Catholic Archdiocese of Mombasa (Registered Trustees) v Kinango Sub-County Hospital & 4 others (Environment and Land Case E017 of 2024) [2026] KEELC 3855 (KLR) (15 June 2026) (Judgment)

Catholic Archdiocese of Mombasa (Registered Trustees) v Kinango Sub-County Hospital & 4 others (Environment and Land Case E017 of 2024) [2026] KEELC 3855 (KLR) (15 June 2026) (Judgment) Neutral citation: [2026] KEELC 3855 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Environment and Land Case E017 of 2024 LL Naikuni, J June 15, 2026 Between The Catholic Archdiocese Of Mombasa (Registered Trustees Plaintiff and Kinango Sub-County Hospital 1st Defendant The County Government of Kwale 2nd Defendant The National Land Commission 3rd Defendant The Ministry of Lands 4th Defendant Attorney General 5th Defendant Judgment I. Preliminaries 1.The Judgement by this Honourable Court pertains to the Civil suit instituted by THE CATHOLIC ARCHDIOCESE OF MOMBASA, (The Registered Trustees) The Plaintiff herein. It was through the Plaint dated 19th March, 2024. The suit was against Kinango Sub ‑ County Hospital, The County Government of Kwale, The National Land Commission, The Ministry of Lands, and The Attorney‑General, the 1st, 2nd, 3rd, 4th & 5th Defendants herein. The suit is premised upon the provision of Articles 40 and 62 of the Constitution of Kenya, 2010, Sections 24, 25 and 26 of the Land Registration Act No. 3 of 2012, Sections 5 and 6 of the Trustees (Perpetual Succession) Act Cap 164, and Section 13 of the Environment and Land Court Act No. 19 of 2011, together with Order 3 Rule 1 and Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law. 2.Upon service of the pleading and summons to enter appearance, the Defendants entered appearance as follows:-a.The 3rd Defendant filed their Memorandum of Appearance dated 24th September, 2024.b.The 4th and 5th Defendants filed their memorandum of Appearance dated 9th April, 2024.c.There was no appearance for the 1st & 2nd Defendants. 3.By and large, the Defendants through their Counsel stated that they would not be calling any witnesses as they had been wrongly joined into the suit. According to them, there was no cause of action against them. II. The Description of the Parties 4.The Plaintiff, The Catholic Archdiocese of Mombasa (Registered Trustees), is a religious trust duly registered and incorporated under the Trustees (Perpetual Succession) Act Cap. 164 Laws of Kenya. 5.The 1st Defendant, Kinango Sub‑County Hospital, is a public health facility maintained and/or managed by the County Government of Kwale. 6.The 2nd Defendant, The County Government of Kwale, is a devolved government established under Article 176 of the Constitution of Kenya, 2010, charged with the administration of health services and management of public facilities within Kwale County. 7.The 3rd Defendant, The National Land Commission (NLC), is a constitutional commission established under Article 67 of the Constitution of Kenya, 2010, mandated to manage public land on behalf of the national and county governments and to advise on land policy. 8.The 4th Defendant, The Ministry of Lands, is a department of the National Government responsible for land registration, adjudication, and physical planning pursuant to the Land Registration Act No. 3 of 2012 and the Land Act No. 6 of 2012. 9.The 5th Defendant, The Attorney‑General of the Republic of Kenya, is the principal legal adviser to the Government under Article 156 of the Constitution of Kenya, 2010, and is sued on behalf of the 4th Defendant and other government entities implicated in the dispute. III. Court directions before the hearing 10.On 25th June, 2025, after confirming Parties compliance under Order 11 of the Civil Procedure Rules, 2010, the Court set the hearing for the 17th July, 2025 wherein the Plaintiff called one witness and marked their case closed after which the Defendants closed their case without calling a witness. IV. The Plaintiff’s case 11.The brief facts of the Plaintiff’s case were that at all material times to this suit, the Plaintiff herein is and/or the lawful and/or legal owner of the suit premises, described as Plot No. 2 Zone 4 /Kinango measuring approximately 2.80 Hectares situate at Kinango within Kwale County, which said suit land houses, both the 1st Defendant and a Catholic Convent of the Sisters of St. Joseph Community of the Catholic Church, having been donated to the Plaintiff by the local community in the year 1960s. The Plaintiff averred that following the said offer or donation, the Plaintiff through its predecessors, constructed the current Kinango Sub-county Hospital in year 1969 after which, the Plaintiff through a letter dated 4th December,1970 handed over the hospital buildings to the Government for MAINTENANCE PURPOSES ONLY, which was pursuant to a request made by the Government of Kenya through its letter of 19th November,1969. 