https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3410

Kirao & 106 others v Kassamjee (Environment and Land Case 55 of 2020) [2026] KEELC 3410 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEELC 3410 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case 55 of 2020 EK Makori, J May 14, 2026 IN THE MАТТER OF: AN APPLICATION FOR DECLARATION THAT THE PLAINTIFFS/APPLICANTS HAVE OBTAINED OWNERSHIP OF FIFTY DECIMAL ZERO SEVEN (50.07) ACRES OR THEREABOUTS OF THE ABOVE SAID LAND BY WAY OF ADVERSE POSSESSION Between Dominic Juma Kirao & 106 others & 106 others & 106 others & 106 others Plaintiff and Shabbir Kassamjee Defendant Judgment 1.The plaintiffs approached this Honorable Court via Originating Summons (OS), claiming to be proprietors of 50.07 acres of land, being Plot No. 220-Malindi; LT:37. Foio 225, File; 3403, situated at Malindi in Kilifi County, by way of Adverse Possession. 2.The defendant entered an appearance and filed a replying affidavit, sworn on 31st August, 2020, together with a counterclaim dated 1st September, 2020, seeking orders that:a.An order for vacant possession of the portion of land illegally occupied by the plaintiffs, measuring approximately 4 acres or thereabouts, within all that parcel of land known as Plot No. 220 Malindi, owned by the Defendant, and an order of eviction of the plaintiffs, their servants, employees, agents, and any other person claiming through them, from the suit property, and further the demolition of all their illegal structures and buildings erected thereon.b.Costs of the suit and interest thereon at court rates.c.Any other relief that the Court may deem fit to order. 3.On November 24, 2022, the plaintiffs filed a Notice of withdrawal of the OS dated the same day. The defendant, on the other hand, opted to proceed with the defense case through the previously filed counterclaim. The plaintiffs then filed a Defense to the counterclaim dated June 8, 2023. 4.The matter proceeded to a hearing on September 24, 2025, where DW1, Shabbir Kassamjee, testified and closed his case. The plaintiffs failed to bring their witness, and the Court proceeded to close the plaintiffs' case. 5.The parties were thereafter directed by the Court to file submissions. The parties' counsel complied. 6.Defendant testified that he is the registered owner of 50.07 acres of land, identified as Plot No. 220-Malindi; LT;37, Folio; 225, File; 3403, located in Malindi. This was evidenced by a copy of an Indenture dated 17th June 1992 and a Certificate of Postal Search dated 10th July 2019, which were produced as defense Exhibits 1 and 2, respectively. 7.The defendant testified that he enjoyed peaceful and quiet possession of the property, where he engaged in farming, until sometime in 2013, when the first person invaded the property, and thereafter, more people came in. The defendant reported the issue to the Chief, the Police, and the National Land Commission (NLC). 8.The defendant contends that the plaintiffs have not established the areas they occupy or clearly shown how long each has been on the property, and that they have been in peaceful and quiet possession with the defendant's knowledge. For these reasons, the defendant has filed a counterclaim seeking the plaintiffs' eviction from his property. 9.Based on the materials presented to me and the parties' submissions, the issues I delineate for the Court's determination are whether the defendant (plaintiff) in the counterclaim holds absolute ownership of the suit property; whether the plaintiffs (defendants) in the counterclaim are entitled to adverse possession; whether the plaintiff is entitled to the relief sought; and who should bear the costs of the suit. 10.Whether the defendant (plaintiff) in the counterclaim holds absolute ownership of the suit property and whether the plaintiffs (defendants) in the counterclaim are entitled to adverse possession; it is the defendant's submission that he has proved he is the registered owner of 50.07 acres of land, being Plot No. 220-Malindi; LT;37, Folio; 225, File; 3403, situated at Malindi. This was evidenced by a copy of an Indenture dated 17th June 1992 and a Certificate of Postal search dated 10th July 2019, which were produced as defense Exhibits 1 and 2, respectively. 11.Defendant asserts that he is the legal and rightful registered proprietor of 50.07 acres of land, being Plot No. 220-Malindi; LT:37, Folio: 225, File: 3403, situated at Malindi, having followed due process to acquire the land and in possession of a Certificate of Title in his name, and that he is entitled to the protection of the law and the indefeasibility of title under Article 40 of the Constitution of Kenya and Section 26(1)(b) of the Land Registration Act. 12.Defendant further asserts that he has demonstrated to the court that the plaintiffs have invaded his suit property. The plaintiffs themselves admitted in their defense to the counterclaim that they invaded the suit property and have lived therein without any valid ownership documents or the defendant's consent. 13.The defendant contends that the plaintiffs have not demonstrated their entitlement to the suit property through adverse possession, given their failure to provide evidence indicating they have resided on the property for a cumulative period of at least twelve years. Refer to Mtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR. 14.The defendant asserts that he purchased the suit property in 1992 and that the property was vacant at the time of purchase. The defendant further shows that the people who brought complaints about crops on the farm before he purchased the property were compensated, and he provides proof as Exhibits 3 and 4. The plaintiffs have not brought any evidence to controvert the defendant's averments. The plaintiffs have also not provided any proof of the exact portion of the suit property on which they reside or the acreage of their respective portions. Furthermore, the plaintiffs have failed to prove that they have had open and quiet possession of the property with the defendant's knowledge. The defendant, on the other hand, has proved to the court that he has reported any invasion of the property to the Police, NLC, and the area Chief, as shown by Exhibits 5, 6, 7, 9, and 10 produced by the defendant. The claim of adverse possession is therefore unfounded and has no basis. 