Technical University of Mombasa v Jamad & 16 others

JUDGMENT 1. 2. The Plainti instituted this suit through the plaint dated 18th June 2009 as amended on 19th February 2024. It is the plainti’s case that it is the registered owner of Plot No. Mombasa/Block XI/386, suit property, measuring 4.26acres acquired it in the name of its precursor, Mombasa Institute of Muslim Education, on 3rd February 1953. That the plainti changed name and status variously from Mombasa Institute of Muslim Education to Mombasa Polytechnic University College and later Technical University of Mombasa. Under the University Act 2012, the plainti acquired a charter on 30th January 2013 to operate as a fully-edged public university and all rights, liabilities and assets held by Mombasa Polytechnic University College were automatically transferred to the Technical University of Mombasa. It is the plainti’s case, that the defendants have encroached on the suit property, hived o a portion thereof, and commenced construction of a building. The plainti prayed for judgment against the defendants jointly and severally for: 1. “A declaration that the plainti is the registered proprietor of the suit property has an absolute and indefeasible title to the suit property and therefore the defendants are illegally in occupation of the same devoid of any rights of interest, legal, benecial, or equitable in the suit premises Plot No. Mombasa/ Block XI/386. 2. A declaration that the defendants ought to vacate Plot No. Mombasa/Block XI/386 and give vacant possession of the plaintis forthwith and in default an order of eviction to be granted as a matter of right. 3. An order of eviction against the defendants specically to demolish and remove all the illegal structures and or building erected on Mombasa/Block XI/386 at the defendant’s cost be issued and that the District Commissioner Mombasa District or any other ocer he may delegate for that purpose be ordered to eect the said eviction and demolition of all the said illegal structures with the help, protection and assistance of the ocer commanding police division (OCPD) Makupa Police Station Mombasa and any other ocer he may delegate for that purpose. 4. That a permanent injunction do issue restraining the defendant herein by themselves, their agents, employees, relatives or family members or any other person whomsoever and whatsoever from constructing or erecting any building or structures or Mombasa/Block XI/386 of whatsoever nature of from occupying residing, utilizing or in any other manner whatsoever from further committing acts of trespass or adversely interfering with the plainti’s rights and interest and quiet possession and enjoyment of Mombasa/Block XI/386 or continuing so to do at all. 5. Any other order the honourable court may deem t and just in the circumstances. 6. Costs.” The defendants led a statement of defence and counterclaim dated 3rd September 2009 and denied the plainti's ownership to the suit property. The defendants denied any sale of the suit property between https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13257/eng@2024-11-20 2

page 2 of 10

the plainti and Mombasa Institute of Muslim Education and stated that they were not privy to that contract. The defendants maintained that they were not trespassers, but had built houses on the suit property years ago. In their counterclaim, the defendants contended that they had acquired title to the suit property through adverse possession having settled on the suit property for an uninterrupted period of 40 years. They averred that the plainti cannot seek to demolish their houses without compensation and prayed for judgment to be entered against the plainti for: a. “A declaration that the defendants are entitled to orders of the counterclaim as sought in the counterclaim. b. A declaration that the purported sale and subsequent transfers are illegal perse c. Costs.” 3. The plainti responded to the defence and counterclaim with a reply to defence and defence to counterclaim dated 17th May 2024 inter alia averring that they are the registered owner of the suit property having acquired it in 1953. That the plainti has been the registered owner for over 56 years and that the defendants have no legal rights over the suit property. The plainti reiterated that the defendants are trespassers and their continued occupation of the suit property is illegal and an infringement to the plainti’s right to its proprietorship, possession and usage. In defence to the counterclaim, the plainti maintained that it was a fully-edged public University, and the suit property is therefore public land that cannot be acquired by way of adverse possession. The plainti prayed for the counterclaim to be dismissed with costs and for judgment to be entered against the defendants as prayed for in the plaint. 4. During the hearing, the plainti called John Chege, who testied as PW1 and the defendants called Ali Said Omar who testied as DW1. 5. PW1 testied inter alia that Mombasa Institute of Muslim Education bought the suit property measuring 4.26 acres in 1953, and the certicate of title was issued on 15th June 2009. He contended that the plainti had developed hospitality facilities and lecture halls as well as hostels on the suit property, but a portion of it was occupied by the defendants, as shown in the survey report dated 27th October 2021. During cross-examination PW1 admitted that though they had sued 17 people only, there were approximately 81 people in occupation on the land. That the 17 defendants were part of the 81 people that were occupying the suit property. He claried that title documents show the original property was 5.26 acres and 4.26 acres was subdivided as the suit property. PW1 insisted that the defendants settled on the suit land after it was bought by the plainti in 1953 as it was vacant at the time. That the letter of 4th November 2004 does not state that the original squatters have any rights over the suit land, but it simply identied the squatters and stated they should vacate from the suit property. 6. DW1 testied that he was born on the suit property in 1954 as the last born of his family. That their rst born was born in 1938 on the land, died in 2022 and was buried on that land. He claimed that the Mombasa Muslim Institute of Education was established while they were already in occupation of the land. He contended that he was among the rst 25 people to occupy the suit land. That the land owned by Mombasa Muslim Institute of Education was separate from the one they occupied, that was part of the Muslim Institute’s land and not on their land. DW1 insisted that the plainti took the suit land from the squatters and developed it, while they have been in occupation for over 100 years and cannot be evicted by the school as it found them there. In cross-examination DW1 claimed that their houses were over 100 years old. That he inherited his house from his parents, but indicated he had not brought photographs of the same. That the original owners of the land had given a portion thereof to a Muslim institute and the other portion to the defendants. That it is true the defendants occupied https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13257/eng@2024-11-20 3

