[2016] KEELC 896 (KLR)
The Plaintiffs established by uncontroverted evidence that they are the registered proprietors of the suit property, having acquired title by assent after their father's death. The Defendants, despite being served, failed to contest the claim or provide any lawful justification for their occupation of the land. The...
Source-derived case information.
- Citation
- [2016] KEELC 896 (KLR)
- Parties
- Plaintiff: Mohamed Abdalla Mohamed; Plaintiff: Yathriba Khamis Rashid Shikely; Plaintiff: Nahya Abdallah Mohamed; Plaintiff: Nasreen Abdallah; Plaintiff: Noor Abdallah; Plaintiff: Majid Abdallah; Plaintiff: Mohsin Abdallah; Plaintiff: Fatma Abdallah; Plaintiff: Naima Abdallah; Plaintiff: Mohammed Abdallah; Defendant: Kalama Rimba Gona; Defendant: Kajoj Rimba Gona; Defendant: Charo Rimba Gona; Defendant: Kea Rimba Gona
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case Case139 of 2015
- Procedural Posture
- Land and Environment Case / Judgment
- Outcome
- Plaintiffs' suit allowed in full.
- Judges
- OA Angote
- Legal Topics
- Trespass to Land, Injunctions, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Abdalla Mohamed
Plaintiff
Yathriba Khamis Rashid Shikely
Plaintiff
Nahya Abdallah Mohamed
Plaintiff
Nasreen Abdallah
Plaintiff
Noor Abdallah
Plaintiff
Majid Abdallah
Plaintiff
Mohsin Abdallah
Plaintiff
Fatma Abdallah
Plaintiff
Naima Abdallah
Plaintiff
Mohammed Abdallah
Plaintiff
Kalama Rimba Gona
Defendant
Kajoj Rimba Gona
Defendant
Charo Rimba Gona
Defendant
Kea Rimba Gona
Defendant
Procedural Posture
Land and Environment Case / Judgment
Legal Issues
- 1 Whether the Plaintiffs are the registered proprietors of the suit property.
- 2 Whether the Defendants have trespassed on the Plaintiffs' land.
- 3 Whether the Plaintiffs are entitled to prohibitory and mandatory injunctions against the Defendants.
Ratio Decidendi
The Plaintiffs established by uncontroverted evidence that they are the registered proprietors of the suit property, having acquired title by assent after their father's death. The Defendants, despite being served, failed to contest the claim or provide any lawful justification for their occupation of the land. The court found that the Plaintiffs' title was valid and that the Defendants' continued presence and construction activities on the property constituted trespass. Consequently, the Plaintiffs were entitled to both prohibitory and mandatory injunctions to protect their proprietary rights and to restore possession of the land.
Court Disposition
Plaintiffs' suit allowed in full.
Orders
- A permanent injunction is issued restraining the Defendants, their agents or servants from erecting structures, carrying out construction, or entering upon or dealing with subdivision number 783 (Original number 284/57) Section III Mainland North.
- A mandatory injunction is issued compelling the Defendants to demolish and remove any structures erected by them on the suit premises and to vacate the suit premises.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC NO.139 OF 2015
1. MOHAMED ABDALLA MOHAMED
2. YATHRIBA KHAMIS RASHID SHIKELY
3. NAHYA ABDALLAH MOHAMED
4. NASREEN ABDALLAH
5. NOOR ABDALLAH
6. MAJID ABDALLAH
7. MOHSIN ABDALLAH
8. FATMA ABDALLAH
9. NAIMA ABDALLAH
10. MOHAMMED ABDALLAH.............................................PLAINTIFFS
=VERSUS=
1. KALAMA RIMBA GONA
2. KAJOJI RIMBA GONA
3. CHARO RIMBA GONA
4. KEA RIMBA GONA..................................................................DEFENDANTS
J U D G M E N T
The Plaintiffs have averred in their Plaint dated 10th August, 2015 that they are the registered proprietors of a piece of land known as subdivision number 783 (Original number 284/57) Section III Mainland North; that the Defendants have trespassed on the suit property and that the said acts of trespass by the Defendants is continuing.
In the Plaint, the Plaintiffs have prayed for an order of prohibitory and mandatory injunction.
Although the Defendants were served with the Summons to Enter Appearance and the hearing notice, they neither entered appearance nor filed a Defence. The matter proceed for formal proof on 16th May, 2016.
The Plaintiff, PW1, informed the court that he had been authorised by the 2nd to 10th Plaintiffs to testify on their behalf.
PW1 informed the court that they were registered as the proprietors of the suit by way of an “assent” on 6th November 2013.
The evidence before me shows that initially, the suit property was registered in the name of the Plaintiffs' father, Abdalla Mohamed Abdulla, before the same was transferred to the Plaintiffs upon the death of their father.
In view of the fact that the suit property is registered in favour of the Plaintiffs, I find and hold that the Plaintiffs have proved that the Defendants have trespassed on their land.
In the circumstances, I allow the Plaintiffs' Plaint dated 10th August, 2015 in the following terms:
(a) A permanent injunction be and is hereby issued restraining the Defendants either by themselves, their agents or servants or otherwise howsoever from erecting any structures or carrying out any construction of any nature or otherwise howsoever entering upon or dealing with the suit premises known as subdivision number 783 (Original number 284/57) Section III Mainland North.
(b) A mandatory injunction be and is hereby issued compelling the Defendants to demolish and remove any structures of any nature erected by them on the suit premises and to vacate the suit premises.
(c) The Defendants to pay the Plaintiffs the costs of the suit.
Dated, signed and delivered in Malindi this 20thday of May, 2016.
O. A. Angote
Judge