15.The plaintiffs, on the other hand, contend that in response to the defendant's counter-claim, they filed a defence to the counter-claim dated 8th June, 2023, in which they averred that, except for the 3rd plaintiff, they have been living on the suit land for over a century, having been in occupancy since 1900, when their forefathers took possession of the suit land from an Arab immigrant known as Mohammed Faki, who was the registered proprietor at that time. 16.Plaintiffs aver that the 3rd plaintiff and his family purchased a portion of the suit land at a public auction held on 19 December 1981 by Shariff Alwi Ahmed, Official Broker & Auctioneer, following proceedings in Malindi Civil Suit No. 125 of 1981, Kazungu Ngumbao v Kitsao Ngala, and have occupied that portion since then. The plaintiffs further aver that Ali Ngoba Rua has never lived on the suit land, as he lives on Plot No. 219, adjacent to it, contrary to the defendant's allegations. The defendant has admitted that the plaintiffs constructed a permanent house on the suit land, and it does not make sense why the plaintiffs would burn it down. The plaintiffs further aver that they demanded that the defendant attend the meeting convened by the area Chief Ganda location to deliberate on the suit property. However, the defendant failed to attend without good cause and instead sent a broker, Justine Kata Nzaro, who was unable to answer the plaintiffs' questions; consequently, the meeting was unproductive. 17.Plaintiff contends that the defendant claimed he acquired ownership of the suit property after purchasing it from one Hassan Abdi, as evidenced by the Indenture dated 17th July, 1992. A scrutiny of the said Indenture shows that it was made between Abdul Hassan of Post Office Box Number 5074, Malindi, and Shabir Kassamje of Post Office Box Number 537, Malindi, and not Hassan Abdi, as testified in Court and pleaded by the defendant in his counter-claim. 18.The plaintiffs further assert that the Indenture identifies the property as Portion Number 220, whereas the defendant has pleaded ownership of Plot No. 120. The Indenture also states that a consideration of Kshs. The Purchaser paid 800,000/= to the Vendor, who, in this case, is Abdul Hassan and not Hassan Abdi, whom the defendant alleges purchased the suit property, notably, Kshs. 800,000/= in 1992 was not a small amount of money, yet no evidence, such as a bank deposit slip or bank transfer, was produced to show that the consideration was paid to Abdul Hassan. 19.It is the plaintiffs' submissions that, since the Certificate of Postal Search indicates that one Shabir Kassamje is the owner of Plot No. 220 Malindi, LT:37, Folio:225, File 3403, the defendant has failed to show that he purchased the same from Hassan Abdi, as pleaded, and that the Indenture he relies on shows that it was made between the defendant and Abdul Hassan. The defendant, during the hearing, was unable to explain why, more than thirty (30) years after he allegedly purchased the suit property, he had not obtained a title document. 20.On ownership, the plaintiffs aver that they have been in continuous and notorious occupation of the part of the suit property since time immemorial. They never offered any evidence regarding the specific portion each of the 107 persons occupies and the specific time they settled on the land. 21.On the other hand, the defendant has shown through evidence that he is the registered owner of 50.07 acres of land, identified as Plot No. 220-Malindi; LT;37, Folio; 225, File; 3403, located in Malindi. This was evidenced by a copy of an Indenture dated 17th June 1992 and a Certificate of Postal Search dated 10th July 2019, which were produced as defense Exhibits 1 and 2, respectively. He provided evidence that the invasion of his land commenced in 2013, when the first person invaded the property, and thereafter, more people came in. The defendant did not acquiesce to this invasion. The defendant reported the issue to the Chief, the Police, and the National Land Commission (NLC). 22.It was up to the plaintiffs to show, through evidence, that they were entitled to the suit property under the doctrine of adverse possession, as held in Mtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR, that:“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title neglects to take action against such person in assertion of his title for a certain period. In Kenya, the period is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth nor under license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the owner." 23.Instead of prosecuting their adverse possession claim, the plaintiffs withdrew it, leaving the defendants' Counterclaim unchallenged. 24.The plaintiffs' submissions contest the title held by the defendant, including the defendant's alleged purchase of the land from a person other than the one shown in the indenture. Besides, the plaintiffs claim there is no sale agreement, and the manner in which the purchase money was paid has not been shown. 