page 3 of 10

the land in dispute with the permission from the original owner and not the plainti. He stated that it is true the receipts led in court showed that the land belonged to the plainti and that they were paying rent of Kshs 7. He agreed that they had received a letter asking for their eviction but insisted it was only addressing illegal squatters. He conrmed that the plainti is a public institution established with public funds, but claimed that the original Muslim institute was established by and for Muslim community only. He conrmed that they were paying rent to the Muslim institute, but stopped paying in 1961 after the government took it over, and that nobody had demanded that they pay rent ever since. 7. The learned counsel for the plainti and defendants led their submissions dated the 3rd September 2024 and 11th October 2024 respectively, which the court has considered. 8. The following are the issues for the determinations by the court: 9. a. Who between the plainti and defendants is the legal owner of the suit property. b. Whether the suit property is public or private property. c. Whether defendants have acquired title to the suit land under adverse possession. d. Who pays the costs? The court has carefully considered the parties’ pleadings, oral and documentary evidence by PW1 and DW1, submissions by the learned counsel, superior courts decisions thereon, and come to the following determinations: a. The plainti’s case is that the original parcel where the suit property arose from, was LR. 106/10, Section 11, Mombasa, which was 5.6 acres, under the title acquired on 25th June 1928 under the Town Planning Amendment Ordinance, 1927. The original land was then subdivided, and portions thereof sold out. The plainti, then known as Mombasa Institute of Muslim Education [MIOME], bought the suit property measuring 4.26 acres for Kshs.160,000 by the indenture dated 20th April 1953 from Estate Syndicate Limited which had bought the original parcel, Plot No. Subdivision No. 106 Section 11 (XI) measuring 5.06 acres on 14th October 1948, from Adulrehman Bin Miran. The plainti was registered as the proprietor of the land, Mombasa/Block XI/386, measuring 4.26 acres on 15th June 2009. b. The title held by the plainti is indefeasible evidence of the plainti’s ownership of land. Therefore, the plainti is conferred with all the rights and privileges accruing as provided for in sections 24 and 25 of the Land Registration Act, including the right to possession, to a quiet and peaceful occupation and right to use of their property. Section 24 (a) of the Land Registration Act, states that: “ Subject to this Act— (a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. Section 25 (1) of the Land Registration Act, (1) The rights of a proprietor, whether acquired on rst registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13257/eng@2024-11-20 4

