Mohammed v Idow Trading Co Ltd & 2 others (Civil Appeal E936 of 2023) [2026] KECA 1106 (KLR) (12 June 2026) (Judgment)

Mohammed v Idow Trading Co Ltd & 2 others (Civil Appeal E936 of 2023) [2026] KECA 1106 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1106 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E936 of 2023 DK Musinga, M Ngugi & GV Odunga, JJA June 12, 2026 Between Osman Ali Mohammed Appellant and Idow Trading Co Limited 1st Respondent Mohammed Jimale 2nd Respondent City Council of nairobi 3rd Respondent (Being an appeal from the judgment and decree of the Environment and Land Court of Kenya at Nairobi (L. Mbugua, J.) delivered on 28th September 2023 in ELC Case No. 63 of 2008) Judgment 1.Before this Court is an appeal from the judgment and decree of the Environment and Land Court at Nairobi (L. Mbugua, J.) delivered on 28th September 2023 in ELC Case No. 63 of 2008. 2.The dispute before the trial court revolved around the ownership and occupation of a parcel of land known as L.R. No. 36/1/1034 situated in Eastleigh, Nairobi (suit property). Idow Trading Company Limited, (the 1st respondent), vide a Plaint dated 4th February 2008 which was subsequently amended on 29th May 2012, pleaded that it was at all material times the lawful and registered proprietor of the suit property. It averred that the suit property had been duly allocated to it on 29th September 1998 by the now defunct City Council of Nairobi, (the 3rd respondent), that it paid the requisite allotment fees, and that a lease was subsequently processed, registered, and a deed plan issued. It further asserted that it had consistently paid land rates in respect of the property and was therefore entitled to quiet possession and enjoyment thereof. 3.The crux of its case was that sometime around the year 2000, Mohammed Jimale, (the 2nd respondent), and Osman Ali Mohammed (the appellant), either by themselves or through their servants or agents, wrongfully entered upon the suit property without any lawful authority. It was pleaded that they took possession of the entire parcel, demarcated it amongst themselves, erected temporary structures, and established a motor vehicle garage thereon. The 1st respondent maintained that this entry and continued occupation amounted to trespass and unlawfully deprived it of the use and enjoyment of its land. 4.The 1st respondent further asserted that the appellant could not rely on a Temporary Occupation Licence issued to him on 29th September 1997 by the City Council of Nairobi. It contended that such a licence did not confer any proprietary interest in land and, in any event, had been terminated upon the lawful allocation of the suit property to the 1st respondent. It was further contended that the 3rd respondent, through its acts and/or omissions, enabled or failed to prevent the continued unlawful occupation of the suit property, thereby occasioning loss and damage to the 1st respondent. 5.Based on the foregoing, the 1st respondent sought judgment against the appellant, the 2nd respondent and the 3rd respondent, jointly and severally, for a permanent injunction to restrain the appellant and the 2nd respondent from trespassing upon or continuing to occupy the suit property; an order for demolition of all illegal structures erected thereon at the appellant’s and 2nd respondent’s cost; a declaration that the suit property belongs to the 1st respondent; an order of eviction against the appellant and 2nd respondent; general damages for trespass; costs of the suit; and interest at court rates. 6.In his statement of defence, the appellant denied the 1st respondent’s claim in its entirety and put the 1st respondent to strict proof. He denied knowledge of the 1st respondent’s alleged ownership of the suit property and specifically denied the allegations of trespass and unlawful occupation. In the alternative, he asserted that in or about 1997 he lawfully applied for and was granted a Temporary Occupation Licence by the 3rd respondent pursuant to which he took possession of the suit property upon payment of the requisite fees and premiums, and had remained in uninterrupted occupation ever since. 7.He further pleaded that he had consistently paid rent to the 3rd respondent and was never in arrears, and that at some point, the 3rd respondent had even approved the preparation of a lease in his favour. On that basis, he asserted that he was the lawful and legal owner of the suit property and not a trespasser. He also alleged that the allocation of the same property to the 1st respondent was tainted by collusion between the 1st respondent and officials of the 3rd respondent, contending in particular that the allocation was done without notice to him, that the 3rd respondent irregularly received rent from both parties, and that the 1st respondent’s director, Ibrahim Adan Issack, improperly influenced the allocation process as a councillor with the 3rd respondent by applying for the allocation of the suit property, knowing too well that the appellant was in occupation. He further claimed that the allocation to the 1st respondent was undertaken in breach of applicable by-laws and without disclosure of material interests, and maintained that his occupation and possession of the property were lawful and constitutionally protected. 