12.The Plaintiff averred further that at the time of the said donation and/or construction of the Hospital buildings, the suit premises was unsurveyed and/or undemarcated but in August, 1969 a Part Development Plan (PDP) was prepared for the entire land within the area, including the suit premises by the Physical Planning Department of the Ministry of Lands, Housing and Physical Planning, the 4th Defendant herein, who subsequently revised the same in April, 1990, while maintaining the Plan as drawn. The Plaintiff averred and maintained that evidence on ownership of the suit premises by the Plaintiff was also captured vide a letter of 27th August, 1982 written by the Sisters of St. Joseph, a Catholic Community of the Plaintiff herein on maintaining the terms and condition of the handing over of the Hospital to the Government. 13.The Plaintiff stated that, fearing the ill intentions and/or motive by the 1st Defendant, the Plaintiff wrote a letter dated 14th August, 2014 to the Chairman of the National Land Commission, Nairobi for issuance of a title deed in respect of the suit premises in its favour so that no ownership wrangles or disputes arise and since, the Plaintiff is already recognized as the lawful and/or legal owner of the suit premises, it was expected that the application would be treated with the utmost urgency it deserved. The Plaintiff stated further that despite the above being known to the 1st Defendant, a letter was made and/or written on 22nd September, 2014 by the said Defendant to the Ministry of Lands, the 4th Defendant for the latter to issue the former with an allotment letter and a Title deed in respect to the suit premises, which request was declined as the handing over of the hospital buildings to the government was only for maintenance purposes and moreover, the handing over of the said buildings cannot be construed to be a handing over for purposes of ownership of both the hospital buildings and the land on which the building stand. 14.Further, the Plaintiff stated and maintained that vide a letter of 1st October, 2014, the Plaintiff reminded the Ministry of Lands, through the County Lands Adjudication Officer, Kinango that there was no transfer of the suit land to the government in 1969 or 1970 as the handing over of the hospital buildings and/or equipment was for maintenance purposes only. The Plaintiff averred that it was shocked on 15th March, 2024, when it learnt and/ or discovered from the management of the 1st Defendant that a Mosque was being constructed on the suit premises without the Plaintiff's authority and/or consent and/or permission, prompting a Demand letter dated 16th March,2024 which was duly served on the 1st and 2nd Defendants but the 1st and 2nd Defendants have declined and/or refused and/or neglected to comply with the Notice, hence rendering these proceedings necessary. 15.According to the Plaintiff the Defendants' actions herein are unlawful and/or illegal and/or unprocedural and/or without any colour of right, whatsoever and are meant to dispossess the Plaintiff of their parcel of land, the suit premises herein which also houses the Convent of Sisters of St. Joseph Community, being a society within the Plaintiff's Church. The Plaintiff stated that though it might not be necessary to mention and/or state herein but the Part Development Plan (PDP) prepared by the Ministry of Land in 1969 and revised in 1990, every institution within the area was allocated its own portion of land as shown hereunder and in particular those in Zone 4:i.Plot No.1 - Cemetery (0.81 hectares)ii.Plot No. 2 - Hospital (the suit premises) (2.80 Hectares).iii.Plot No.3 - Church (0.55 Hectares)iv.Plot No.4 - Government Administration (1.89 Hectares).v.Plot No. 5 - Mosque (0.16 Hectares).vi.Plot No.6...Ministry of Culture and Social Services (0.17 Hectares).vii.Plot No.7 - Church (0.72 Hectares).viii.Plot No.8 - Ministry of Agriculture (1.32 Hectares).ix.Plot No.9 - Ministry of Livestock Development (0.42 Hectares).x.Plot No.10 - Post office (0.30 Hectares).xi.Plot No.11 - Administration (0.46 Hectares).xii.Plot No.12 - Church (0.24 Hectares).xiii.Plot No.13 - Police (0.40 Hectares).xiv.Plot No.14 - Monr Forest tree Nursery (1.35 Hectares) 16.The Plaintiff further averred that based on the allocation, there was no reason, whatsoever why a mosque should be constructed on the Plaintiff's land, the suit premises herein as the existing mosque was only less than 100 Meters away the suit premises and that is why the fear of dispossession was coming in. The Plaintiff stated that the 1st Defendant and by extension, the other Defendants herein were either proceeding and/or allowing the construction of the mosque to proceed and therefore, it would be in the best interest of justice for temporary injunctive orders to be issued so that the subject matter of the suit was preserved and/or maintained, hence the application herein. 