page 4 of 10

belonging thereto, free from all other interests and claims whatsoever, but subject— a. to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and b. to such liabilities, rights and interests as aect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.” c. On the issue of whether the defendants have trespassed onto the plainti’s suit property or have acquired title to the suit property by way of adverse possession, the plainti insisted that the defendants are trespassers on the suit property, having moved onto it because it was then vacant. The defendants in their counterclaim claimed to have acquired title to the suit property by way of adverse possession. The survey report that was prepared by Sammy Wambua, the Regional Surveyor dated 27th October 2021 and led in court on 10th March 2022, that was admitted as an exhibit by consent, established that the defendants are occupying 1.0206ha of Plot No. MI/XI/386, the suit property, that belongs to the plainti. The report further shows that out of the 4.26 acres of the suit land, the plainti occupies 1.742 acres, while the defendants and others occupy 2.522 acres. The defendants’ claim that the land they occupy was dierent from that owned by the plainti cannot therefore be based on facts, because the surveys report clearly show the portion is part of the plainti’s land. d. The defendants claimed that they had occupied that portion of the suit property before the plainti came to being, and that their houses are away from that of the university. However, as established by the surveyor’s report, the defendants have occupied or encroached on part of the suit property owned by the plainti. That encroachment by the defendants and others has been a thorn in the fresh of the plainti for many decades. On 15th June 1961, the plainti while known as Mombasa Institute of Muslim Education wrote to one Omar Saleh Munif informing him that as the owners of Plot No. 106/R Section XI, they will charge a ground rent of Kshs 7/= for occupation of the portion of the suit property starting 1st June 1961. The defendants has attached receipts of between October 1961 and December 1962 showing that they were paying ground rent to Mombasa Institute of Muslim Education, the https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13257/eng@2024-11-20 5

page 5 of 10

precursor of the plainti. DW1 indeed admitted that they paid rent Mombasa Institute of Muslim Education, but they stopped making these payments once it was taken over by the Government of Kenya. The fact that the defendants were paying ground rent can only be an indication that they were occupying the land with permission or consent of the owner, and cannot turn around now in this suit, and claim their occupation was adverse to the title of the registered proprietor, as they appear to do through their counterclaim. e. The defendants have submitted through their learned counsel, that whereas the suit property was public land, they have a right to their housing on the land, having occupied and developed it. The counsel cited the case of LSK versus Kinyua, Head of Public Service and 5 Others (2022) eKLR where it was held that; “ …where the landless occupied public land and established homes, they acquire a protectable right to housing over the same. The right to housing over public land crystalized by virtue of long period of occupation by people who have established homes and raised families on land….” However, as pointed out above, the defendants did not enter onto the suit property as squatters but as ground paying individuals, whose licence or permission has since been withdrawn or revoked. f. The plainti is a public university under the Technical University of Mombasa Charter 2013. Land held and occupied by a public institution is public land within the meaning of Article 62 (1) of the Constitution of Kenya. There is no doubt therefore, that the suit property that is registered in the plainti’s name is public land. Public land cannot be subjected to a claim of adverse possession as provided for by section 41 (a)(i) of the Limitation of Actions Act, which provides as follows: “ This Act does not— (a) enable a person to acquire any title to, or any easement over— (i) Government land or land otherwise enjoyed by the Government.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13257/eng@2024-11-20 6

page 6 of 10

g. While upholding a notice of preliminary objection against an originating summons seeking title by way of adverse possession against title held by the County Government of Kisumu, in the case of Alex Opiyo Mwandu versus City Manager County Government of Kisumu & Another [2017] eKLR, the court held that; “ That Section 41 of the Limitation of Actions Act excludes “Government land or land otherwise enjoyed by the Government” from the provisions of the Act. That the land held by the 2nd Respondent falls in the denition of public land as it is held in trust for the public use in the County until and unless it is allocated to a private entity. The Applicant’s claim is not against a private entity or for private land. The claim is against the 2nd Respondent, which is a County Government, and over a public land in contravention of the provisions of Section 41 of the Limitation of Actions Act. That accordingly the suit is for stricking out as a non-starter.” And, in the case of James Maosa Okeno versus County Government of Kisii [2019] eKLR the court held that; “ The subject property is not community land as averred by the Plainti. It is public land within the denition of public land under the Constitution. The land is registerred under Gusii County Council and was reserved for the specic purpose of Bonyancha Market. The Applicant’s occupation of any portion of land cannot entitle him to claim title by adverse possession. His occupation, if at all, could only have been at the pleasure of the Respondent and the Respondent was entitled to give him notice to vacate at any time. His possession however long could not operate to extinguish the title to the respondent.” h. The law as codied under section 41 of the said Act and conrmed through judicial pronouncements in previous cases, including the above listed, is clear and the defendants cannot seek to adversely own and be registered as proprietors of the suit property as it is public land. Their argument that they have acquired protectable rights to housing over it does not hold water. The plainti has demonstrated vide the notices https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13257/eng@2024-11-20 7

