Omar Abdalla Mohamed & 10 Others v Ali Galole Dima & 4 Others

relevant, the legal registered proprietors of Land Title No. Lamu Island/Block IV/28 (Hereinafter referred to as the suit property), measuring approximately 3.6 HA, which is located within Lamu Island in Lamu County. 2. They maintain that they have retained ownership and possession of the suit property over the years without the interruption of third parties, up until recently, when the Defendants trespassed into portions of the suit property claiming ownership thereof. 3. They fault the Defendants for unlawfully remaining in the suit property and setting up illegal structures without any right to the suit property. They maintain that the Defendants have interfered with the Plaintiffs’ possession and quiet usage of the suit property by the said trespass and also caused nuisance. It is the Plaintiffs’ case that they have confronted the Defendants over the said trespass, but they have been denied entry and threatened, thus they continue to be deprived of the suit property. 4. They aver that they have suffered loss of the quiet enjoyment and usage of the suit property, and the same has led to economic detriment. It is their averment that they have made demands and served the defendants with the intention to sue, none of which have been complied. The Plaintiffs filed a list of witnesses dated 30th January 2024- Abdurehman Abdullahi Omar. They filed a further list dated 7th November 2024 containing Mohamed Athman Famau and Bashir Korio Abdi as the additional witnesses. The Plaintiffs also filed a List of Documents dated 24th June 2024 in support of their case. 5. They therefore prayed for a judgement in the following terms: a) A declaration that the Plaintiffs are the lawful owners of the parcel of land known as Title No. Lamu Island/Block IV/28 situate at Lamu Island in Lamu County, measuring 3.6 Hectares; b) An order directing the Defendants to vacate the land comprised in Title No. Lamu Island/Block IV/28 and deliver vacant possession to the Plaintiffs; c) A permanent injunction be issued jointly and severally against the Defendants restraining them, whether by themselves, their servants, agents, relatives or otherwise, howsoever, from remaining on or continuing to occupy any part of or in any other manner dealing with the property known as Title No. Lamu Island/Block IV/28. d) General damages for Trespass; MLDELCE015 OF 2014/JDGT/DF-05.02.24/FH-03.04.25/LH-16.06.26/DJ-05.10.26 . Page 2 of 9

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e) Costs of the suit. 6. The Defendants joined the suit by way of a Notice of Appointment of Advocates dated 21st February 2024 through the firm of Aboubakar Mwanakitina & Company Advocates. They also filed a Statement of Defence on the same date, in which they denied the Plaintiffs' suit. They maintain that the Plaintiffs have never owned or occupied the suit properties as alleged and that Lamu Residents have always presumed the same as public land, and put the Plaintiff to strict proof. 7. They postulate that they are not in occupation of the suit property. The Defendants contend that squatters have been occupying the suit property for over 15 years, and the Plaintiffs have never sought to evict them and have now wrongly sued the Defendants. They prayed for the dismissal of the suit with costs. 8. The matter came up for hearing on 7th May 2026, with the PW-1 Abdulrahman Abdullahi Omar testifying. He stated that the Plaintiffs are the registered owners of the suit property and that the Defendants have interfered with their occupation for many years. PW-1 testified that he met the Defendants on the suit property, where they had cut down trees which his grandfather had planted and they constructed some temporary structures. He stated that they have occupied the entire land parcel, and he prayed for their eviction. He produced the documents contained in the list of documents dated 24 th June 2024 as Exhibits 1-7. The Defendant’s counsel objected to the production of item 6- alleged photographic evidence of the illegal structures- citing the lack of a certificate of electronic evidence. The Plaintiffs’ counsel indicated that there is a certificate of electronic records dated 24th June 2024. The hearing was adjourned until 11:55 am. Later at 12:03 pm, the Defendants’ counsel was not on the call, and this court directed that he be contacted. At 12:18, counsel had yet to appear, and the court directed that the hearing does proceed. 9. PW-1 continued with his testimony and produced the documents contained in the list of documents dated 7th November 2024 as exhibits 8,9, 10, and 11. He prayed for the eviction of the Defendants from the suit property to enable them to continue using the suit property. 10. PW-2 adopted his witness statement dated 24 th June 2024. He testified that the 2nd Defendant introduced him to the suit property as government land, and he apportioned him part of the land in 2017. He stated that in 2017, PW-1 came to the land and showed him the title deeds and maintained that the suit property was theirs. PW-2 testified that the 2nd Defendant dismissed the title documents as fake, and he MLDELCE015 OF 2014/JDGT/DF-05.02.24/FH-03.04.25/LH-16.06.26/DJ-05.10.26 . Page 3 of 9