17.The Plaintiff further stated that owing to the above, the Plaintiff was now apprehensive that the Defendants and in particular, the 1st and 2nd Defendants herein may dispossess it of its land, the suit premises herein, yet the same belonged to the Plaintiff and that the 1st and 2nd Defendants were bear Licencees on the suit land, with no proprietary interest or rights over the same. The Plaintiffs claim against the Defendants therefore was for a finding and/or a declaratory order that the suit premises, being Plot No. 2 Zone4 /Kinango measuring approximately 2.80 Hectares situate at Kinango within Kwale County was a property of the Plaintiff and consequently ownership documents be issued to the Plaintiff. 18.The Plaintiff in the interest of the public sought for an order that the subject area covering Zone 4 and other zones within the entire parcel of land whose planning was conducted in was 1969 and revised in 1990 by the Ministry of lands be considered for adjudication and/or allocation and/or registration and/or procurement and/or issuance of ownership documents so that no further wrangles and/or disputes are witnessed in the area and its neighbourhood. The Plaintiff’s further claimed against the Defendants was a finding that the 1st Defendant was a bear licencee on the suit premises, being Plot No. 2 Zone 4/Kinango measuring approximately 2.80 Hectares situate at Kinango within Kwale County only allowed to maintain the Hospital buildings and its equipment as per the handing over letter of 4th December, 1970 which was pursuant to a request letter of 19th November, 1969. 19.Accordingly, the Plaintiff sought for permanent injunctive orders, restraining the Defendants and/or their agents and/or employees and/or servants and/or relatives or any other person(s) acting on the Defendants' behalf from erecting any structure(s) and/or sub - dividing and/or alienating and/or allocating and/or registering and/or transferring the suit premises, described herein as Plot No.2 Zone 4/Kinango measuring approximately 2.80 Hectares situate at Kinango within Kwale County, or any portion(s) thereof and/or dealing with the suit premises in any manner, whatsoever detrimental to the rights and interest of the Plaintiff herein. 20.According to the Plaintiff, despite and/ or notice of intention to sue given, the Defendant had refused and/ or failed and/or failed and/or neglected to make good the Plaintiff's claim, hence rendering this suit necessary. The Plaintiff averred and maintained that there was no other suit pending in any Court over the same subject matter and between the same parties, neither had there been any suit involving the same. The cause of action arose in Kinango within Kwale County which was within the jurisdiction of this Honourable Court. 21.The Plaintiff prayed for Judgment to be entered against the 1st, 2nd, 3rd, 4th & 5th Defendants, jointly and/ or severally for:-a.A finding and/or a declaratory order that the suit premises, being Plot No.2 Zone4/Kinango measuring approximately 2.80 Hectares situate at Kinango within Kwale County is a property of the Plaintiff and consequently ownership documents be issued to the Plaintiff.b.An order made in the interest of the public that the subject area covering Zone 4 and other zones within the entire parcel of land whose planning was conducted in 1969 and revised in 1990 by the Ministry of lands be considered for adjudication and/or allocation and/or registration and/or procurement and/or issuance of ownership documents so that no further wrangles and/or disputes are witnessed in the area and its neighbourhood.c.A finding that the 1st Defendant is a bear Licencee on the suit premises, being Plot No. 2 Zone 4/Kinango measuring approximately 2.80 Hectares situate at Kinango within Kwale County only allowed to maintain the Hospital buildings and its equipment as per the handing over letter of 4th December,1970 which was pursuant to a request letter of 19th November, 1969.d.Permanent injunctive orders, restraining the Defendants and/or their agents and/or employees and/or servants and/or relatives or any other person(s) acting on the Defendants’ behalf from erecting any structure(s)and/or subdividing and/or alienating and/or allocating and/or registering and/or transferring the suit premises, described herein as Plot No. 2 Zone 4/Kinango measuring approximately 2.80 Hectares situate at Kinango within Kwale County, or any portion(s) thereof and/or dealing with the suit premises in any manner, whatsoever detrimental to the rights and interest of the Plaintiff herein.e.Any other relief or remedy the Court may deem fit and just in the circumstances.f.Costs of this suit. 22.The Plaintiff called their 1st witness on 17th July, 2025 wherein he testified as follows:- A. Examination in Chief of PW - 1 by Mr. Kenga Advocate. 