Rama Hamisi Bindu v Hassan Kutembelea [2019] KEELC 137 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a registered title holder wins against trespassers, who must demolish their structures and vacate within 30 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff has established that he is the owner of the suit property
- 2.Whether the plaintiff is entitled to the prayers sought (vacant possession, demolition of illegal structures, injunction and costs)
Key legal issues
#Ownership of the suit property
The plaintiff, as registered proprietor holding an unchallenged title, is the absolute and indefeasible owner of the suit property
The plaintiff produced the title deed, transfer and sale agreement dated 15th December 2015, and the original owner testified confirming the sale and that the plot was vacant at the time. The defendant did not enter appearance or defend, so the title was not challenged on fraud, misrepresentation or illegal acquisition. The court applied sections 26(1) and 24(a) of the Land Registration Act and held the plaintiff to be the absolute proprietor entitled to exclusive possession.
Trespass
The defendant's forcible entry and construction of a semi-permanent house on the plaintiff's land without permission amounted to trespass, entitling the plaintiff to the prayers sought
The plaintiff's unchallenged evidence showed the defendant entered a portion of the suit property in August 2016 without permission and built a semi-permanent house, hindering the plaintiff's intended income-generating business. A complaint to the National Land Commission led to an order for vacation which the defendant ignored. As absolute proprietor, the plaintiff is entitled to exclusive possession; the defendant is a trespasser and judgment was entered as prayed on a balance of probabilities.
Legal principles established
#- A certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner, challengeable only on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
- Registration as proprietor vests absolute ownership with exclusive rights of use, possession and enjoyment
Court orders
#- 1.A declaration that the plaintiff is the legal owner and is entitled to the suit property known as BUBUBU EXTENSIONS SETTLEMENT SCHEME/26
- 2.The defendant and/or his agents, servants or other persons claiming through him ordered to demolish and/or remove all illegal structures standing on the suit property and to vacate and deliver vacant possession to the plaintiff within 30 days from the date of service of the decree
- 3.In default, the plaintiff entitled to an order of eviction for forcible removal of the defendant and demolition of the illegal structures under the supervision of an authorized police officer from the nearest police station
- 4.A permanent injunction restraining the defendant whether by himself, his servants, agent or otherwise howsoever from encroaching, trespassing, remaining on, taking possession, or continuing in occupation of the suit property
- 5.The plaintiff shall have costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (trespass and ownership of Plot No. Bububu Extension Settlement Scheme/26)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A declaration that the plaintiff is the legal owner and is entitled to the suit property known as BUBUBU EXTENSIONS SETTLEMENT SCHEME/26.
The defendant and/or his agents, servants or other persons claiming through him be and is hereby ordered to demolish and/or remove all illegal structures standing on the suit property and to vacate and deliver vacant possession to the plaintiff within 30 days from the date of service of the decree herein upon him.
A permanent injunction restraining the defendant whether by himself, his servants, agent or otherwise howsoever from encroaching, trespassing, remaining on, taking possession, or continuing in occupation of the suit property.
The certificate of title issued by the Registrar upon registration or to a purchaser of land upon 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 thereof
Accordingly, I do find that the plaintiff has proved his case on a balance of probabilities.
Issues in the judgment
#The judgment does not disclose the defendant's name or the suit/case number anywhere in the text, though the caption of the case would ordinarily carry them
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rama Hamisi Bindu v Hassan Kutembelea [2019] KEELC 137 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/137/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.