Hemed & 18 others v Constitutuency Development Fund Board & 5 others; Jumaan & 17 others

ASIA JUMAAN KARAMA ..................................................... INTERESTED PARTY SHEIKH ALI ABDALLA ......................................................... INTERESTED PARTY SHAMAWIYA MZEE SHAMAWIYA ..................................... INTERESTED PARTY MAHFUDH SAID AMBER ..................................................... INTERESTED PARTY AS CONSOLIDATED WITH ENVIRONMENT & LAND CASE COUNTER CLAIM 18 OF 2013 BETWEEN ABDALLA SAID JUMAAN ................................................................. 1ST PLAINTIFF NURIA OMAR .................................................................................... 2ND PLAINTIFF SWALEH ISLAM SAID ........................................................................ 3RD PLAINTIFF MBARAK MOSOUD ........................................................................... 4TH PLAINTIFF FATMA ABEID SLUM ......................................................................... 5TH PLAINTIFF AHMED AWADH SALIM ................................................................... 6TH PLAINTIFF AHMED JUMAA YUNUS ................................................................... 7TH PLAINTIFF MOHAMED HASSAN MOHAMED .................................................. 8TH PLAINTIFF ABBAS MUHSIN ABDALLA .............................................................. 9TH PLAINTIFF RUBEYA ABDALLA RUBEYA ......................................................... 10TH PLAINTIFF SWABRI BASHIR SALIM ................................................................. 11TH PLAINTIFF FAHNI BASHIR SALIM .................................................................... 12TH PLAINTIFF CORNEL MBOGHOL RIGHA ........................................................ 13TH PLAINTIFF ABDURAHMAN ABUBAKAR MOHAMED ................................. 14TH PLAINTIFF ASIA JUMAAN KARAMA ............................................................... 15TH PLAINTIFF SHEIKH ALI ABDALLA ................................................................... 16TH PLAINTIFF SHAMAWIYA MZEE SHAMAWIYA ............................................... 17TH PLAINTIFF MAHFUDH SAID AMBER ............................................................... 18TH PLAINTIFF AND BREK SULUM HEMED ................................................................... 1ST DEFENDANT AWADH SALEH SAID .................................................................... 2ND DEFENDANT SAID SALEH SAID .......................................................................... 3RD DEFENDANT DISTRICT LAND REGISTRAR, MOMBASA ............................. 4TH DEFENDANT https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21197/eng@2023-11-01 2

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JUDGMENT 1. Brek Sulum Hemed, the plainti, commenced this suit against the Constituency Development Fund Board and Kenya Rural Roads Authority, the 1st and 2nd defendants respectively, through the plaint dated the 24th January 2013 and led on the 25th January 2013 seeking for inter alia: a. Declaration that defendants’ action of encroaching onto plainti’s land parcel MSA/Block XV1/564, suit property, and constructing a road thereon was unlawful and illegal. b. Interlocutory injunction pending the hearing and determination of this suit. c. Permanent injunction restraining the defendants from entering or interfering with the suit property, at Majengo Estate, Mombasa Island. d. Mandatory injunction compelling the defendants in person or their contractors to wit, Ms. Rons Investment Ltd, to pull out at their expense the portion of the road found to have been constructed on the suit property, remove the debris and restore the land to the state it was before encroachment. Alternatively, the plainti be allowed to pull out such portion of the road and the cost be recovered from the defendants. e. Damages. f. Cost. g. Interest in (e) and (f) at courts rate from date of judgement till payment in full. h. Any other relief the court may deem t and just to grant. 2. The claim is opposed by the 1st defendant through its statement of defence dated the 6th March 2013 among others denying any involvement in what the plainti had alleged, either directly or through agent and sought for the suit to be dismissed with costs. 3. The plainti’s claim was also denied by the 2nd defendant through its statement of defence dated the 11th December 2013 inter alia averring that it was only a project manager due to its technical expertise and prayed for the suit to be dismissed with costs. 4. That vide the application dated the 11th December 2013 and determined through the ruling delivered on the 25th February 2014, the eighteen (18) Applicants were allowed to join in the proceedings as necessary or interested parties and to le their defence and counterclaim if any in the specied timelines. They then led the defence and counterclaim dated the 12th March 2014 in which they inter alia averred that the suit property is a nullity as it was curved out of a road reserve; that the defendants action of constructing the road was lawful and the defendants had not encroached onto the plainti’s land; that the Municipal Council of Mombasa had through its Town Planning and Works Committee resolved to recommend to the Council that no building plans in respect of plots on road reserves, including that of the plainti, should be approved; and that the plainti’s suit should be dismissed with costs. 5. The necessary parties’ counterclaim is against Brek Sulum Hemed, Awadh Saleh Said, Said Saleh Said and District Land Registrar as the 1st to 4th defendants respectively. They inter alia averred that the 2nd and 3rd defendants had sold to the necessary parties their parcels of land at Mwembe Tanganyika and were issued with title documents. That the 2nd to 4th defendants later fraudulently dealt with the road reserves which was public property. They among others sought for: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21197/eng@2023-11-01 3