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formed a committee to pursue the issue, upon which he was allowed to stay and construct on the land. He states that PW-1 caused him to be arrested. The witness also stated that annexed to the Plaintiffs’ list of documents are minutes of a committee founded by the 2 nd Defendant confirming his involvement in the suit property. In the absence of the Defendant’s counsel, there was no cross-examination. 11. The Plaintiffs also called PW-3 Mr Mohamed Athman, who adopted his witness statement dated 7th November 2024 as hisevidence-in chief. He stated that he knows all the defendants, and he confirmed that all their houses are on the suit property. There was no cross-examination. 12. The Plaintiff also called PW-4 Mr Bashir Korio Abdi who adopted his witness statement dated 7 th November 2024 and testified that he is the village elder where the suit property is situated. He confirmed that the Defendants reside on the suit property and that the Defendants hail from his jurisdiction. 13. The Plaintiffs closed their case and indicated that they would file their submissions within 14 days from the hearing date. The matter was fixed for mention on 16th June 2026 to confirm filing of submissions and to fix a judgement date. On the said date, the Plaintiffs’ counsel confirmed that they had filed submissions. The Defendants’ counsel was absent. The matter was then fixed for judgement on 5 th October 2026. 14. The following issues are in contention and lie for determination by this court; i. Who is the lawful proprietor of the Land Title No. Lamu Island/Block IV/28; ii. Whether the Defendants trespassed into the suit property; iii. What reliefs, if any, are the parties entitled to? 15. On the First issue, I note that under Section 26 of the Land Registration Act CAP 300 Laws of Kenya that a Certificate of Title is deemed to be prima facie proof of ownership unless the same is challenged on the ground of fraud or misrepresentation to which the person is proved to be a party; or where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 16. From the record, the Plaintiffs have filed a Title Deed for the suit property, which, under the proprietorship section, details that it was registered in their names and issued by the Mombasa District Lands Registry on 18th December 1995 under Registry Map Sheet No. MLDELCE015 OF 2014/JDGT/DF-05.02.24/FH-03.04.25/LH-16.06.26/DJ-05.10.26 . Page 4 of 9

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180/4/3. The said title also reflects registration of a Specific Power of Attorney, dated 8th January 2024, on 11th January 2024 to Abdurehman Abdullahi Omar, the representative in the instant suit. The Plaintiffs also produced a copy of an official search issued on 13th October 2025, to cement their proof of ownership. 17. It is alleged by the Plaintiffs that the Defendants trespassed into the suit property and erected structures thereon. Clerk & Lindsell on Torts (18th edn), at paragraph 18-01, defines trespass as follows: “Any unjustifiable intrusion by one person upon land in possession of another.” …. Trespass is actionable at the instance of the person in possession, and that proof of ownership is prima facie proof of possession” 18. Black’s Law Dictionary (9th ed., p. 1643) defines trespass to land, also known as trespass quare clausum fregit, as: “A person’s unlawful entry on another’s land that is visibly enclosed. This tort consists of doing any of the following without lawful justification: (1) entering upon land in the possession of another, (2) remaining on the land, or (3) placing or projecting any object upon it. At common law, it also refers to an action to recover damages resulting from another’s unlawful entry upon one’s land that is visibly enclosed.” 19. Section 3(1) of the Trespass Act defines trespass upon private land as follows: “Any person who, without reasonable excuse, enters, is or remains upon, erects any structure on, cultivates, tills, grazes stock on, or permits stock to be on private land without the consent of the occupier thereof shall be guilty of an offence.” 20. In the instant suit, it may be assumed, due to the manner in which they have pleaded, that it is the Defendants’ burden to prove their non-occupation of the suit property and also the existence of the fact that the land is public land occupied by squatters. The Defendants deny being in occupation of the suit land. They have stated expressly as follows at paragraph 5 of the defence: “5. Contrary to the allegations made in paragraph 5,6,7 and 8 of the plaint the defendants are not in occupation of the suit property and they put the plaintiff to strict proof thereof.” 21. In paragraph 6 they reiterate the same contents in paragraphs 4 and 5. They allege that the property has been MLDELCE015 OF 2014/JDGT/DF-05.02.24/FH-03.04.25/LH-16.06.26/DJ-05.10.26 . Page 5 of 9

