Miliki Limited v Ali & 3 others

2. The matter proceeded for hearing, and on 15th July 2024, this Court directed that the parties le their submissions. The Defendants were served but did not appear to defend. 3. The Plainti testied that he is the legally registered proprietor of the leasehold interest in all those parcels of land known as Lamu/Blocks 2/347, 2/348, and 2/350 situated at Langoni Area on Lamu Island. He leased the suit properties in 2017 to construct a world-class tourist hotel. The Plainti has since peacefully used and occupied the suit properties, together with all rights and privileges appurtenant thereto. Additionally, the Plainti has been defraying all the land rates concerning the suit properties. Sometime in 2019, the Defendants, illegally and without any color of right, gained access to the suit properties and put up illegal temporary structures thereon, tilled the land, and dug boreholes and water wells, thereby completely defacing the suit properties. The Plainti’s legal ocer visited the suit property and, to their dismay, found the Defendants in the process of erecting a permanent perimeter wall and permanent structures on the suit properties. 4. The Plainti avers that the Defendants have never owned the suit properties and are mere strangers who lack title to legal, equitable, and much less possessory rights over them. The Defendants are using their inuence as natives and their political connections with area ocials to invade the suit properties with the aim of extinguishing the Plainti’s proprietary rights. 5. The Plaintis assert that the Defendant’s activities amounted to trespass and were carried out without any authorization or permission from the Plainti. Further, Plainti has never transferred any of its leasehold interests over the suit property to any person, especially not the Defendants herein. 6. Owing to the illegal structures erected on the suit property and the indiscriminate drilling of water wells and boreholes, the Plainti’s suit properties have been defaced and devalued to the detriment of the Plainti, who has incurred loss and damages. 7. The issues this Court frames for determination are whether: a. The Plainti is the bona de owner of the suit land; b. The Defendants have trespassed onto the suit properties; c. The Plainti is entitled to reliefs sought; and d. Who should bear the costs of this suit? 8. The Plainti produced a certicate of title and necessary documents to demonstrate the purchase of the suit properties. The plainti further produced the ocial searches that prove that the plainti is indeed the registered owner of the suit properties. 9. A certicate of Title is conclusive proof of ownership of land. The rights of a registered owner of the property are set out under Sections 24, 25, and 26 of the Land Registration Act, 2012, which states that: “ 24. Subject to this Act: (a) The registration of a person as proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto (i) The certicate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie 26. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13604/eng@2024-12-04 2

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evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certicate, and the title of that proprietor shall not be subject to challenge.” 10. I agree with the submissions by the Plainti, being the registered owner who bears the title to the suit land, has conclusive ownership of the land unless the same is challenged on the grounds of fraud and illegalities or corrupt scheme. See - Ali Wanje Ziro v Abdulbasit Abeid Said & another [2022] eKLR where the Court observed that: “ The law is clear that, the Certicate of Title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner and the title of that proprietor shall not be subject to challenge except – On the ground of fraud or misrepresentation to which the person is proved to be a party; or Where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. This court in considering this matter referred to the case of Elijah Makeri Nyangw’ra –vs- Stephen Mungai Njuguna & Another (2013) eKLR where the court held that “-------------the law is extremely protective of title and provides only two instances for challenge of title. The rst is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certicate of title has been acquired through a corrupt scheme.” 11. I also agree with the Plainti that the established principle of law is that a fraud claim must be specically pleaded and strictly proved. The Defendants have claimed that the suit properties were acquired fraudulently; however, they have completely failed to tender any shred of evidence to prove that the suit property is public land or that it was illegally acquired by the Plainti. 12. The Court of Appeal in Mombasa Civil Appeal No. 312 of 2012 Eml Limited v Registrar of Titles Mombasa & 2 others [2014] eKLR held: “ Allegations of fraud are allegations of a serious in nature normally required to be strictly pleaded and proved on a higher standard than the ordinary standard of balance of probabilities”. 13. Regarding trespass, the Defendants allege that the suit properties are public land on which they have lived for many years. As submitted by the Plainti, Article 62 (d) and (m) of the Constitution of Kenya, 2010 denes what public land is: “ (1) Public land is… (d) Land in respect of which no individual or community ownership can be established by any legal process; … (m) any land not classied as private or community land under this Constitution…” https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13604/eng@2024-12-04 3

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14. As opined by the Plainti, In Black’s Law Dictionary 8th Edition, a continuing trespass is dened as: “ A trespass like a permanent invasion on another’s rights, such as a sign that overhangs another’s property”. 15. In Charles Ogejo Ochieng v Georey Okumu, [1995] eKLR, the Court held that trespass is an injury to a possessory right. Therefore, the proper Plainti in an action for trespass to land is the person who has title to it or is deemed to have been in possession at the time of trespass. The Plainti has further provided photographic evidence showing the defendants' illegal occupation and use of the suit property. Thus, the claim for trespass stands proved. 16. Whether the Plainti is entitled to the reliefs sought, from the evidence adduced, the Defendants invaded the suit property, have been on the ground, been invited to move out, but have refused or neglected to do so with impunity. Therefore, the plainti will be entitled to General Damages as enunciated by Obaga J. in Philiph Ayaya Aluchio v Crispus Ngayo [2014]eKLR: “ …… measures of damages for trespass is the dierence in value of the plainti’s property immediately after trespass or costs of restoration whichever is rst” 17. The claim herein will succeed against the Defendants jointly and severally as follows: a. A permanent injunction is hereby issued against the Defendants from further occupying, constructing, building, drilling boreholes or water wells, subdividing, putting up a fence, selling, advertising for sale, letting, sub-letting, or in any manner interfering with the suit properties in protection of the plainti’s right of owning property under Article 40 of the Constitution. b. An order be and is hereby issued directing the eviction, and or vacant possession directed at the Defendants herein, to move out of parcel of land known as LAMU BLOCK 2/347, 2/348, and 2/350 situated at Langoni area on the Lamu island (judgment of this Court be served on the Defendants to vacate within 90 days hereof, failure forceful eviction to take eect. c. Kshs. 500,000/- is hereby awarded to the Plaintis for trespass. d. If the Defendants don’t comply with (b) above, the ocer commanding Lamu Police Station will enforce this Court's orders. e. The costs of this suit and interest to be borne by the Defendants. DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY ON THIS 4TH DECEMBER DAY OF DECEMBER 2024. E. K. MAKORI JUDGE In the Presence of: Mr. Timbe for the Plainti Happy: Court Assistant In the Absence of: The Defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13604/eng@2024-12-04 4

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