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a. Dismissal of original petition with cost. b. Declaration that the plainti’s title to Mombasa/Block XV1/564 was null and void. c. Permanent injunction restraining the plainti from interfering with the road reserve existing in Mwembe Tanganyika. d. The 4th defendant be directed to cancel the title deed for Mombasa/Block xv1/564. e. The 2nd and 3rd defendants in the counterclaim to meet the costs of restoring the road reserve to its original form. Leave to serve the 2nd and 3rd defendants in the counterclaim through advertisement was sought through the application dated the 21st August 2019 and obtained vide the order of 29th October 2019. 6. The plainti opposed the counterclaim through the answer to the defence and defence to the counterclaim dated the 24th March 2014 inter alia denying that the suit property lies on road reserve; that the counterclaim is defective and unprocedural as it introduced new parties who were not part of those granted leave of joinder in the ruling of 25th February 2014 and seeks dismissal of a petition that is not part of this suit. 7. The hearing commenced on the 3rd March 2021 with Brek Sulum Hemed, the plainti, testifying as PW1. He told the court that while working in Saudi Arabia, he received a call from his wife on the 5th January 2013 telling him that the defendants wanted to construct a road on his plot that he had bought from Said Swaleh “Nguru” and had been issued with title document in 2002. He came back to Kenya and on nding the construction going on, he led this suit. He produced copies of his title, search certicate to the suit property, receipts for rates payments and approved development plans among others annexed to his lists of documents as exhibits. He sought for the cabro on the road made on his plot to be removed to enable him develop his plot. He also prayed for damages. During cross examination, PW1 testied that his advocate applied for and obtained a copy of the tender the 2nd defendant had awarded to Rollings Ltd to build cabro road on the suit property. That Swaleh Nguru had subdivided the land in 1991 and that all the plots have access to the roads. 8. The 1st defendant’s case was marked closed on the 20th September 2021 after they failed to attend court for defence hearing. 9. The adavit sworn by Ali Omar Ali for the 2nd defendant on the 30th May 2013 and led on 10th June 2013 was adopted as the witness’ evidence in chief on the 20th September 2021 awaiting his cross examination. The witness was availed on the 24th September 2021 for cross examination and he told the court that the 1st defendant had asked the 2nd defendant to supervise the road construction. That a conict arose between the plainti and 1st defendant making the 2nd defendant withdraw from the project after being served with the suit papers. That the project was for improvement of an already existing road and not construction of a new one. That the works were not completed by the time the 2nd defendant withdrew from the road project. 10. The case for the necessary parties commenced on the 9th June 2022 with Sammy Wambua Juma, Regional Surveyor Coast, testifying that the dispute in court involves plots subdivided from the original plot number 19 that was subdivided into several plots, roads of access provided and an open space numbered 316/XV1/Mombasa Island created. That the road in dispute is the one running from Parsee road to Shari Nassir road. That the road is 15 meters wide that was subsequently subdivided without a survey scheme by a physical planner. He conrmed to the court that he had visited the locus and found a building protruding onto the road more than the others, hence hindering access https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21197/eng@2023-11-01 4

