[2025] KEELC 4550 (KLR)

Salim & another v County Government of Kilifi & 18 others (Environment & Land Case 38 of 2018) [2025] KEELC 4550 (KLR) (12 June 2025) (Judgment)

Neutral citation: [2025] KEELC 4550 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment and Land Case 38 of 2018

EK Makori, J

June 12, 2025

Between

Fatuma Abdalla Salim

1st Plaintiff

Majid Mohamed Said

2nd Plaintiff

and

The County Government Of Kilifi

1st Defendant

Stephen Kenha Gona

2nd Defendant

Justus Kzungu

3rd Defendant

Sheban Ngumbao Vumi

4th Defendant

Charo Kahindi Gohu

5th Defendant

Japhet Randu Hare

6th Defendant

Kazugu Facho

7th Defendant

Shehe Nzovu

8th Defendant

Willington Kahindi

9th Defendant

Kahindi Charo Kung’Azi

10th Defendant

Sammy Yaa

11th Defendant

Gabriel Kiponda

12th Defendant

Stephen Katiku

13th Defendant

Charo Ndeu

14th Defendant

John Birya & Makosi

15th Defendant

National Lands Commission

16th Defendant

Director of Land Adjudication & Settlement

17th Defendant

Director Of Survey

18th Defendant

Registrar of Lands, Kilifi County

19th Defendant

Judgment

1. The plaintiffs filed an amended plaint against the County Government of Kilifi and eighteen other parties on March 28, 2024, seeking, among other things:a.A declaration that the Plaintiffs are the owners of Plot Number 160 Mambrui (hereinafter referred to as the “suit property”)b.An order evicting the Defendants herein from the suit property.c.An order that the structures constructed by the Defendants in the suit property be demolished at the Defendant’s costsd.An order for compensation of the plaintiffs at the current market rate for the suit property measuring fifty-three (53) acres.

2. The matter before this court concerns the unlawful deprivation and dispossession of proprietary rights held by the plaintiff, who alleges to be the rightful and beneficial owner of Plot Number 160-Mambrui, CR 5458, which spans 53 acres. This has allegedly occurred through unconstitutional, irregular, and unlawful encroachment by the 2nd to 15th defendants, who are merely squatters lacking any registrable or legally enforceable interest in the suit property.

3. The 1st defendant submitted a defense dated April 11, 2018. Subsequently, on August 17, 2018, the plaintiff modified the plaint to include the 2nd through 15th defendants, who are the subjects of this suit but did not file any response – I will address this issue later in this judgment.

4. The plaintiff, upon applying to this court, was granted permission by Olola J. to effectuate substituted service on the 2nd to 15th defendants through publication in the Daily Nation newspaper dated October 9, 2020. Despite this method of service, the defendants neither entered an appearance nor filed a defense. As a result, an interlocutory judgment was duly entered against them.

5. The plaint was further amended on November 12, 2020, to include the 16th, 17th, 18th, and 19th Defendants. The Honorable Attorney General entered an appearance, mistakenly claiming to represent the 2nd and 3rd Defendants instead of the 18th and 19th defendants, which led the plaintiff to file a Preliminary Objection that remains unresolved.

6. On March 28, 2024, an amendment to the plaint was finalized, appointing Majid Mohamed Said as the legal representative, succeeding the deceased plaintiff.

7. The matter proceeded to trial with the participation of the plaintiff and the 1st defendant. At the conclusion of their respective cases, the court instructed that the issues raised be addressed through written submissions. I acknowledge the submissions made by Mr. Onchagu, representing the plaintiff, and Ms. Kinuva, representing the 1st defendant.

8. Majid Mohamed Said, the son of the deceased plaintiff, served as the sole witness, presenting into evidence the Plaintiff's List of Documents dated March 28, 2024, which was designated as Exhibits 1-6 in the specified order. He contends that they maintained peaceful and uninterrupted possession of the subject property until October 5, 2006, when surveyors assigned to survey the land were forcibly repelled by squatters who had unlawfully constructed structures on the property. The plaintiff submitted photographic evidence published in the Daily Nation, illustrating this hostile takeover. The plaintiff made several attempts to amicably resolve the dispute through consultations with the village headman, area chief, and the Malindi Sub-County Commissioner, who issued a verbal notice instructing the Defendants to vacate the property. Despite these efforts, the defendants continued to occupy the premises unlawfully up to the present day.

