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ELCPartially AllowedEnvironment and Land Case 248 of 2018· [2026] KEELC 5671 (KLR)

Tarus v Kishan Construction Ltd & 2 others

Environment and Land Court
17 September 2026
YAY. M. Angima
2,242 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa confirmed the plaintiff owns Mombasa/Hodi Hodi parcel 84 and ordered the construction company to vacate within 60 days.

What this practically means

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Executive summary

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The plaintiff sued for orders prohibiting the defendants from trespassing on or dealing with Mombasa/Hodi Hodi Settlement Scheme parcels 84 and 85, and for their vacation, claiming she had purchased both from James Hekana Okweh, tracing to the original allottees. The 1st and 2nd defendants denied her ownership, asserted they were registered proprietors since 06.11.2013 through a power of attorney holder, and counterclaimed for declarations of indefeasible ownership, invalidation of the plaintiff's titles, revocation of the titles and green cards, and a permanent injunction. The 2nd defendant died in 2022 and was never substituted, so his claim and counterclaim abated. At trial the plaintiff and a director of the 1st defendant testified; the Land Registrar tendered no evidence. The court framed six issues and found that parcel 84 was allocated to Dhahabu Kifaru Masha, who was only registered on 12.09.2014 after discharge of the SFT charge, making a legitimate 2013 title to the 1st defendant practically and logically impossible. The plaintiff's root of title was held legitimate; the 1st defendant's title did not trace to the original allottee and was tainted by illegality or fraud. The counterclaim failed. The court declined a prohibitory injunction as futile against past violations but ordered the 1st defendant to vacate parcel 84 within 60 days, failing which forcible eviction would follow. The claim against the Land Registrar was dismissed for want of a pleaded cause of action. Costs were awarded to the plaintiff against the 1st defendant only; the counterclaim and the 3rd defendant claim carried no order as to costs. Notably, the judgment never determines the plaintiff's claim over parcel 85.

Key legal issues

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01

Root of title to parcel 84

Holding

The plaintiff proved the legitimate root of her title tracing to the original allottee Dhahabu Kifaru Masha; the 1st defendant's 2013 title was illegitimate as the plot had not been discharged by SFT and the allottee was only registered in 2014.

Reasoning

The court examined the green card and allocation records: parcel 84 was allocated to Dhahabu Kifaru Masha, charged to SFT, discharged, and the allottee registered on 12.09.2014. No evidence showed Kadigo Kifaru Masha was ever allocated or registered as proprietor, nor any discharge of charge or certificate of outright purchase issued to him. A 2013 title therefore could not legitimately exist.

p. 4
02

1st defendant's counterclaim

Holding

Dismissed; the 1st defendant failed to prove any fraud, illegality or irregularity in the plaintiff's acquisition of parcel 84.

Reasoning

Having found the plaintiff's root of title legitimate and the 1st defendant's title not tracing to the original allottee, the court held there was no credible evidence of fraud, illegality or irregularity in the plaintiff's acquisition. The counterclaim reliefs - declarations of indefeasibility, revocation of the plaintiff's titles and injunction - therefore could not issue.

p. 4
03

Suit against the 3rd defendant (Land Registrar)

Holding

Dismissed; no adverse allegations or reliefs were pleaded against the Land Registrar and no reasonable cause of action was proved.

Reasoning

The plaintiff pleaded no fraud, illegality or irregularity against the Land Registrar and sought no specific relief against him. The court agreed with the Attorney General's submission that no reasonable cause of action was pleaded or proved against the 3rd defendant, and dismissed the claim with no order as to costs.

p. 4
04

Abatement against the 2nd defendant

Holding

The claim and counterclaim of the 2nd defendant, who died in 2022 without substitution under Order 24 of the Civil Procedure Rules, abated by operation of law.

Reasoning

The 2nd defendant died in 2022 during the pendency of the suit and no party substituted his personal representative under Order 24 of the Civil Procedure Rules. On 29.07.2025 the court declared the claim against him and his counterclaim abated by operation of law, and the judgment confirms those declarations.

p. 5

Legal principles established

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  • A title obtained before the Settlement Fund Trustees discharged the plot and before the original allottee was registered cannot be a legitimate title; the root of title must trace to the original allottee.
  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act, subject to the court's discretion.

Court orders

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  1. 1.Judgment entered for the plaintiff against the 1st defendant: the 1st defendant shall vacate Mombasa/Hodi Hodi Settlement Scheme/84 within 60 days, in default of which it shall be forcibly evicted
  2. 2.Plaintiff awarded costs of the suit against the 1st defendant only
  3. 3.1st defendant's counterclaim dismissed in its entirety with no order as to costs
  4. 4.Plaintiff's suit against the 2nd defendant (now deceased) declared to have abated by operation of law
  5. 5.2nd defendant's counterclaim declared to have abated by operation of law
  6. 6.Plaintiff's claim against the 3rd defendant dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 27 (proviso)
  • Civil Procedure RulesOrder 24
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) of the Constitution; ELC Act) - not expressly stated in the 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, "Tarus v Kishan Construction Ltd & 2 others", Case Analysis (2026). Environment and Land Case 248 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5671/eng@2026-09-17

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