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by other plot owners. The witness was stood down to avail a legible copy of the report dated the 17th January 2013 that his oce had prepared. The witness was recalled on the 23rd November 2022 and he produced the letter and the layout of the area showing that the suit property was among the plots created on the road reserve leaving a road of 5 meters as exhibits. That he visited the suit property and conrmed it was positioned between two roads, one of seven meters and the other eight meters. That he had not seen an approved survey scheme of that area with a 15-meter road. The second necessary parties’ witness was John Wambua, County Physical Planner, who produced the minutes of 24th July 1995 containing a resolution that the Commissioner of Lands be asked to revoke the plots on the roads of access. The witness conrmed that the minutes did not specically mention the suit property and that he could not tell whether it was forwarded to the Commissioner of Lands. The third necessary parties’ witness was Fahmi Bashir, 12th necessary party, who told the court that they asked to join in the suit to understand why the construction of a road had been ordered to stop. He adopted his statement dated the 10th June 2020 as his evidence in chief. He relied on the documents on the list of documents dated the 29th April 2024 and 19th June 2020. During cross examination the witness stated that his plot is number 979 and is still in his late father’s name. That if the plainti is allowed to develop his plot, it will block the road of access to his plot. The next necessary parties’ witness was Abdalla Said Jumaan, the 1st necessary party. He adopted his statement dated the 29th April 2014 and produced a copy of the title to his plot as exhibit. 11. The 4th defendant to the counterclaim, Land Registrar, Mombasa, testied as DW1. She testied that from the documents in her oce, there is nothing to show that the suit property was on a road reserve. That if the said property was on a road reserve or set aside for public road or use, the title documents would not have been issued. She produced copies of the green card, transfer document and the old cancelled title of the suit property as exhibits. During cross examinations, DW1 testied that she had not seen the survey plans under which the suit property was created, but added that the documents she had produced over the suit property were genuine. That her oce had not received any correspondence from the survey oce to the eect that the suit property was on a road reserve. That the documents in her oce shows that the plot was originally allocated to the person who transferred it to the plainti herein. 12. The learned counsel for the plainti, necessary parties, 1st defendant, the A/G for 2nd defendant and 4th defendant in the counterclaim led their submissions dated the 14th April 2023, 26th May 2023, 8th June 2023 and 13th June 2023 respectively which the court has considered. 13. The following are the issues for the court’s determinations: 14. a. Whether the plainti’s title to the suit property has been successfully impugned. b. Alternatively, whether the suit property has been shown to be part of the road reserve. c. Whether the plainti has proved that the defendants trespassed onto the suit property. d. Whether the plainti and or the necessary parties are entitled to the prayers sought. e. Who pays the costs. The court has carefully considered the pleadings by the parties, the evidence tendered, submissions by the learned counsel for the parties and come to the following conclusions: a. The evidence availed by the plainti, defendants and necessary parties has conrmed that Runs Investments Ltd had been contracted by the 1st defendant to do some works on Mwembe Tanganyika access road. The letter dated the 13th November 2012 from the 1st https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21197/eng@2023-11-01 5