8.On its part, the 3rd respondent, vide its further amended statement of defence, denied that the 1st respondent was the rightful allottee. It instead asserted that the appellant was the lawful allottee, having been allocated the property through a proper and duly approved council process. It maintained that the appellant complied with all requisite payments, remained in actual occupation of the property, and that any temporary licence issued was subsequently regularized. The 3rd respondent consequently denied the claims of trespass, impugned the validity of the 1st respondent’s claim, and urged that the suit be dismissed with costs. 9.At the hearing before the trial court (Eboso, J.), the 1st respondent presented its testimony through its director, Ibrahim Adan Issack. The gist of his testimony was that the 1st respondent was the lawful allottee and registered proprietor of the suit property, having been allocated the land by the 3rd respondent and issued with a registered title after complying with all requisite conditions. He adopted his witness statement and produced a bundle of documents in support of the 1st respondent’s case. 10.He maintained that the appellant and the 2nd respondent were unlawfully occupying the suit property on the basis of a Temporary Occupation Licence which had since been terminated, and that they had no valid title. He testified that despite an order requiring them to vacate, they remained in occupation and were using the property as a garage for commercial gain, thereby depriving the 1st respondent of its use. He accordingly urged the court to grant the reliefs sought in the plaint, including eviction and damages for trespass. 11.Following the testimony of the 1st respondent’s director, the 1st respondent closed its case. The record further shows that on 5th December 2018, counsel for the appellant applied to recall the said director for purposes of cross-examination. That cross-examination, however, did not take place due to a combination of factors, including repeated applications for adjournment by the parties, changes of advocates, the indisposition of the witness, and occasions when counsel were not ready to proceed. Subsequently, on 5th October 2022, L. Mbugua, J., who had taken over the matter from Eboso, J., allowed an adjournment sought by the defence but, noting the age of the case dating back to 2008, marked it as the last adjournment. 12.Thereafter, a series of developments took place which bore significantly on the eventual judgment delivered by the trial court, and which are the subject of this appeal. These events may be traced to an email authored by counsel for the 3rd respondent on 6th June 2023 and circulated to counsel for the other parties on the same day at 4:17 p.m. The salient portions of the said email are set out below:“Good eveningKindly note that the Advocate handling this suit will not be able to proceed since he will be held up in the Court of Appeal in COACAPPL/E142/2021.We shall be seeking your indulgence on the same. We regret the inconveniences caused.RegardsK Macharia & Co Advocates” 13.The record reflects that on the following day, namely 7th June 2023, when the matter was scheduled for hearing, learned counsel Mr. Anzala appeared for the 1st respondent, while Mr. Mugo held brief for Mrs. Wambugu for the appellant and also for Mr. Macharia for the 3rd respondent. There was no appearance on behalf of the 2nd respondent. Mr. Mugo then proceeded to make an oral application for an adjournment on the basis that lead counsel for the 3rd respondent (Mr. Macharia) was engaged in a matter before this Court (COACAPPL/E142/2021). The application was opposed by Mr. Anzala. The trial court in its ruling noted that the request had been communicated to opposing counsel only on the eve of the hearing and that no satisfactory explanation had been offered for the late notice, nor was there any evidence that the other parties had consented to the adjournment. The court further observed that on 5th October 2022 it had granted what it termed as a last adjournment at the instance of the defence. Bearing in mind its obligation to ensure expeditious disposal of cases, the trial court declined the application and directed that the matter proceeds from where it had reached, namely, the cross-examination of the 1st respondent’s witness. The court also indicated that it would give directions on the supplementary list of documents filed by the 1st respondent at 11.00 a.m. 14.The record further reflects that on the same date, the trial court found that the supplementary documents filed by the 1st respondent on 17th May 2023 were of no consequence, the 1st respondent’s case having already been closed on 26th September 2018 without reliance on those documents, and accordingly declined to give any directions in respect thereof. As per the proceedings, Mr. Mugo, holding brief for Mrs. Mwihaki for the appellant, indicated that he was unable to proceed with the cross-examination of the 1st respondent’s witness, stating that counsel was in Kajiado. The court consequently held that the appellant had forfeited the opportunity to cross-examine the witness. 