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occupied by other persons, squatters, over the years and that the same is reputedly public land that is not owned by the Plaintiffs. However, the defendants have failed to participate in the present suit by way of calling evidence to support the statements in the defence. They also do not have a counterclaim asserting that they own the suit land; nor do they demonstrate that they have any authority, leave of court or intent to plead the public nature of the suit land on behalf of the general citizenry. 22. It has been held on a number of occasions by court that failure to rebut evidence tendered by one party leaves the court with no option but to draw an inference that the facts as presented are true. See Karuru Munyoro v. Joseph Ndumia Murage & Another Nyeri HCCC No. 95 of 1988, where Makhandia J. discussed the effect of failure to rebut evidence as follows: “The plaintiff proved on a balance of probability that she was entitled to the orders sought in the plaint and in the absence of the defendants and or their counsel to cross-examine her on the evidence, the plaintiff’s evidence remained unchallenged and uncontroverted. It was thus credible and it is the kind of evidence that a court of law should be able to act upon.” 23. In Trust Bank Limited V Paramount Universal Bank Limited & 2 Others [2009] KEHC 4030 (KLR) the court observed as follows: “…the 2nd and 3rd Defendants closed their cases without calling a witness. It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since, in so doing, the party fails to substantiate its pleadings. The 2nd Defendant and 3rd Defendant’s defence were unsubstantiated and remained mere statements. In the same vein failure to adduce any evidence meant that the evidence adduced by the Plaintiff against the 2 nd and 3rd Defendants was uncontroverted and therefore unchallenged. In Autar Singh Bahra and Another Vs Raju Govindji HCCC No. 548 of 1998(UR) Mbaluto J. held: “Although the Defendant has denied liability in an amended Defence and counter-claim, no witness was called to give evidence on his behalf. That means that not only does the Defence rendered by the 1st Plaintiff in support of the Plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and MLDELCE015 OF 2014/JDGT/DF-05.02.24/FH-03.04.25/LH-16.06.26/DJ-05.10.26 . Page 6 of 9

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Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.” 24. Though the plaintiff’s claim to title is unopposed, it was their legal burden to prove their case by way of evidence before the defendants were called upon to prove theirs. It is also trite law that even where no defence has been filed, he who alleges must prove. See the renowned case Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR where the Court of Appeal stated as follows: “It is a firmly settled procedure that even where a defendant has not denied the claim by filing of defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.” 25. In the present case therefore, two significant events have taken place: first, the defendants have by their defence shown disinterest in the land and thus it is as though there is no real defendant in the matter. A court of law should not make declarations where it does not need to. Thus, when a defendant fails or refuses to contest the title of the plaintiff, it is the case that matters remain the way they were before the suit was filed, such that there would be no need for a declaration that plaintiffs are the lawful owners of the suit property, for there is no one to make that declaration against. Secondly and more significantly, besides failing to deny the plaintiff’s title, the defendants have denied being in occupation, such that the plaintiff’s case appears to be against none of them. A defendant who has demonstrated that he has no quarrel with the plaintiff’s title and who also asserts that he is not in occupation of the suit land must be deemed a stranger to the plaintiff’s claim unless the plaintiff proves otherwise, hence a greater burden lies on the plaintiff even before the contents of the defence are ever addressed. In the stated circumstances, the case therefore immediately ceases to be one in which the court can even contemplate a declaration of ownership of title, for that is unchallenged, and MLDELCE015 OF 2014/JDGT/DF-05.02.24/FH-03.04.25/LH-16.06.26/DJ-05.10.26 . Page 7 of 9