23.PW - 1 testified and was sworn on oath in English language. He was called FATHER ANTHONY NJUGUNA MUIGAI, a Citizen of Kenya and holder of the national identity card bearing all the particulars as shown to Court during the hearing. He worked at the Mary’s Church Changamwe at the time of his testimony. He confirmed that he had authority to pleaded and/ or appear and act in this matter dated 1st July, 2025. With reference to pages 70 to 74 were witness statements for PW - 1 and PW - 2 to be adopted as the Plaintiff’s evidence. 24.PW - 1 confirmed that he had filed documents for the Plaintiff (15 documents) dated 19th March, 2024 which he produced as Plaintiff’s Exhibit 1 to 15 in that order. Further, he produced documents dated 12th July, 2025 in the Supplementary List of documents – Plaintiff Exhibit Numbers 16 and 17. 25.With reference to the Plaintiff Exhibit No. 5 (Page 92) which was a certified copy of the handing over letter dated 4th December, 1970; pursuant to the request letter dated 19th December, 1969 – Plaintiff Exhibit 5 which was given to the Government only for maintenance purposes and not ownership. The certificate of incorporation page 78 and the Diocese. With reference to page 74, the land was shown there and the purpose was for the construction of the hospital. The National Land Commission said that it did not issue a title but they initiated the process – the Development plan. The Attorney General said that they had not made a proper application. They did not request for the issuance of the title on 14th August, 2014 and 1st October, 2014 – Plaintiff Exhibit No. 11. They had never received any responses. 26.PW - 1 stated that they moved to Court as the management to be allocated the land (Page 100); they wrote a letter dated 22nd September, 2024. They did a demand letter at page 102 which got no response. PW - 1 confirmed that from Pages 105 to 111 were photographs of a mosque which was underway but they stopped after the Plaintiff got a Court Order. The mosque was now constructed behind their compound. At Pages 112 to 116 they had a convent on their compound. They needed the title and they wanted to construct a hospital without evicting them. It was a common phenomenon for the Catholic Church to own churches, hospital and schools. B. Cross examination of PW – 1 by Ms. Magdalene Advocate. 27.PW - 1 clarified that he did not know the functions of the National Land Commission; they sought for the National Land Commission to assist in granting title. C. Cross examination of PW - 1 by Mr. Kemei Advocate. 28.PW - 1 stated that the land where the hospital was; was donated/ acquired from the local through donations. The Church paid some money to the person who donated it. The person who donated the land showed them the documents of ownership which were at page 85 Plaintiff Exhibit 3. The witness had never interacted with the title deed for the land. This document on page 85 did not confer ownership to the land. With reference to page 101 being the letter dated 1st October, 2014 – Plaintiff Exhibit No. 11, the witness stated that it described the hospital and It provided for the area being at Kinango but not the title number, coordinates or boundaries of the land. The letter was submitted to the offices of DLASO Kinango. It was received by ticking but not stamped i.e. there was no official stamp to confirm that it was received. 29.With reference to pages 93, 94 and 95, the witness stated that they were Kinango Development Plans. He stated that he was not a Land Surveyor; he did not qualify to interpret these documents he got them from the office. The witness intimated that he had the original documents but could not show the court. He stated that he could see any official stamp indicating that there were certified copies of the original; no statutory forms to enable its process documents of ownership. D. Re - examination of PW - 1 by Mr. Kenga Advocate. 