15.Further, and although Mr. Macharia, who had been absent during the morning session later appeared, he too indicated that he was unable to proceed with the case as he had another matter before this Court scheduled for hearing at 12:15 p.m. In the circumstances, the trial court noted that both the appellant and the 3rd respondent had no witnesses present, despite the matter having proceeded as scheduled and, in light of its earlier refusal to grant an adjournment, directed that their respective defences be marked as closed. The court then granted the 1st respondent 21 days to file and serve its written submissions, with a corresponding timeline for the appellant and the 3rd respondent running from the date of service. Judgment was accordingly reserved for 29th September 2023. 16.Following the trial court’s refusal to grant the adjournment, the appellant moved the court vide an application dated 6th July 2023 seeking, in essence, to set aside the proceedings conducted on 7th June 2023, to reopen the defence case, and to be afforded an opportunity to be heard on the merits. The application also sought consequential reliefs, including a stay of further proceedings and/or enforcement of any resulting judgment pending its determination. 17.The grounds in support were, inter alia, that the refusal to grant an adjournment denied the appellant a fair hearing as counsel had been engaged before this Court and had communicated the difficulty in advance. The appellant further maintained that he had a substantive defence raising triable issues, that his absence was not deliberate, and that no prejudice would be occasioned to any of the parties that could not be compensated by an award of costs. 18.The trial court rendered its decision on the said application on 10th July 2023, holding that the issues raised by the appellant had already been addressed in its two earlier rulings of 7th June 2023. On that basis, it found the application dated 6th July 2023 devoid of merit and dismissed it accordingly. 19.The record further shows that the 3rd respondent had, vide an application dated 18th August 2023, sought to have the orders issued on 7th June 2023 vacated and to be allowed to call its witnesses. There is, however, no indication from the record if the trial court considered that application, or the outcome thereof, if any. 20.In the judgment giving rise to this appeal, the court began by noting that none of the parties complied with its directions on filing written submissions within the prescribed timelines, and as such, it disregarded the submissions filed by the parties out of time. 21.The trial court then framed a single issue for determination, namely, who between the parties was the rightful proprietor of the suit property. In its analysis, the trial court relied on the uncontroverted evidence of the 1st respondent. It found that the suit property was allocated to the 1st respondent vide a letter of allotment dated 29th September 1998, which required payment of Kshs. 44,000 being stand premium and ground rent within 30 days. The 1st respondent produced a receipt of the same date confirming payment, a beacon certificate dated 5th November 2001, and a registered lease issued on 1st July 2002, thereby demonstrating that its interest had crystallized into full proprietary rights. 22.By contrast, the appellant’s claim was based on a Temporary Occupation Licence issued on 29th September 1997, which the trial court noted had been subsequently terminated. The court emphasized that such a licence does not confer any proprietary interest in land and therefore could not override the 1st respondent’s rights of proprietorship. In reaching this conclusion, the trial court relied on the decision in Faraj Maharus V J.B Martin Glass Industries & 3 others [2005] eKLR, where it was held that a licence does not create any interest in land. 23.On the issue of trespass and damages, the trial court found that the appellant had erected temporary structures and used the land as a garage, and that this evidence was unchallenged. It further noted that earlier court orders issued on 13th July 2010 restraining occupation had been disobeyed. The court relied on Park Towers Ltd v John Mithamo Njika [2014] eKLR, which establishes that once trespass is proved, a claimant need not demonstrate specific loss to be awarded damages; rather, the court has discretion to assess damages based on the circumstances of the case. Applying this principle, the court assessed and awarded the 1st respondent general damages of Kshs. 8,000,000/-. 24.As regards the claims against the 3rd respondent, the trial court observed that it was a defunct entity and that no steps had been taken to substitute or join the proper party. Consequently, the court declined to make any further pronouncement against the said party. 25.Ultimately, the trial court concluded that the 1st respondent had proved its case on a balance of probabilities, affirmed its ownership of the suit property, and granted orders for eviction, demolition of structures, and damages for trespass. 26.Being aggrieved and dissatisfied with the decision of the trial court, the appellants lodged this appeal. In the memorandum of appeal dated 1st December 2023, the appellant contends that the learned judge erred in law and in fact by finding that the suit property belonged to the 1st respondent; by issuing eviction orders against the appellant; by awarding general damages of Kshs. 8,000,000; by holding that the 1st respondent’s allotment had crystallized into proprietary rights while disregarding the appellant’s evidence and denying him an opportunity to be heard; by violating the principle that no party should be condemned unheard; by granting orders contrary to the weight of evidence; by concluding that the 1st respondent had proved its case on a balance of probabilities; and by misdirecting itself through reliance on extraneous factors, thus leading to an erroneous decision. 