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ELCPartially AllowedELC No. 47 of 2009· [2026] KEELC 5778 (KLR)

Mohamed Ahmed Hassan, Seif Hemed & Others v Ali Mohamed Said & 30 Others

Environment and Land Court
24 September 2026
1,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Mombasa court ordered 24 occupants off prime Mombasa land, fined each Kshs. 100,000, and threw out their counterclaim because they never showed up to prove it.

What this practically means

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Executive summary

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The plaintiffs, as legal representatives of the estate of Latifa Amir Jumadar, registered proprietor of L.R. No. 253/II/Mainland North, sued 31 defendants for eviction and general damages for trespass. Several defendants denied trespass, pleaded they were rent-paying tenants, and counterclaimed for adverse possession, lawful purchase without notice of defective title, relief against forfeiture under Section 114 of the Indian Transfer of Property Act 1882 and refund of goodwill. Twenty-three defendants and later the 8th defendant settled with the plaintiffs through a mediation agreement dated 03.06.2024; the suit proceeded against 24 remaining defendants who neither attended the hearing nor tendered evidence, with 18 served by substituted newspaper advertisement. Y. M. Angima J held that the plaintiffs proved registered ownership through succession proceedings and that, absent any evidence of consent or lawful justification for occupation, the defendants were mere trespassers; their claim was proved on a balance of probabilities. The counterclaim failed entirely for want of evidence. The court granted an eviction order with 60 days to vacate, failing which forcible eviction would follow; awarded general damages of Kshs. 100,000/- severally against each defendant, declining the Kshs. 25 million sought; awarded the plaintiffs costs of the suit but none on the counterclaim, which was dismissed with no order as to costs. Judgment was delivered virtually at Thika on 24 September 2026 despite the Mombasa station, an anomaly flagged.

Key legal issues

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01

Proof of plaintiffs' title and defendants' trespass

Holding

Plaintiffs proved ownership through succession proceedings; defendants, having adduced no evidence, were mere trespassers

Reasoning

The 24 defendants who were not party to the mediation settlement neither attended the hearing nor tendered evidence. The plaintiffs' evidence of registered ownership through succession stood unchallenged and uncontradicted. Without any evidence of consent, tenancy or other lawful justification for occupation, the court accepted the plaintiffs' testimony that the defendants were trespassers, proved on a balance of probabilities.

p. 6
02

Defendants' counterclaim for adverse possession and relief against forfeiture

Holding

Counterclaim dismissed in its entirety for want of proof

Reasoning

The counterclaiming defendants pleaded adverse possession exceeding 12 years, lawful purchase without notice of defect in title, and relief against forfeiture under Section 114 of the Indian Transfer of Property Act 1882. Having failed to attend court or tender any evidence, they discharged no burden of proof. The counterclaim therefore failed entirely, and no relief against forfeiture or refund of goodwill was available to them.

p. 8
03

Quantum of general damages for trespass

Holding

Kshs. 100,000/- awarded severally against each defendant instead of the Kshs. 25 million sought

Reasoning

The court accepted that the plaintiffs were entitled to general damages for trespass to land but declined the Kshs. 25 million advanced in submissions. It assessed damages at Kshs. 100,000/- against each of the 24 defendants severally, an individualised rather than global award, without detailed reasoning on the assessment criteria.

p. 7
04

Costs of suit and counterclaim

Holding

Costs of the suit to the plaintiffs; no order as to costs on the counterclaim

Reasoning

Applying the proviso to Section 27 of the Civil Procedure Act, costs follow the event and the successful plaintiffs were awarded costs of the suit. However, since the counterclaim was never prosecuted at the hearing, the court declined to award the plaintiffs costs of the counterclaim, dismissing it with no order as to costs.

p. 8

Legal principles established

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  • A party who alleges trespass or claims adverse possession bears the burden of proving it; failure to adduce evidence at trial is fatal to the claim and counterclaim.
  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless the court shows good reason otherwise.

Court orders

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  1. 1.The named defendants shall vacate and hand vacant possession of the portions of L.R. No. 253/II/Mainland North in their occupation within 60 days, in default of which they shall be forcibly evicted
  2. 2.The defendants shall severally pay general damages of Kshs. 100,000/- each for trespass to land
  3. 3.The plaintiffs are awarded costs of the suit
  4. 4.The defendants' Counterclaim is dismissed in its entirety with no order as to costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property L.R. No. 253/II/Mainland North

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, "Mohamed Ahmed Hassan, Seif Hemed & Others v Ali Mohamed Said & 30 Others", Case Analysis (2026). ELC No. 47 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5778/eng@2026-09-24

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