9. The 1st defendant did not call any witnesses; however, it argues that the plaintiff’s suit is incompetent, legally deficient, and should be dismissed with costs for the reasons outlined in the written submissions.

10. Based on the materials submitted for consideration, the matters requiring adjudication by this court include the following: whether the plaintiff possesses locus standi to pursue the present suit; whether the parties named in the proceedings have been appropriately joined; whether the plaintiffs are the rightful owners of Plot No. 160-Mambrui (53 acres); whether the second to fifteenth defendants have unlawfully entered upon the suit property; and determining who should bear the costs associated with this litigation.

11. It should be noted that the plaint in this matter underwent several amendments, introducing various parties along the way. A cursory examination of the prayers sought reveals that the primary request by the plaintiff is for the eviction of the 2nd to 15th defendants, as well as those who claim under them. The inclusion of the 1st, 16th, 17th, 18th, and 19th defendants has not been substantiated at all; At best, it brings together an unsettling combination of those parties, as I cannot deduce any cause of action against them. I need not elaborate further on this point.

12. As submitted by the 1st defendant, a further examination of the single piece of evidence provided by the 2nd plaintiff indicates that he did not establish his legal interest in the property in question. Initially, he served merely as a witness; however, he was later included as a party to the suit through the Amended Plaint, which was revised on November 12, 2020 (to be distinguished from the “Amended Plaint” of March 28, 2024, which was relied upon during the hearing).

13. At the hearing, the said plaintiff submitted six (6) documents as outlined in the Plaintiff’s List of Documents dated November 12, 2020. None of these documents demonstrated the second plaintiff’s interest in the suit property or established that he had been lawfully appointed the legal representative of the estate of the 1st plaintiff for the purposes of the suit, either solely or otherwise.

14. Additionally, as noted in the Notice of Motion dated April 12, 2024, the first plaintiff passed away on April 17, 2023, while the plaint was being further amended as of March 28, 2024. Consequently, the second plaintiff, who is neither the registered owner nor the occupant of the property in question, and is not the representative of the estate of the 1st plaintiff, lacks the locus standi to support the claim filed by the deceased 1st plaintiff.

15. Regarding the merits of the case, and as accurately submitted by the first defendant, with whom I agree, it is well-established legal principle that anyone who desires a court to render a judgment concerning any legal right or liability that is contingent upon the existence of asserted facts must substantiate the existence of those facts. This is the essence of section 107 (1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides that:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

16. Concerning whether the plaintiff has established a case against the defendants, an analysis of the pleadings and evidence presented before the court will not only demonstrate that the plaintiffs did not prove their case on a balance of probabilities, but also that the case constitutes a grave abuse of the court process, warranting dismissal.

17. The plaintiff in this case intentionally failed to serve process on the remaining defendants properly, thus undermining the fundamental principles of natural justice. The plaintiff provided sworn testimony claiming that the alleged squatters encroached on the subject property on October 5, 2006; however, this date was not included in the pleadings. The plaint does not specify when the supposed squatters trespassed on the land; the 2006 date serves merely as a reference for surveying purposes, coinciding with the moment the alleged squatters expelled the officials who attempted to survey the property, an event documented in the daily newspapers. A key question remains: When did the suspected squatters unlawfully occupy this land? Furthermore, why was personal service not provided to these parties, considering their known presence on the land? Why was substituted service used? I will address this issue in my concluding remarks.

18. Regarding the fundamental issue of eviction, I concur with the assertions made by the 1st defendant that it is a well-established principle of law that evictions must be executed in accordance with the law and through appropriate judicial orders.

19. In the matter of Mitubell Welfare Society v The Attorney General & 2 Others [2021] eKLR, the Supreme Court ruled that:“Evictions should be conducted in strict adherence to the Constitution and statutory laws. The right to housing and dignity of affected persons must be respected, and a valid court order is a prerequisite for any eviction."

20. The aforementioned position is supported by the ruling in Satrose Ayuma & 11 Others v Kenya Railways Corporation & 3 Others [2015] eKLR, in which the court underscored that public authorities, including county governments, are prohibited from arbitrarily evicting individuals from land without following due process.

21. The procedure for executing evictions, as stipulated by the aforementioned judicial authorities, has been codified. This procedure is detailed in the Land Laws (Amendment) Act, 2016 (No. 28 of 2016). It is suggested that the plaintiff in this matter should have followed the roadmap provided in the provisions enumerated below regarding the conduct of evictions, rather than how the current suit was initiated.