27.At the hearing of this appeal, only learned counsel Mr. Anzala appeared for the 1st respondent. There was no appearance by the appellant or the other respondents, despite service of the hearing notice. Notwithstanding his absence, the appellant had filed written submissions dated 8th October 2024. For his part, Mr. Anzala relied substantially on the 1st respondent’s written submissions. 28.In his written submissions, the appellant begins by setting out certain issues that preceded delivery of the impugned judgment. In particular, he highlights the events of 7th June 2023 when the trial court declined to grant an adjournment sought by the 3rd respondent, despite prior communication that counsel for the 3rd respondent was engaged before this Court. He contends that this refusal led to the matter proceeding in a manner that was prejudicial to him, especially as the 1st respondent had indicated willingness to proceed later in the day. He further takes issue with the summary dismissal of his subsequent application to vacate the orders made on that date and points out that a similar application by the 3rd respondent remains undetermined. 29.The appellant further submits that the trial court failed to exercise its discretion judiciously and was influenced by extraneous considerations, thereby occasioning a miscarriage of justice. In this regard, reliance is placed on Daima Bank Limited (In Liquidation) v David Musyimi Ndetei [2018] eKLR, which restated the principles governing appellate interference with discretion as drawn from United India Insurance Co. Ltd. v East African Underwriters (Kenya) Ltd. [1985] EA 898. He further posits that the adjournment would not have prejudiced the 1st respondent as its counsel was agreeable to having the matter proceed later in the afternoon, a factor the learned judge failed to take into account. It is also contended that the refusal to grant an adjournment and the consequent closure of the defence case violated the cardinal principle that no party should be condemned unheard, as emphasized in Teleposta Pension Scheme Registered Trustees v Said Hemed & 3 others [2020] eKLR, Gulamhussein F Gulamhussein v Imperial Bank Limited (In Receivership) & another [2018] eKLR, and Abdulrehman v Almaery [1978] eKLR. 30.It is also contended that the trial court failed to properly evaluate the pleadings and evidence on record and instead relied on matters that were not legally tenable, including reference to an original defence by the 3rd respondent that had since been amended. The appellant invokes the principle stated in Bullen & Leake & Jacob’s Precedents of Pleadings, Twelfth Edition, that once pleadings are amended, the original pleadings cease to define the issues in controversy. 31.The appellant further challenges the finding that the 3rd respondent was a defunct entity and therefore not properly before the court. Relying on section 59 of the Urban Areas and Cities Act and the decision in Interim County Secretary, County Government of Kakamega v Republic Ex parte Ali Adam & another [2017] eKLR, he contends that the transition from local authorities did not extinguish existing rights or proceedings, which by law continue against the relevant successor entities. 32.Finally, the appellant maintains that the trial court’s findings were inconsistent with the evidence and that it failed to consider material circumstances of the case, thereby arriving at an erroneous conclusion. He submits that these errors justify appellate intervention and, relying on Mbogo & Another v Shah [1968] EA 15 on the principles governing interference with judicial discretion, urges that the appeal be allowed with costs. 33.On its part, the 1st respondent, vide written submissions dated 30th May 2024, contends that the appeal is devoid of merit and that the trial court properly evaluated both the evidence and the law, thereby arriving at the correct decision. It maintains that it is the lawful registered proprietor of the suit property, having been duly allocated the land, paid the requisite stand premium, obtained a beacon certificate, and issued with a registered lease. It submits that the appellant has remained in unlawful occupation since 2002, despite demand to vacate, and is therefore a trespasser with no legal or equitable interest in the property. 34.On the issue of title, the 1st respondent emphasizes that as per section 23 of the Registration of Titles Act (repealed), its certificate of lease conferred upon it absolute ownership and that the appellant neither pleaded nor proved any fraud capable of impeaching that title. It contends that fraud must be specifically pleaded and strictly proved, and that the appellant’s defence discloses no such pleading or evidence. In those circumstances, it contends that the trial court was correct in upholding its title as indefeasible. 