[2023] KEELC 21481 (KLR)
The court found that both the plaintiff and the 1st Defendant (through his wife) were lawfully allocated or licensed to operate businesses on their respective plots by the 2nd Defendant, the County Government of Tana River. There was no evidence that the 1st Defendant's structure was illegal or that it encroached...
Source-derived case information.
- Citation
- [2023] KEELC 21481 (KLR)
- Parties
- Plaintiff: Omar Dhadho; Defendant: Mohamed Masoud; Defendant: County Government of Tana River
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1 of 2021
- Procedural Posture
- Environment and Land Case / Judgment
- Outcome
- plaintiff's suit dismissed with costs to the defendants
- Judges
- EK Makori
- Legal Topics
- Allocation of Land Rights, Business Premises Disputes, Licensing of Structures
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omar Dhadho
Plaintiff
Mohamed Masoud
Defendant
County Government of Tana River
Defendant
Procedural Posture
Environment and Land Case / Judgment
Legal Issues
- 1 Whether the structure erected by the 1st Defendant is illegal and should be removed.
- 2 Whether the plaintiff is entitled to vacant possession of the disputed portion.
- 3 Whether either party holds superior rights over the disputed land.
Ratio Decidendi
The court found that both the plaintiff and the 1st Defendant (through his wife) were lawfully allocated or licensed to operate businesses on their respective plots by the 2nd Defendant, the County Government of Tana River. There was no evidence that the 1st Defendant's structure was illegal or that it encroached upon the plaintiff's land. The court determined that neither party could claim superior rights over the other, as both were acting within the terms of their respective allocations or licences. Consequently, the plaintiff's claims for declarations, removal of the structure, and vacant possession could not be sustained and were dismissed with costs to the defendants.
Court Disposition
plaintiff's suit dismissed with costs to the defendants
Orders
- The plaintiff's suit is dismissed.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
24 paragraphs
Dhadho v Masoud & another (Environment & Land Case 1 of 2021) [2023] KEELC 21481 (KLR) (8 November 2023) (Judgment)
Neutral citation: [2023] KEELC 21481 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment & Land Case 1 of 2021
EK Makori, J
November 8, 2023
Between
Omar Dhadho
Plaintiff
and
Mohamed Masoud
1st Defendant
County Government of Tana River
2nd Defendant
Judgment
1. By plaint dated 26th March 2019, the plaintiff has sued the defendant seeking the following reliefs:a.A declaration that the structure put up by the 1st Defendant is an illegal structure.b.An order directing the Defendant to remove the structure within 14 days.c.Vacant possessiond.Costse.Any other relief
2. Through the defence dated 25th April 2019, the defendant has refuted that claim in its entirety.
3. The plaintiff-acquired land known as TRCC/LZ/C/25 situated at Hola Township within an area known as Laza Tana River County. He carries on commercial business. He pays rates and takes licenses as required by the Tana River County.
4. The plaintiff in his evidence alleged that the 1st defendant had constructed a structure (read his wife) - blocking the plaintiff's frontal view, and impeding customers from accessing his shop, making it impossible for him to freely carry on his business.
5. The defendant testified and called his wife DW2. they said that a licence was granted to DW2 to construct a temporary structure on the disputed portion for purposes of operating a restaurant. The structure is said to be 51 feet from the plaintiff’s plot and does not block the plaintiff’s business at all.
6. The issue to determine is whether the declarations and orders sought by the plaintiff are tenable.
7. I have considered the materials and submissions from the warring parties. This was a straightforward matter revolving around who has more rights over the protagonists' respective portions. There is no dispute that each owns and uses the respective portions as allocated by the defendant. Each of the parties was lawfully allocated/licensed to operate business on the respective plots by the 2nd Defendant’s terms. None of the parties can claim superior rights over the other. Consequently, the plaintiff's claim (s) will not be sustained but dismissed with costs to the defendants.
DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY IN OPEN COURT ON THIS 8TH DAY OF NOVEMBER 2023. E. K. MAKORIJUDGEIn the presence of:Mr. Magolo for the PlaintiffMr. Shujaa for the DefendantsCourt Clerk: Happy