22. Sections 152A, 152B,152E and 152 F of the said Act provide as follows:“152A.Prohibition of unlawful occupation of land.A person shall not unlawfully occupy private, community or public land.152B.Evictions to be undertaken in accordance with the Act.An unlawful occupant of private, community or public land shall be evicted in accordance with this Act.152E.Eviction Notice to unlawful occupiers of private land.(1)If, with respect to private land the owner or the person in charge is of the opinion that a person is in occupation of his or her land without consent, the owner or the person in charge may serve on that person a notice, of not less than three months before the date of the intended eviction.(2)The notice under subsection (1) shall –SUBPARA (a) be in writing and in a national and official language;SUBPARA (b)in the case of a large group of persons, be published in at least two daily newspapers of nationwide circulation and be displayed in not less than five strategic locations within the occupied land;SUBPARA (c)specify any terms and conditions as to the removal of buildings, the reaping of growing crops and any other matters as the case may require; andSUBPARA (d)be served on the deputy county commissioner in charge of the area as well as the officer commanding the police division of the area.152F.Application to Court for relief.(1)Any person or persons served with a notice in terms of sections 152C, 152D and 152E may apply to Court for relief against the notice.(2)The Court, after considering the matters set out in sections 152C, 152D and 152E may-(a)confirm the notice and order the person to vacate;(b)cancel, vary, alter or make additions to the notice on such terms as it deems equitable and just;(c)suspend the operation of the notice for any period which the court shall determine; or(d)order for compensation.152G.Mandatory procedures during eviction.(1)Notwithstanding any provisions to the contrary in this Act or in any other written law, all evictions shall be carried out in strict compliance with the following procedures-(a)be preceded by the proper identification of those taking part in the eviction or demolitions;(b)be preceded by the presentation of the formal authorizations for the action;(c)where groups of people are involved, government officials or their representatives to be present during an eviction;(d)be carried out in a manner that respects the dignity, right to life and security of those affected;(e)include special measures to ensure effective protection to groups and people who are vulnerable such as women, children, the elderly, and persons with disabilities;(f)include special measures to ensure that there is no arbitrary deprivation of property or possessions as a result of the eviction;(g)include mechanisms to protect property and possessions left behind involuntarily from destruction;(h)respect the principles of necessity and proportionality during the use of force; and(i)give the affected persons the first priority to demolish and salvage their property.

23. The provisions of the Land Act 2012(as amended) outline the procedures for evicting individuals who are unlawfully occupying land. Section 152A of the Land Act 2012(as amended) prohibits the explicit unlawful occupancy of land, whether it is private, public, or community land. Additionally, Section 152E of the Act states that an individual unlawfully occupying private land may receive a notice to vacate. Section 152F outlines the provisions for seeking relief against such an eviction notice, granting the individual who gets the notice the right to petition the court for appropriate relief as deemed suitable under the circumstances. After reviewing the application, the court may grant appropriate relief, which can include cancellation, variation, or suspension of the notice. Furthermore, the court has the authority to require compensation to be paid. Beyond these remedies, the court is also empowered to uphold the notice and order the eviction of those unlawfully occupying the land.

24. This procedure appears to have been entirely overlooked by the plaintiff, thereby obfuscating the current claim. It is imperative that the alleged squatters were personally served for this court to consider their occupation of the disputed property, in light of the doctrine of adverse possession, given that the plaintiff has not provided the timeframe regarding when they invaded and trespassed upon that land. Furthermore, it is necessary to ascertain the number of alleged squatters to facilitate orderly evictions.

25. Additionally, the plaintiff’s claims were inconsistent and unattainable. For example, the assertion that the 1st defendant failed to assist in evicting the alleged squatters and the request for compensation seem tenuous, as the 1st defendant does not allocate land or handle evictions. Furthermore, the inclusion of the 16th through 19th defendants was never substantiated.

26. As a result of the foregoing, the plaintiffs' suit is dismissed with costs awarded to the 1st defendant.

DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON THIS 12TH DAY OF JUNE, 2025. E. K. MAKORIJUDGEIn the Presence of:Mr. Onchagu for the PlaintiffMs. Kinuva for the 1st DefendantHappy: Court Assistant