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Court of AppealDismissedCivil Appeal No. 114 of 2018

Abdalla Mohamed Abdalla v County Government of Mombasa [2019] KECA 870 (KLR)

Court of Appeal
7 March 2019
2,040 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled that a landowner cannot force a county government to buy his land, and courts won't order removal of improvements that benefit him.

What this practically means

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Executive summary

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The appellant, undisputed registered owner of six plots in Kingorani, Mombasa, valued at Kshs. 56,000,000, sued the County Government of Mombasa after it cleared structures and paved a portion of his property with cabro blocks, claiming trespass and seeking restoration of the land or, in the alternative, compulsory acquisition at Kshs. 56,000,000. The Environment and Land Court (Yano, J.) affirmed his title, declared the county a trespasser, found no structures had been demolished, and dismissed the suit, declining restoration and compulsory acquisition, with each party bearing its own costs. On appeal, the Court of Appeal (Visram, Karanja and Kiage, JJ.A) framed two issues: whether the trespasser ought to have been ordered to remove the cabro, and whether the respondent could be ordered to compulsorily acquire part of the appellant's property. Re-appraising the evidence as required on a first appeal, the Court held there was nothing to remove - the paved access road existed before the cabro and its improvement caused no demonstrated prejudice or loss of value - and that compulsory acquisition is a process initiated by the Government or County Government for public use, which a court cannot compel against the acquiring authority's will, there being no precedent for such an order. The appeal was dismissed with no order as to costs. The decision binds subordinate courts and those of coordinate jurisdiction on these propositions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent, having been found to be a trespasser on the property, ought to have been ordered to remove the cabro from the access road
  2. 2.Whether the respondent can be ordered to compulsorily acquire part of the appellant's property against its will

Key legal issues

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01

Whether a finding of trespass obliges the trespasser to remove improvements made on the land

Holding

No removal order was warranted because the paving constituted an improvement over a pre-existing access road, the property was not taken away, and no prejudice or diminution in value was shown

Reasoning

The Court noted there was no cross-appeal against the trespass finding, but held that trespass did not automatically demand removal. The access road existed before the cabro was laid and was the only way the appellant accessed his other properties. The property had not been deprived under Article 40, no dissipation of value was proved, and the trial Judge's view that removal would be superfluous was affirmed.

p. 3
02

Whether a court can order a county government to compulsorily acquire private property against its will

Holding

No. Compulsory acquisition is a State-initiated process; no precedent or law supports compelling an unwilling acquiring authority

Reasoning

The Court held the law on compulsory acquisition is clear: the Government or County Government determines what property it needs for public use and initiates the process. Counsel cited no law supporting the converse proposition of forced acquisition, and the Court found the case to be one for which it had no precedent, affirming the trial court's refusal to compel acquisition.

p. 3

Legal principles established

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  • A first appellate court must re-consider, re-appraise and re-analyse the evidence and reach its own independent conclusion while deferring to trial court findings of fact absent good reason to interfere.
  • The decision whether to compulsorily acquire property for public use rests with the Government or County Government; a property owner cannot obtain an order compelling the State to acquire his property.

Court orders

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  1. 1.Appeal dismissed with no order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Mombasa
E.L.C. No. 285 of 2015
Jurisdiction invoked
First appellate jurisdiction under Article 164 of the Constitution of Kenya 2010 (appeal from the Environment and Land Court); not expressly stated in the judgment

Relief refused

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Order for removal of the cabro blocks and restoration of the access road to its former state

Nothing for the respondent to remove; the paving was an improvement of an access road that existed before, and the appellant suffered no demonstrated prejudice

p. 3

Order compelling the respondent to pay Kshs. 56,000,000 and compulsorily acquire the suit properties

Compulsory acquisition is initiated by the Government/County Government for public use; a court cannot compel an unwilling acquiring authority, and no law was cited in support

p. 3

Costs

Appeal dismissed with no order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We find no reason whatsoever to interfere with the decision of the trial court. We find this appeal devoid of merit and dismiss it with no order as to costs.
p. 3Disposition - appeal dismissed, no order as to costs
This is a peculiar case for which we find no precedent.
p. 3Compulsory acquisition cannot be compelled at the instance of a property owner
This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.
p. 2Duty of a first appellate court
The appellant should sit back and enjoy the improvements made on his access road instead of fighting to have it reverted to its former dusty dilapidated state.
p. 3Removal of trespasser's improvements refused

Issues in the judgment

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minor

The judgment cites 'Article 40 (iii)' of the Constitution of Kenya 2010; this appears to be a misprint (the quoted text corresponds to Article 40(1)).

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abdalla Mohamed Abdalla v County Government of Mombasa [2019] KECA 870 (KLR)", Case Analysis (2019). Civil Appeal No. 114 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/870/eng@2019-03-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.