https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4822

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELCLC/E001/2025 JABESS ODUOR T/A BEACHLAND DEVELOPERS AND 10 OTHERS VS STELLA WANDOE (PURPORTING TO HAVE AUTHORITY OF MADIN CLEARING AND FORWARDING ) AND 3 OTHERS JUDGMENT The plaintiffs come to this court praying for a declaration that the orders made before Honorable D.Nyambu C.M on the 11th of December 2024 within Miscellaneous application NO E010 of 2024 touching on LR NO MN /NO 1/ /12056 were made without Jurisdiction. Moreover, a permanent injunction to be issued against the Defendants restraining them from interfering with the Plaintiffs possession, use and occupation of the stalls on the premises on LR NO. MN/l/12056 which are owned and managed by the 1st and 2nd Plaintiffs under the name Beachlands Developers. For determination also is the 1st and 2nd Defendants Amended Defence and Counterclaim Amended on the 20th February 2025 seeking the following orders; 1. A declaration that the 2nd Defendant is the legal owner of premises known as of PLOT L.R. NO. MN/1/12056. 1. An order of eviction against the Plaintiffs on of PLOT L.R. NO. MN/1/12056. 2. An order directing the OCS NYALI to assist in the eviction of the Plaintiffs from of PLOT L.R. NO. MN/1/12056. 1. Damages for trespass. 2. A refund of all rent collected by the 1st and 2nd Plaintiffs. 3. Mesne Profits. 4. Costs of the suit. 5. Interest on (d),(e) and (f) above at prevailing Court rates from the date of filing suit 6. Any other relief that this Honourable Court may deem fit to grant The evidence of Jabess Oduor, PW1 is that the Directors of Madin Clearing and Forwarding Limited is Sammy Mwaita and his wife. He produced a CR12 showing the same. He went further to produce a judgement of the High Court in which Sammy Mwaita as one of the Directors of Madin Clearing and Forwarding Limited testified against Bamburi Supermarket. Justice A. Omollo ruled in favour of Madin Clearing and Forwarding Limited. That judgement has never been set aside or challenged by anyone. PW1 produced CR12 which indicates that the Directors/Shareholders were Sammy Mwaita and Dinah Chelal. The plaintiff alleges that this particular piece of evidence on Directorship/Shareholding was never challenged by the Defendants. PW1 further stated that he is the 1st Plaintiff trading as BEACHLAND DEVELOPERS and duly given powers by Madin Clearing and Forwarding Limited through its Directors Sammy Mwaita and Dinah Chelal to deal with Plot No. LR NO. MN/I/12056. That there are about fifteen (15) stalls as stated in his letter dated 18th March, 2020 to Madin Clearing and Forwarding Limited. He is convinced that Mr. Sammy Mwaita is one of the directors of the said company. The witness states further that in the year 2013, in the matter of Madin Clearing and Forwarding Limited -vs-Bamburi Supermarket Limited, HCCC NO. 227 OF 2013, the court found that Sammy Mwaita was a director of Madin Clearing and Forwading Limited and that the said judgment has never been reviewed, appealed and/or overturned. On the basis of that judgment, he is convinced that Sammy Mwaita and his co-director Dinah Chelal has the power over the subject matter which is plot number LR NO. MN/I/12056. That it was to his surprise that the 1st Defendant came up and purported to be a director of the said company yet she was not a party to that suit neither has she challenged the findings hitherto. The interference by the 1st Defendant on the tenancy of the Plaintiffs is not legitimate or backed by any law. The counterclaim by the 1st Defendant ought to be dismissed with costs because it lacks any legs to stand on. In conclusion, the 1st Defendant through deceit went to the lower court in a MISC APPL NO. E010 OF 2023 using the judgment in ELC NO. 227 OF 2010, and which she was not a party to and attempted to evict the tenants which were not under Bamburi Supermarket Limited but thankfully this court stopped her by finding the matter to be irregular, unlawful and void ab initio. This is a clear indication that the 1st Defendant is upto no good. She is mischievious and can go to any length to get hold of the subject matter. The import of the defence evidence by Stella Wandoe is that the 1st Defendant is a director of the 2nd Defendant together with Japheth Eyama. The 2nd Defendant is the registered owner of PLOT L.R. NO. MN/1/12056, the suit premises herein. The 1st and 2nd Plaintiffs have with a lot of impunity decided to benefit by collecting rent on premises belonging to the 2nd Defendant. The 2nd Defendant has only two directors, Stella Wandoe and Japheth Eyama, neither of whom have instructed the 1st and 2nd Plaintiffs to collect rent on their behalf. The 1st and 2nd