page 7 of 10

issued by its predecessor, Mombasa Polytechnic, on 1st November 2005 and 4th November 2004 that the defendants’ occupation and possession of the suit property was adverse to the rights and interest of the plainti as a registered owner. That adverse occupation by the defendants of the suit property, which is public property already alienated to the plainti, is incapable to extinguish the plainti’s rights and interest over the land, in view of section 41 of The Limitation of Actions Act. Put dierently, the doctrine of adverse possession is inapplicable where the land is public or trust land or land owned by the Government. The defendants having occupied the land with permission or consent of the owner as evinced through payment of receipted ground rent at some time, remained on the land under the same terms, until they were asked to vacate, but they declined prompting the commencement of this proceeding. They should vacate from the suit property to enable the plainti put the land to the intended use as detailed by PW1 in his evidence. i. The court nds the defendants are therefore trespassers on the suit property. Trespass as dened in section 3 (1) of the Trespass Act, Chapter 294 of Laws of Kenya which provides that: “ Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an oence.” The defendants have denied the plainti the use, occupation, possession and enjoyment of the suit property. j. In the amended plaint the plainti has sought for the eviction of the defendants and a permanent injunction restraining them from remaining on the land. It is trite law that trespass to land is actionable per se. The plainti need not prove that it suered any specic loss or damage. In the case of Duncan Nderitu Ndegwa versus Kenya Pipeline Company Limited & Another [2013] eKLR, the court held that: “ On the issue and quantum of general damages, once a trespass to land is established it is actionable per se, and indeed no proof of damage is necessary to for the court to award https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13257/eng@2024-11-20 8

page 8 of 10

general damages. This court accordingly awards an amount of Kshs 100,000/= as compensation of the infringement of the Plainti’s right to use and enjoy the suit property occasioned by the 1st and 2nd Defendant’s trespass.” The measure of damages is usually the value of the suit land before the trespass and immediately after the acts of trespass. The plainti ought to present before the court a valuation report that would paint a picture to the court as to the situation on the suit property, and the costs of restoring the suit land to its former value, so as to guide the court in settling on a fair amount of monetary value of the damage caused. The court has noted the plainti herein has not sought for damages. 10. k. The actions of the defendants of trespassing on the suit property ought to be permanently stopped. The plainti is therefore entitled to an order of eviction, as well as a permanent injunction restraining the defendants from remaining on the suit property. l. Under section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the event unless where for good cause otherwise ordered by the court. In this instance, I nd no reasonable cause to go against that general direction. The plainti will have the costs of the suit. Flowing from the determinations set out above, the court nds and orders as follows: a. The defendants are directed to vacate from and remove all their structures on Mombasa/ Block XI/386 within the next 60 days from the date of this judgment failure to which the plainti is at liberty to evict the defendants and demolish all their structures thereon at the defendants’ expense, under the supervision of the OCS Makupa Police Station, Mombasa. b. A permanent injunction is hereby issued restraining the defendants, by themselves, representatives, agents, employees, servants or whatsoever acting on their behalf from selling, alienating, letting, subdividing, transferring, charging or in any other manner whatsoever interfering with the plainti’s ownership, use, possession and occupation of the property known as Mombasa/ Block XI/386, after they vacate or are evicted. c. The defendants are to pay the costs of the suit and the counterclaim to the plainti. Orders accordingly. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 20TH DAY OF NOVEMBER 2024. S. M. Kibunja, J. ELC MOMBASA. IN THE PRESENCE OF: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13257/eng@2024-11-20 9

page 9 of 10

Plainti : Mr. Opulu. Defendants : No Appearance Leakey – Court Assistant. S. M. KIBUNJA, J. ELC MOMBASA. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13257/eng@2024-11-20 10

page 10 of 10