35.The 1st respondent further submits that the appellant’s claim is founded solely on a Temporary Occupation Licence which in law does not confer any proprietary interest. It relies on Faraj Maharus v J.B. Martin Glass Industries & 3 others (supra), where this Court held that such a licence cannot create or transfer title to land. Reliance is also placed on Blue Quadrant Hospitality Limited v Nairobi City County & another (ELC Case E340 of 2022) [2023] and Satrya Investments Limited v J.K. Mbugua [2013] eKLR, which affirm that a licence does not vest ownership rights in land. In any case, the 1st respondent asserts, the Temporary Occupation Licence was terminated by the 3rd respondent and upon issuance of the certificate of lease, the appellant could not claim a greater right over the suit property than the 1st respondent. Based on the foregoing, the 1st respondent contends that the order of eviction was properly made. 36.With regard to the events of 7th June 2023, the 1st respondent submits that the matter had been fixed for hearing by consent and that the trial court properly exercised its discretion in declining the adjournment sought. The 1st respondent points out that the request for adjournment was precipitated by an email from counsel for the 3rd respondent sent on 6th June 2023, a day before the scheduled hearing, and to which counsel for the 1st respondent responded the following morning at about 8.00 a.m., indicating that, owing to the age of the matter, his client had instructed that the hearing proceeds as scheduled. The 1st respondent further notes that although counsel for the 3rd respondent indicated that he was engaged before this Court, no formal notice from this Court was served upon the parties to substantiate that position. 37.The 1st respondent asserts that the appellant was present through counsel and was afforded an opportunity to cross-examine the 1st respondent’s witness but declined to do so, while neither the appellant nor any witnesses for the 3rd respondent were present in court, despite the court having directed that the matter was to proceed as scheduled. The 1st respondent states that, in any event, as at that date, the 3rd respondent had not filed any witness statements. In those circumstances, it is contended the trial court was justified in marking their respective cases as closed. It is further submitted that as per Mbithuka Titus v Jackline Mutindi [2020] eKLR and Pandya Memorial Hospital v Geeta Joshi [2020] eKLR, an adjournment is not a right accruing to any party but a matter within the court’s discretion, to be granted only upon sufficient and bona fide reasons. Further reliance is placed on Mwangi v Consolidated Bank of Kenya Limited & 3 others [2024] KECA 250 (KLR) for the proposition that a party cannot claim to have been condemned unheard where an opportunity to be heard was available but not taken. 38.On damages, the 1st respondent supports the award of Kshs. 8,000,000/- for trespass, submitting that it had been unlawfully deprived of the use of its property since 2002. In addition, that an order made on 13th July 2010 requiring the appellant to vacate the suit property was not complied with. It relies on Haithar Haji Abdi & another v Southdowns Developers Limited [2013] eKLR for the principle that a party wrongfully deprived of land is entitled to damages, and contends that the award made by the trial court was justified in the circumstances. In response to a query by the Court on the basis of the award, counsel reiterated that the appellant has remained in possession of the property for over 20 years despite the order for vacant possession and continues to use it for commercial purposes, thereby depriving the 1st respondent of its use. He submitted that the award was an exercise of judicial discretion, informed by comparable decisions in which damages ranged between Kshs. 5 million and Kshs. 20 million. 39.Finally, the 1st respondent maintains that the trial court’s findings were fully supported by the evidence on record and that the appellant has not demonstrated any legal basis to warrant interference with the judgment. It accordingly urges that the appeal be dismissed with costs and that the sum of Kshs. 4,000,000/-, being half of the decretal amount held in the joint account, be released to its advocates in partial satisfaction of the decree. 40.This being a first appeal, it is well settled that this Court is not bound to accept the findings of fact made by the trial court. A first appeal proceeds by way of a rehearing, and the duty of this Court is to reconsider the evidence on record, evaluate it independently, and draw its own conclusions. However, as held by this Court (per Hancox, JA, as he then was), in Mohammed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KLR 661; [1986-1989] EA 183:The appellate Court only interferes with the trial Court’s findings of fact if it is shown that he took into account facts or factors which he should have not taken into account, or that he failed to take into account matters of which he should have taken into account, that he misapprehended the effect of the evidence or that he demonstrably acted on wrong principles in reaching the findings he did.” 41.In doing so, however, the Court must also bear in mind that it neither saw nor heard the witnesses testify and must therefore make due allowance for that limitation. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] EA 1. 