Plaintiff's claim that they have instructions from the director of the 2nd Defendant is purely false as they have even sued the 2nd Defendant. The defendants contend that it does not even make sense to purport to receive instructions to collect rent on the 7th January 2025, when the agreements show that they have been collecting rent from the year 2019. That the 1st and 2nd Defendants claim to be acting on instructions of one Sammy Silas Mwaita who is not a director of the 2nd Defendant and has no instructions from the 2nd Defendant whatsoever. The named Sammy Silas Mwaita has no authority or claim with regards to premises plot no MN/1/12056, and as such, he is not one of the Plaintiffs herein. If Sammy Silas Mwaita himself had any claim whatsoever with regards to premises plot no MN/1/12056 he would be the first one to come to court and not his purported agents who are the 1st and 2nd Plaintiff. According to the defendants, the averments of 1st and 2nd Plaintiff are marred with a lot of falsehoods. The same letter is attached in the supplementary affidavit of the 1st and 2nd Plaintiffs dated 29th January 2025 but here, it is backdated to read 18th March 2020. The 2nd Defendant has never authorized Sammy S. K. Mwita to sign any consent on its behalf and has never signed any agreement whatsoever with the 1st and 2nd Defendant or Beachland Developers Agency. The 2nd Defendant never had an ordinary resolution on the 10th January 2020 with regards to Beachland Developers Agency and the document attached to that effect has been manufactured by the 1st and 2nd Plaintiff and is strange to the 2nd Defendant and that purported Ordinary Resolution itself does not make any economic sense. The 1st and 2nd Plaintiffs are very much aware that they have no instructions from the 2nd Defendant and that is why they have sued the 2nd Defendant, all because it is not logical to sue one who has given you instructions over her piece of property. The plaintiff submits that it is worth noting that in the cause of proceedings, the Plaintiffs dropped claim against the 3rd and 4th Defendants. Stella Wandoe was sued as “purporting to have authority” of Madin Clearing and Forwarding Limited but not as a genuine Director/Shareholder. That It was also in evidence that the person who processed the title deed in respect to LR NO. MN/l/12056 is non other than Sammy Mwaita. The Defendants did not process any title. Madin Clearing and Forwarding Limited was incorporated in 1998. The 1st Defendant told the court that she is 55 years old. It is quite obvious that in 1998 she was a young lady who could not open a company and operationalize it. Sammy Mwaita proved his case that he is the Bonafide Director together with his wife Dinah Chelal. He had all the right to engage the Plaintiffs in whichever way as far as the company is concerned. The 1st Defendant did not come up with any proof that she is the Director except with forged CR12 and with fraudulent motives, when she went to lower court in Miscellaneous Application No. E010 of 2024 seeking to enforce a judgement in the matter which was decided by Justice Omollo and in which she was not a party to. As a matter of fact it was Sammy Mwaita as the representative of the company and not 1st Defendant who had the locus standi to sue. The orders in that application was set aside by Justice Kibunja. The plaintiffs submit that In 1st Defendant's testimony, her major complaint was that the title was signed by Sammy Mwaita. She did not file a counterclaim on the issues she was complaining about and as such the court must not assist her on the legality of the registration of the land or the issuance of title. She wants to unlawfully and unjustly enrich herself from the sweat of the company she has no idea about. The plaintiffs submit that they have proved their case on a balance of probability and the suit ought to succeed The defendants submit that the suit before me is not for determination of the ownership of the 2nd Defendant, Madin Clearing And Forwarding Limited. At the hearing, parties confirmed that one Sammy Silas Mwaita filed Mombasa HCCC No. E 058 of 2025 seeking to be declared as director of the 2nd Defendant, Madin Clearing and Forwarding which suit was later withdrawn and such is therefore not an issue for determination before this court or any other court. The defendants submit that Under Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act, the Environment and Land Court has exclusive, overarching jurisdiction to hear and determine disputes relating to the environment, the use, and the title to land. Analysis and determnatinon I have considered the pleadings, evidence and submissions on record and do start by pronouncing that parties are bound by their