30.PW - 4 confirmed that with reference to pages 101 and 100 that the document was stamped having been received by the Ministry of Lands. There were times documents were sent by postage and hence not stamped. Further he testified that the DPP were made by the Kwale County Council and hence they were in their possession. The witness was not aware of the statutory forms for the location of land. Besides, even after the letters of request, they still never received any responses nor the title deeds. On being referred to pages 85 of the Letter dated 19th September, 2015, the witness told the court that it was on the donation of the land. 31.On 17th July, 2025, the Plaintiff closed his case through his Legal Counsel on record Mr. Kenga Advocate. V. The Defendants’ case 32.As indicated above, the Defendants through their counsel stated that they would not be calling any witnesses as they had been wrongly joined into the suit and there was no cause of action against them. They hence closed their cases on 17th July, 2025. VI. Submissions 19.On 17th July, 2025, immediately after the closure of the Plaintiff and Defendants’ cases, the Honorable Court directed the Plaint be canvassed through written submissions. However, by the time of penning down this Judgement, the Honourable Court was not able to access any submissions from neither the Judiciary CTS nor the ELC Registry whatsoever. 20.Pursuant to which the Honorable Court reserved a date for delivery of Judgement on its own merit – the evidence on record and notice accordingly. VII. Analysis and Determination 19.I have carefully read and analyzed all the pleadings herein, together with the oral and documentary evidence adduced in court, the written submissions, the cited authorities relied upon by the Plaintiff, and the relevant provisions of the Constitution of Kenya, 2010 and the applicable statutes. 20.It is instructive to point out that where a Defendant fails to adduce evidence in support of the Defence and fails to attend court to prosecute the case, the Plaintiff’s evidence escapes the possibility of being controverted by defence evidence. It escapes the scrutiny of cross-examination by the Defendant. It therefore stands unchallenged and uncontroverted. However, the Plaintiff does not escape the burden and standard of proof which he has to satisfy and discharge in accordance with the law in order for his claim to succeed. 21.Section 107 (1) of the Evidence Act, Cap. 80 provides that: -“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 19.Section 108 provides:“The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.” 19.And section 109 provides:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided for by law that the proof of that fact shall lie on any particular person.” 19.I make reference to the case of “Charter House Bank Limited (Under Statutory management – Versus - Frank N. Kamau [2016] eKLR” the court of appeal when discussing the burden of proof on the plaintiff in a situation where the defendant failed to adduce evidence stated that: -“we would therefore venture to suggest that before the trial court can conclude that the Plaintiff’s case is not controverted or is proved on a balance of probability by reason of the Defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence from the Defendant.…………The Plaintiff must adduce evidence, which in the absence of rebutted evidence by the Defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the Defendant has not testified.’’ 19.For the Honourable Court to arrive at a reasonable, fair and Equitable decision, it has crafted three (3) key issues for its determination. These are:-a.Whether the suit instituted by the Plaintiff through the filed Plaint against the Defendants has any merit whatsoever.b.Whether the Plaintiffs herein are entitled to the reliefs soughtc.Who should bear the costs of the suit. ISSUE No. a). Whether the suit instituted by the Plaintiff through the filed Plaint against the Defendants has any merit whatsoever. 19.Under this sub‑title, the Honourable Court shall examine the first framed issue, namely whether the suit instituted by the Plaintiff through the filed Plaint against the Defendants has any merit whatsoever. 20.The Plaintiff has placed before this Court documentary evidence including the letter dated 4th December, 1970 handing over hospital buildings to the Government for maintenance only, the Government’s request letter of 19th November, 1969, the Part Development Plan (PDP) of 1969 revised in the year 1990, and the letter of 27th August, 1982 from the Sisters of St. Joseph Community affirming ownership. These documents demonstrate a consistent chain of possession and recognition of the Plaintiff’s rights over Plot No. 2 Zone 4/Kinango. The Court notes that the PDP specifically earmarked Plot No. 2 for hospital use, while allocating a separate parcel for a mosque, thereby reinforcing the Plaintiff’s assertion that the Defendants’ current actions are inconsistent with the planning framework. 