Mohamed Ahmed Hassan, Seif Hemed & Others v Ali Mohamed Said & 30 Others
The bottom line
#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
#Executive summary
#Key legal issues
#Proof of plaintiffs' title and defendants' trespass
Plaintiffs proved ownership through succession proceedings; defendants, having adduced no evidence, were mere trespassers
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.
Defendants' counterclaim for adverse possession and relief against forfeiture
Counterclaim dismissed in its entirety for want of proof
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.
Quantum of general damages for trespass
Kshs. 100,000/- awarded severally against each defendant instead of the Kshs. 25 million sought
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.
Costs of suit and counterclaim
Costs of the suit to the plaintiffs; no order as to costs on the counterclaim
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.
Legal principles established
#- 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
#- 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.The defendants shall severally pay general damages of Kshs. 100,000/- each for trespass to land
- 3.The plaintiffs are awarded costs of the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.