42.We have carefully considered the record of appeal, the impugned judgment, the grounds advanced in the memorandum of appeal, the submissions of the parties, and the applicable law. In our view, this appeal turns on three principal issues, namely, whether the trial court properly exercised its discretion in declining the adjournment sought on 7th June 2023 and in thereafter closing the appellant’s case; whether the trial court erred in its determination on the ownership of the suit property; and whether, in the circumstances, the award of general damages for trespass was warranted. 43.As regards the first issue, it is trite law that the discretion to grant or refuse adjournments is within the ambit of the trial court. Such discretion must, however, be exercised judiciously and on sound principle. An application for adjournment ought to be supported by reasons that satisfactorily explain the absence of a litigant or counsel on the material day. A trial court is not bound to allow such an application where it is not persuaded that the reasons advanced are sufficient, credible, and made in good faith. 44.Further, in Japheth Pasi Kilonga & 8 others v Mombasa Autocare Limited [2015] eKLR, this Court observed as follows on the adjournment of cases:“The single most drawback in the administration of justice in this jurisdiction is the delay in the determination of cases, resulting in the overwhelming case backlog. Adjournment has been identified as the leading contributing factor to this. Lord Denning, MR in the oft-cited case of Fitzpatrick v Batger & Co. Ltd (1967) 2 A11 ER 657 warned that;Public policy demands that the business of the courts should be conducted with expedition.”Like never before today this policy is emphasized more as it is underpinned in the Constitution. Article 159(2) (b) & (d) enjoins courts to ensure justice is not delayed and is administered without undue regard to procedural technicalities. Sections 14(5) of the Supreme Court Act, 3A and 3B of the Appellate Jurisdiction Act and 1A and 1B of the Civil Procedure Act have also enacted the overriding objective which require the courts to facilitate the just, efficient, expeditious, proportionate and affordable resolution of disputes.” 45.In the present case, the record shows that the 3rd respondent’s request for an adjournment was communicated to the 1st respondent and the other parties on the eve of the hearing, viz, 6th June 2023 at 4.17 p.m. Further, apart from the intimation that the 3rd respondent’s lead counsel was scheduled to appear before this Court on the following day when the trial was to proceed, there was no formal communication or notice from this Court served upon the parties to confirm that counsel was indeed engaged elsewhere. 46.From our perusal of the ruling declining the application for adjournment, it is evident that the trial court took into account that, on 5th October 2022, it had granted what it expressly termed as a last adjournment at the instance of the defence. In granting that indulgence, the court was mindful of the age of the matter, which had been pending since 2008, and the corresponding need to ensure that justice is administered without undue delay. 47.When the matter eventually proceeded for hearing as directed, Mr. Mugo, holding brief for Mrs. Mwihaki for the appellant, declined to cross-examine the 1st respondent’s witness, despite being afforded the opportunity to do so. Moreover, neither the appellant nor any witnesses for the 3rd respondent were present in court. The record further shows that the 1st respondent’s witness was in a frail and sickly condition, a factor that, in our view, heightened the prejudice that would have arisen from any further adjournment. 48.In those circumstances, and bearing in mind the history of the proceedings, we are unable to fault the trial court’s conclusion that the appellant had forfeited the opportunity to participate further in the proceedings. Therefore, and guided by the well-known principles in Mbogo & another v Shah (supra), we find no basis for interfering with the exercise of the trial court’s discretion, there being no evidence that the learned judge misdirected himself, took into account irrelevant matters, failed to consider relevant factors, or otherwise arrived at a plainly wrong conclusion. 49.The appellant’s contention that he was denied a fair hearing must also be considered against the settled principle that the right to be heard is not a licence for indolence. As this Court observed in Mwangi v Consolidated Bank of Kenya Limited & 3 others (supra), where a party has been afforded an opportunity to be heard but fails to utilize it, such a party cannot subsequently complain that he was denied that right. The right to be heard does not avail a litigant who, by his own conduct, declines to participate in the proceedings or seeks to delay them. While courts are enjoined, in fidelity to the Constitution and the overriding objective, to determine disputes on their merits, that imperative must be balanced against the equally important duty to ensure the efficient and expeditious disposal of cases, and cannot be invoked to undermine the orderly conduct of proceedings. In the circumstances of this case, we are satisfied that the appellant was afforded a reasonable opportunity to be heard but failed to utilize it. 50.Turning to the issue of ownership, the evidence on record shows that the 1st respondent was duly issued with a letter of allotment dated 29th September 1998, which required payment of stand premium and ground rent within the stipulated period. The 1st respondent complied with those conditions, as evidenced by the receipt issued on the same date acknowledging payment of the requisite sums. Thereafter, a beacon certificate was issued on 5th November 2001, and ultimately, a lease in favour of the 1st respondent was registered on 1st July 2002. This sequence of events demonstrates a clear and unbroken process of allocation culminating in registration, thereby vesting in the 1st respondent a legally cognizable interest in the suit property. 