25.To me, the plaintiffs' submission on the root of title is neither here nor there, since they, in turn, do not possess one. Prima facie, the defendant has title to the suit property as against the whole world. The title needs protection under Article 40 of the Constitution and Section 26(1)(b) of the Land Registration Act. The root of the defendant's title is not in dispute here. 26.On whether the defendant is entitled to the relief sought in the counter-claim, it is the defendant's submission that the mere denial of the defendant’s case in reply to the counterclaim left the plaintiffs' case unsubstantiated and the defendant's case unchallenged. Refer to Savala & Another v Ndanyi (Environment and Land Case Civil Suit 248 of 2021) [2022] KEELC 2536 (KLR) (5 July 2022) (Ruling), which is cited with approval in the decision in Chalicha Farmers Co-operative Society Limited v George Odhiambo & 9 Others (1987) eKLR, Nyukuri & Another v Omochar & 5 Others (Environment & Land Case 160 of 2015) [2022] KEELC 2530 (KLR) (21 July 2022) (Ruling), and Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR). 27.The defendant is of the view that he has shouldered the burden of proof, as required by law, to be entitled to the orders sought in the counterclaim. See the decisions in Re Estate of Alfred Mutuku (deceased) [2020] eKLR, William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526, and Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another (2015) eKLR. 28.On the other hand, the plaintiffs assert that, even in the absence of the plaintiffs calling witnesses to testify on the counter-claim, this Honorable Court remains under a legal duty to consider the degree of probability in making its final disposition and to scrutinize the defendant's testimony, the pleadings filed herein, and the documents filed in support of his claim. See Mutangili v Registrar of Titles [2026] KEELC 1890 (KLR) and Moi v Muriithi & another [2014] KECA 642 (KLR). 29.The plaintiffs further contend that the defendants' pleadings, evidence, and submissions contradict one another regarding whom the defendant bought the suit property from, and therefore the defendant cannot be allowed to depart from his pleadings, as elucidated in the decisions in Detoun Oladeji (NIG) Ltd v Nigeria Breweries PLC, S.C. 91/2002, as cited with approval by the Court of Appeal, in Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR). 30.It is the plaintiffs' averment that the defendant has failed to demonstrate how he acquired Plot No. 120 Malindi, LT:37, Folio:225, File 3403, measuring approximately 50.07 acres or thereabouts, by producing a sale agreement or even a receipt for payment of Kshs. 800,000/= consideration to one Abdul Hassan, named in the Indenture as the vendor. It is not sufficient for the defendant, as he has done, to submit that he followed due process to have the suit property registered and that an Indenture was issued to him. See Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR). 31.On eviction, the plaintiffs contend that an order of eviction against them, as sought by the defendant, should not issue for the simple reason that the defendant has failed to prove, on a balance of probabilities, that he is the legal owner of Plot No. 120 Malindi, LT:37, Folio:225, File 3403, and/or that he acquired the same procedurally and lawfully, and hence no claim and/or rights can arise over the same. 32.I agree with the submissions by both the defendant and the plaintiffs regarding the standard of proof and the level of scrutiny required when a party does not call evidence but merely files a defense, as held in the case cited by the defendant, Nyukuri & Another v Omochar & 5 Others (Environment & Land Case 160 Of 2015) [2022] KEELC 2530 (KLR) (21 July 2022) (Ruling):“A defence that raises triable issues is, in my view, at the extreme opposite side of a defence that consists of mere denial. On mere denial defence, it has been held that it is not a sufficient defence. Thus, in the Raghbir Singh Chatte vs. National Bank of Kenya Limited Civil Appeal No. 50 of 1996, the Court of Appeal held:"If a general traverse...were held to be sufficient and effectual, that would render meaningless provisions such as Order VI Rule 9(3) of the Civil Procedure Rules and even the decisions of this Court such as Magunga General Stores vs. Pepco Distributors Limited [1988-92] 2 KAR 89. The position of the law...is that a mere denial or general traverse in defence is not sufficient and a defendant who does not specifically plead to all the issues raised in a plaint risks the probability of his defence being struck out or being held to Constitute an admission of the issues raised in the Plaint." 33.Based on the materials, evidence, and submissions from both sides, the plaintiffs have not demonstrated the duration of their occupancy of the suit property. They failed to prove that they have occupied the property continuously for over 12 years or to specify the exact parts they claim, both of which are necessary for adverse possession. Conversely, the defendant has established that he is the rightful registered owner of the property and that his acquisition process was lawful. Consequently, I conclude that the defendant is the legitimate owner, and the plaintiffs are trespassers who should vacate the property. 34.Consequently, the defendant’s counterclaim will succeed in this manner:a.An order is hereby issued for vacant possession of the portion of land illegally occupied by the plaintiffs, measuring approximately 4 acres or thereabouts, within all that parcel of land known as Plot No. 220 Malindi, owned by the Defendantb.An order of eviction does issue against the plaintiffs, their servants, employees, agents, and any other person claiming through them, from the suit property, and further the demolition of all their illegal structures and buildings erected thereon on the portion occupied by the plaintiffs forming part of the defendant's property.c.That, in accordance with the law on evictions, the plaintiffs are to be granted a grace period of 3 months from the date of this judgment to vacate voluntarily; failure to do so will result in forced eviction.d.The defendant will get the costs of the suit and interest thereon at Court rates. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 14TH DAY OF MAY, 2026E. K. MAKORIJUDGEIn the presence of:Mr. Kimani for the PlaintiffsMr. Kilonzo for the DefendantKendi: Court Assistant