21.The Defendants have not produced any title deed, allotment letter, or other proprietary documentation to controvert the Plaintiff’s claim. Their occupation of the hospital is explained by the Plaintiff’s licence for maintenance purposes, which does not confer ownership. In the absence of rebuttal evidence, the Plaintiff’s case stands unchallenged, subject to the burden of proof under the provision of Sections 107–109 of the Evidence Act, Cap 80 Laws of Kenya. The Court reiterates that mere occupation or management of a facility does not translate into proprietary rights unless supported by lawful transfer or registration. 22.What are the consequences of a party failing to adduce evidence? In the case of “Motex Knitwear Limited – Versus - Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002”; Justice Lesiit, citing the case of “Autar Singh Bahra and Another – Versus - Raju Govindji, HCCC No. 548 of 1998” stated:“Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail”. 19.Again in the case of “Trust Bank Limited – Versus - Paramount Universal Bank Limited and 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001” the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the Plaintiff against them is uncontroverted and unchallenged. In the case of:- “Karuru Munyororo – Versus - Joseph Ndumia Murage and Another Nyeri HCCC No. 95 of 1988”, Makhandia, J. held:-“The Plaintiff proved on a balance of probability that she was entitled to the orders sought in the Plaint and in the absence of the Defendants and or their Counsel to cross - examine her on the evidence, the Plaintiff’s evidence remained unchallenged and uncontroverted. It was thus credible and it is the kind of evidence that a court of law should be able to act upon”. 19.Similarly, in the case of:- “Charterhouse Bank Limited (Under Statutory Management) – Versus - Frank N. Kamau [2016] eKLR”, the Court of Appeal emphasized that even where the Defendant fails to call evidence, the Plaintiff must still discharge the burden of proof by adducing credible and believable evidence which, in the absence of rebuttal, convinces the Court on a balance of probabilities. The Plaintiff herein has satisfied this requirement by producing contemporaneous government correspondence and planning records that corroborate its claim. 19.As a matter of fact, land in Kenya is very sensitive. Land is a source of Livelihood. The right to own and acquire property in Kenya is a Constitutional right to be enjoyed by all persons. It is hinged on the provision of Article 40 of the Constitution of Kenya, 2010 which provides as follows:-(1)Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—(a)of any description; and(b)in any part of Kenya.(2)Parliament shall not enact a law that permits the State or any person--(a)to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or(b)to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).(3)The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation-(a)results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or(b)is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that(i)requires prompt payment in full, of just compensation to the person; and(ii)allows any person who has an interest in, or right over, that property a right of access to a court of law.…” 19.The Land Registration Act, No. 3 of 2012 is the principal statute governing land registration and the rights of registered proprietors in Kenya. Further, a title holder enjoys statutory protection by dint of Section 26 (1) (b) of the Land Registration Act, which provides: -The certificate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer … 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 … and the title of that proprietor shall not be subject to challenge, except –(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 19.It is evident that the rights of a registered owner of property are clearly set out under the provision of Sections 24, 25 and 26 of the Land Registration Act 2012, which provide as follows:-24.“Subject to this Act(a)The registration of a person as proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.” 19.Further Section 25(1) provides that for such a registered owner, his/her rights are indefeasible and are held free from all other interests and claims and that the rights can only be defeated in the manner provided under the Act. 20.Though the Plaintiff has not yet been issued with a formal title deed, its equitable ownership is supported by long‑standing possession, development, and recognition by government authorities. The Court is guided by precedents such as “Muthuita – Versus - Muthuita [1982] KLR 42”, which held that possession and development of land, coupled with recognition by authorities, can establish equitable ownership even absent formal registration. 