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defendant’s Accounts Manager in the 1st defendant’s list of documents conrms that position and also show that the 2nd defendant was appointed as the works project manager. b. The plainti’s position is that in the execution of the said road project works, his perimeter fence on his plot number Mombasa/Block XV1/564, the suit property, was demolished by the contractor has not been disputed by the defendants. Indeed, the necessary parties conrmed that the road project was being done on the plot which the plainti claim as his but which to them was part of the road reserve. c. The plainti testied how he acquired the suit property and insisted it was not part of the road reserve. It was his testimony that he got the title to the suit property registered in his name in 2002. The Land Registrar, DW1, produced copies of the green card and certicate of ocial search over the suit property conrming that the said plot was transferred to the plainti and was registered in his name on the 28th October 2002 by the rst registered owner. To the Land Registrar, the plainti’s title documents over the suit property are genuine and there is no evidence presented to her oce to suggest that the land was part of a road reserve as alleged by the necessary parties. d. The available evidence further shows that the land in that area was initially Plot number 19, a private land, owned by the Swaleh Ngurus who later subdivided it into undisclosed number of plots and disposed them to the various people including the plainti and necessary parties. The court was told that roads of access were provided for during the said subdivision exercise. Some of the roads in the neighbourhood of the suit property now in dispute are of seven and eight meters. That was according to the testimony of Sammy Wambua Juma, the Regional Coast Surveyor, who was the rst witness for the necessary parties. Has there been similar claims over the plots adjacent to the seven and eight meter roads like the one raised in relation to the suit property that is adjacent to a reportedly ve meter road? If this is a general concern by the residents in the adjoining plots, possibly they should consider petitioning the County Government of Mombasa and the National Land Commission to help address the issue in a wholesome way. If there is evidence of fraud in the transactions leading to the widths of the roads there shrinking, then they should consider lodging a formal complaint with the Ethics and Anti- Corruption Commission and or the Director Criminal Investigations for appropriate investigations and action. e. The necessary parties’ claim that the Mwembe Tanganyika access road was meant to be a 15meter road and that the suit property was fraudulently curved out of the road reserve needed to be proved to the standard required before the court can make a nding in their favour. The standard of proof in fraud matters is above that of balance of probabilities and below that of beyond reasonable doubts. That as the defendants have not in their statements of defence alleged fraud attributed to the plainti, that burden of prove fell upon the necessary parties. Under sections 107 to 109 of the Evidence Act chapter 80 of Laws of Kenya, the one who alleges a fact has the duty to tender proof. The necessary parties at paragraph 11 of their defence and counterclaim pleaded fraud attributed to the 2nd to 4th defendants in the counterclaim. The plainti is the 1st defendant in the said counterclaim and there are no averments relating to fraud that were alleged against him in the counterclaim. The necessary parties have also failed to tender proof of fraud in the creation of the suit property and its registration in the name of the plainti. The necessary parties counterclaim therefore fails in total. f. The 1st defendant never tendered evidence but had at paragraph 4 of their defence dated 6th March 2013 averred that “1st defendant never instructed any of the mentioned agents as claimed https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21197/eng@2023-11-01 6

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in the plaint.” That as the 1st defendant did not tender evidence to support its averments and challenge the evidence presented by the plainti and 2nd defendant that it was indeed the one funding the road project, procuring the contractor and appointing the project manager, then its claim of innocence in what befell the plainti has no basis. Indeed, the 1st defendant is the one liable for the damages caused on the plainti’s plot by its agent, the duly appointed contractor for the road project in dispute. The involvement of the 2nd defendant in the project has been shown to have been as a project manager, also appointed by the 1st defendant, but cannot avoid blame considering its statutory role in matters roads. The 1st defendant therefore takes full responsibility for the actions or omissions of its agents and if either of them went beyond the instructions given, then it is for the 1st defendant to initiate the appropriate action in law for reimbursements. 15. g. That though the plainti has at prayer (e) of the plaint sought for damages, he has not tendered evidence that could assist the court assess the appropriate level of damages to award. However, as there is evidence of trespass which is actionable, the court is of the view that an award of Kshs.100,000/= would be fair and just in the circumstances of this case. h. That considering the counterclaim herein is in nature of a public litigation, and even though it has failed, the court is of the view that each party to bear their own costs the provisions of section 27 of Civil Procedure Act chapter 21 of Laws of Kenya notwithstanding. However, in respect of the plainti’s suit, his costs should be paid by the 1st defendant. Flowing from the above conclusions, the court nds and orders as follows: a. That the necessary parties have failed to prove their counterclaim to the standard required by the law. The counterclaim is therefore dismissed with an order that each party to bear their own costs. b. The plainti has proved his claim on a balance of probabilities and judgement is hereby entered for him in terms of prayers (a), (b), (c), (d) and (f) of the plaint dated the 24th January 2013. c. That the 1st defendant to pay the plainti Kshs.100,000/= as general damages for trespass. Orders accordingly. DATED AND VIRTUALLY DELIVERED THIS 1ST DAY OF NOVEMBER 2023. S. M. KIBUNJA, J. ELC MOMBASA. In The Presence Of: Plainti: M/s Abdi for Odongo Defendants : Mr. Muriuki for Opondi for 1st defendant. Necessary Parties Mr. Hamza. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21197/eng@2023-11-01 7

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