51.Under section 23(1) of the Registration of Titles Act (repealed), which was the applicable legal regime at the material time, a certificate of title issued upon registration constituted prima facie evidence that the person named therein was the absolute and indefeasible owner of the property, subject only to encumbrances noted on the register and to challenge on the ground of fraud or misrepresentation to which the proprietor was proved to be a party. That protection extended equally to leasehold interests upon registration. In the present case, the 1st respondent’s interest crystallised upon the issuance of a certificate of lease following registration of the lease. The appellant neither pleaded nor proved fraud to the required standard. As this Court held in Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR, allegations of fraud must be specifically pleaded and strictly proved. 52.By contrast, the appellant’s claim was founded on a Temporary Occupation Licence issued in his favour on 29th September 1997. The record shows that this licence was subsequently terminated by the 3rd respondent through a notice dated 2nd October 2000, thereby bringing any rights thereunder to an end. The legal position regarding such licences is settled. In Faraj Maharus v J.B. Martin Glass Industries & 3 others (supra), this Court held thus:“It is indeed settled law in Kenya that a Temporary Occupation Licence to occupy Government Land is not sufficient to create or transfer title to the grantee or his personal representative. As was stated in RUNDA COFFEE ESTATE LTD V. UJAGAR SINGH [1966] E.A. 564:“It is the essence of a licence of this nature that it is personal to the licencee and creates no interest which can be disposed by the licencee. As has been said well over 100 years ago, it creates nothing substantial which is assignable”. 53.A Temporary Occupation Licence does not create or confer any proprietary interest in land. We agree with the trial court that such a licence, particularly one that had been terminated, could not override the proprietary rights of a registered lessee. The trial court therefore correctly concluded that the 1st respondent’s interest had crystallized into full proprietary rights and that the appellant was in unlawful occupation of the suit property. 54.On the award of damages, the law is settled that trespass to land is actionable per se, viz, without the need to prove actual damage. It follows, therefore, that once trespass is established, a claimant is entitled to an award of damages notwithstanding the absence of proof of specific loss. In Park Towers Limited v John Mithamo Njika & 7 others [2014] eKLR, it was held that the court has discretion to assess damages for trespass based on the circumstances of each case. In the present case, the evidence shows that the appellant remained in occupation of the suit property for over two decades and continued to use it for commercial purposes, despite an express court order requiring him to vacate, thereby effectively disenfranchising the 1st respondent of the use and enjoyment of its property over that prolonged period. This Court, in the case of Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55, set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.” 55.In those circumstances, we cannot say that the award of Kshs.8,000,000/- was inordinately high or based on wrong principles so as to warrant interference. 56.Finally, as regards the peripheral question whether the trial court erred in declining to grant orders against the 3rd respondent on account of its status, we note that although section 59 of the Urban Areas and Cities Act, Cap 275 preserves pending proceedings against successor entities, that issue does not bear on the central findings on ownership and trespass as between the appellant and the 1st respondent. Even assuming that substitution or joinder of a successor entity was necessary, that omission would not affect the determination of the respective rights of the parties before the court.In any event, and for the reasons already set out above, the appellant’s claim fails on the merits. 57.In the end, we find no merit in this appeal. It is hereby dismissed with costs to the 1st respondent. We further direct that the sum of Kshs. 4,000,000/- held in the joint interest earning account be released to the 1st respondent’s advocates in partial satisfaction of the decree. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.D. K. MUSINGA…………………………………JUDGE OF APPEALMUMBI NGUGI…………………………………JUDGE OF APPEALG. V. ODUNGA…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.