21.The Court therefore finds that the suit instituted by the Plaintiff is meritorious, well founded and with strong basis. I discern that the Plaintiff has demonstrated a credible claim to ownership of Plot No. 2 Zone 4/Kinango, and the Defendants have failed to controvert or displace that claim. The Plaintiff’s case is not only supported by documentary evidence but also by constitutional and statutory provisions safeguarding property rights. ISSUE No. B: Whether the Plaintiffs herein are entitled to the reliefs sought. 19.Under this sub‑title, the Honourable Court shall examine the second framed issue, namely whether the Plaintiff is entitled to the reliefs sought.The Plaintiff has prayed for declaratory orders, injunctive relief, and directions to the Ministry of Lands and the National Land Commission to adjudicate and register Zone 4 parcels in accordance with the Part Development Plan of 1969 (revised in 1990). The Court must therefore determine whether the Plaintiff has established sufficient grounds to warrant the grant of these remedies. 20.The Plaintiff’s evidence demonstrates continuous possession and beneficial ownership of Plot No. 2 Zone 4/Kinango since the 1960s. The construction of the Kinango Sub‑County Hospital in 1969, the subsequent handover of the hospital buildings for maintenance only in 1970, and the correspondence of 1982 from the Sisters of St. Joseph Community all confirm that the Plaintiff never relinquished ownership of the land. The PDP further corroborates that Plot No. 2 was designated for hospital use, while a separate parcel was allocated for a mosque. This chain of evidence establishes a clear historical and equitable interest in the suit premises, which the Court cannot ignore. 21.The Defendants have not produced any documentary evidence of ownership. Their claim rests solely on occupation and management of the hospital, which the Court has already found to be under licence. In the case of:- “Republic – Versus - National Land Commission & Another ex parte Holistic Development Initiative [2016] eKLR”, the Court held that the Commission cannot allocate land already lawfully held by another entity. These authorities support the Plaintiff’s position and demonstrate that the Defendants’ actions amount to unlawful interference with proprietary rights. 22.The Plaintiff’s prayer for declaratory orders is well‑founded under the provision of Article 40 of the Constitution of Kenya, 2010, which guarantees the right to property. The Plaintiff is entitled to recognition of its ownership and protection from unlawful interference. The request for injunctive relief is equally justified under the provision of Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010, which empower the Court to restrain parties from committing acts of trespass or waste pending determination of ownership. The Court is persuaded that without injunctive relief, the Plaintiff risks irreparable harm through dispossession and unlawful construction on its land. 23.The Plaintiff has also sought directions for adjudication and registration of Zone 4 parcels. This prayer is consistent with the mandate of the Ministry of Lands and the National Land Commission under the provision of Article 67 of the Constitution and Sections 5 and 6 of the Land Act, 2012, which require orderly adjudication and registration to prevent disputes. The Court finds merit in granting such an order in the public interest, as it will ensure clarity of ownership and forestall future conflicts among institutions within Zone 4. The Court is further guided by the principle enunciated in the case of:- “Kenya Anti‑Corruption Commission – Versus - Online Suppliers Limited & Others [2018] eKLR”, where it was held that public authorities cannot appropriate private land without due process or compensation. The Defendants’ attempt to facilitate construction of a mosque on land already allocated to the Plaintiff is a clear violation of this principle. 24.In light of the foregoing, the Court is satisfied that the Plaintiff has discharged the burden of proof and is entitled to the reliefs sought. The Plaintiff has demonstrated ownership, the Defendants have failed to controvert the claim, and the construction of a mosque on the suit premises is unlawful. Be that as it may, I strongly hold that the reliefs sought are not only merited, founded but necessary to preserve the sanctity of property rights and uphold the rule of law. ISSUE No. C: Who should bear the costs of the suit 19.It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of any legal process or proceedings in any litigation. The Black Law Dictionary defines cost to means:-“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. 