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remains a case relating to mere wrongful occupation of the suit property which the plaintiffs must prove. The question is whether the plaintiffs have established that the defendants are in wrongful or illegal occupation of the suit property. 26. In law, the burden of proof lies upon the party who asserts the existence of a fact or set of facts. In the present case, the burden first lay on the plaintiffs to establish wrongful occupation on the part of the defendants. Section 107 of the Evidence Act Cap 80 Laws of Kenya provides as follows: “Burden of Proof 107(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 27. In the case of Evans Nyakwana -vs- Cleophas Bwana Ongaro [2015] eKLR, it was held that: “As a general proposition, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(1) of the Evidence Act, Chapter 80, Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the law of proof of that fact shall lie on any particular person…………….” [Own emphasis] 28. The Plaintiffs called a village elder who testified and purported to confirm the identities of the Defendants. They have also supplied this court with photographs showing the structures erected by the Defendants on the suit property. This is also supported by the Certificate of Electronic Evidence by Abubakar Ahmed Mohamed, dated 24th June 2024, confirming the authenticity of the said photographs. However, though in the absence of any witnesses or any evidence by Defendants, it may have been assumed that the statements in their defence remain mere averments and are incapable of shaking the Plaintiff’s case, it is not in all litigation that such conclusions ought to be made. There are instances where the nature of the pleading in the defence, such as where the defendant demonstrates absolutely no interest in the property the plaintiff claims, where the assumption MLDELCE015 OF 2014/JDGT/DF-05.02.24/FH-03.04.25/LH-16.06.26/DJ-05.10.26 . Page 8 of 9

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ought not apply. This court is persuaded that the present case falls within the exceptions. 29. Lamu County is an expansive tract of land. The property subject matter herein is a defined portion of that expansive tract, complete with its own boundaries, apparently demarcated and formalized into government records. To this court, if the copy of title is to be taken as genuine, the property must be mapped somewhere in official records and there must be persons in charge of the records who can testify as to the existence of its map and the title. 30. In the light of the legal authorities cited herein above and absence of challenge to the plaintiffs’ evidence notwithstanding, in this court’s view, the manner in which the plaintiffs could have proved that the defendants were in occupation of the suit property should have transcended production of mere photographs into introducing by way of expert evidence a map of the suit property to demonstrate the boundaries thereof and that the structures of the defendants, one by one, were inside those boundaries. That having not been done, this court is of the view that the plaintiffs have not demonstrated that the defendants have encroached on the suit land. 31. Consequently, the plaintiff’s claim must fail. This court thus finds that the present claim commenced by way of plaint dated 30 th January 2024 has not been proved by way of evidence and it is hereby dismissed with no orders as to costs. This file shall be marked as closed. Dated, Signed, And Delivered at Malindi on This 5th Day of October 2026 HON JUSTICE MWANGI NJOROGE JUDGE, ENVIRONMENT AND LAND COURT, MALINDI In the presence of Mr Abdulmunim instructed by Abdulmunim Omar & Company Advocates for the plaintiffs No appearance for Abubakar Mwanakitina & Company Advocates for the defendants MLDELCE015 OF 2014/JDGT/DF-05.02.24/FH-03.04.25/LH-16.06.26/DJ-05.10.26 . Page 9 of 9

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