pleadings in their case. it is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.” In the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, Malawi Supreme Court of Appeal stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled “The Present Importance of Pleadings” published in [1960] Current Legal Problems. At p. 174 the learned author posited that: -As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.” In respect to the essence of pleadings, the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in an election petition: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other. party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings… ’” In this case the plaintiffs are tenants of Sammy Mwaita and not Madin Clearing and Forwarding Company. In-fact Madini Clearing and Forwarding Company is the second defendant and it is perplexing that the plaintiffs claim that that Silas Mwaita, the landlord is a director of Madin Clearing and forwarding Company and yet they have sued Madin and not Silas Mwita. The way the pleadings by the plaintiffs are framed, it is the 2nd defendant against whom the orders are sought and not Sammy Mwaita. I agree with the defendants that the plaintiffs claim discloses serious irregularities such as the 1st and 2nd Plaintiffs claim to have instructions of one Sammy Silas Mwaita who they claim is a director of the 2nd Defendant, Madin Clearing And Forwarding, yet in this suit they sue Madin Clearing And Forwarding who they claim instructed them. The 1st and 2nd Plaintiffs claim to have instructions to collect rent from the suit premises from one Sammy Silas Mwaita and they don't bother to bring the said Sammy Silas Mwaita as a witness before this court whose evidence would have been crucial to the extent of his instructions from the 2nd Defendant. The said Sammy Silas Mwaita who purports to have instructed the 1st and 2nd Plaintiffs to collect rent from the suit premises as the director of the 2nd Defendant was the Commissioner of Lands who actually signed the title deed for the 2nd Defendant. The question is, was it legal for the commissioner of lands to allocate a company where he was a director, government land or was he allocating to another person. However, that issue is not pleaded and therefore not for this court to decide. This court further finds that the property is registered in the names of Madini clearing and forwarding company and not Sammy Mwaita. The plaintiffs’ tenancy agreements are entered into between persons who have no interest in the property at all. 26. Certificate of title to be held as conclusive evidence of proprietorship 1. The certificate 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 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 certificate, and the title of that proprietor shall not be subject to challenge, except— 1. on the ground of fraud or misrepresentation to which the person is proved to be a party; or 2. where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” The 1st and 2nd Defendants produced as Defence exhibit number 2, the copy of title stipulating that the 2nd Defendant is the registered owner of the suit premises PLOT L.R. NO. MN/1/12056. On mesne profits, the defendants have proved that the plainiffs have been receiving rent on the premises as follows :- The 1st and 2nd Plaintiffs have so far pocketed at least Kshs 253,000 X 101 months which is (Kshs 25,553,000/=) Twenty Five Million, Five Hundred and Fifty Three Thousand Shillings. The upshot of the above is that the plaintiffs have not proved their case on a balance of probabilities and the same is declined. The 2nd defendant has proved that he is the registered owner of the suit property and therefore is entitled to the orders sought. The 2nd defendant has proved that the plaintiffs are occupying the land illegally and therefore I do grant the following orders :- 1. A declaration that the 2nd Defendant is the legal owner of premises known as of PLOT L.R. NO. MN/1/12056. 1. The plaintiffs to vacate the land within 90 days failure of which an order of eviction against the Plaintiffs on of PLOT L.R. NO. MN/1/12056 is hereby issued. 2. An order directing the OCS NYALI to assist in the eviction of the Plaintiffs from of PLOT L.R. NO. MN/1/12056 if they fail to vacate. 1. Damages for trespass of Ksh 2,000,000 5. 2. A refund of all rent collected by the 1st and 2nd Plaintiffs. 3. Mesne Profits of Kshs 253,000 X 101 months which is (Kshs 25,553,000/=) Twenty Five Million, Five Hundred and Fifty Three Thousand Shillings rent collected from the land 4. Costs of the suit. 5. Interest on (d),(e) and (f) above at prevailing Court rates from the date of filing suit. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-07-27 22:42:22