permanent and mandatory injunction
Injunctions refused because the persons in actual possession (unknown third-party purchasers) were not joined to the suit
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.
Burden of proof in an uncontroverted suit
A plaintiff in an uncontested suit must still prove its case on a balance of probabilities
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.
Legal principles established
#- 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
#- 1.That the plaintiffs' suit is dismissed in its entirety.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.