19.Under Section 27(1) of the Civil Procedure Act, Cap. 21 Laws of Kenya, costs of any action, cause, or matter shall follow the event unless the Court, for good reason, orders otherwise. The principle is that the successful party should not be burdened with expenses incurred in vindicating its rights. 20.Section 27 (1) provides as follows;-“(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 19.Additionally, the provision provides for ‘costs of and incidental to all suit or application’ which expression includes not only costs of suit but also costs of application in suit as described by Mulla (supra) at 536. Furthermore, Rtd. Justice Richard Kuloba in his book Judicial Hints on Civil Procedure, 2nd Edition, 2005 at 95 notes that the words ‘the event’ means the result of all the proceedings incidental to the litigation. 20.Accordingly, the event means the result of the entire litigation. The order as to costs as provided for under Section 27 In the present case, the Plaintiff has succeeded in establishing ownership of Plot No. 2 Zone 4/Kinango and has demonstrated that the Defendants unlawfully interfered with its proprietary rights. The Defendants failed to controvert the Plaintiff’s evidence and persisted in actions that necessitated litigation. The Plaintiff was therefore compelled to approach this Honourable Court to protect its rights. 21.The Court finds no special circumstances to depart from the general rule. The Defendants, jointly and severally, shall bear the costs of this suit. This is consistent with the principle that costs follow the event and ensures that the Plaintiff is indemnified for the expenses incurred in vindicating its rights. VIII. Conclusion and Disposition 19.In the end, having undertaken an in‑depth analysis of the framed issues herein, the Honourable Court, on the preponderance of probabilities, finds that the Plaintiff has successfully established its case against the Defendants. The Plaintiff has demonstrated continuous, lawful, and beneficial ownership of Plot No. 2 Zone 4/Kinango measuring approximately 2.80 hectares, situate within Kwale County. The Plaintiff has further shown that the Defendants are mere licensees permitted only to maintain the hospital buildings and equipment, and that the construction of a mosque on the suit premises is unlawful, unprocedural, and without colour of right. Accordingly, and for avoidance of doubt, this Honourable Court makes the following orders for disposition of the suit:-a.That Judgment be and is hereby entered in favour of the Plaintiff, The Catholic Archdiocese of Mombasa (Registered Trustees), as per the Plaint dated 19th March 2024, in its entirety.b.That a declaration be and is hereby issued that Plot No. 2 Zone 4/Kinango measuring approximately 2.80 hectares is the property of the Plaintiff, and ownership documents shall forthwith be issued in its favour.c.That a finding be and is hereby issued that the 1st Defendant, Kinango Sub‑County Hospital, is a bare licensee on the suit premises, permitted only to maintain the hospital buildings and equipment pursuant to the handover letter of 4th December 1970.d.That a permanent injunction be and is hereby issued restraining the Defendants, their agents, servants, employees, relatives, or any persons acting under their instructions from erecting structures, sub - dividing, alienating, allocating, registering, transferring, or otherwise dealing with Plot No. 2 Zone 4/Kinango in any manner detrimental to the Plaintiff’s rights.e.That the Ministry of Lands and the National Land Commission shall adjudicate and register Zone 4 parcels in accordance with the Part Development Plan of 1969 (revised in 1990), and issue ownership documents to the Plaintiff to forestall future disputes.WINI 90f.That the costs of this suit shall be borne jointly and severally by the 1st, 2nd, 3rd, 4th & 5th Defendants, payable to the Plaintiff, together with interest at court rates from the date of Judgment until payment in full. It is so ordered accordingly. JUDGMENT DELIVERED THROUGH MICRO – SOFT TEAMS VIRTUAL MEANS SIGNED AND DATED AT KWALE THIS…..15TH …DAY OF ……JUNE……..2026.……………………………..HON. MR. JUSTICE L. L. NAIKUNI,ENVIRONMENT AND LAND COURTATKWALEJudgement delivered in the presence of:a. Mr. Daniel Disii, the Court Assistant.b. M/s. Chengo Advocate holding brief for Mr. Kenga Advocate for the Plaintiff.c. Mr. Kemei Advocate for the 4th & 5th Defendants.d. No appearance for the 1st , the 2nd & 3rd Defendants.