Haji & another v Pamba & 4 others (Environment & Land Case 6 of 2023) [2025] KEELC 3321 (KLR)
The bottom line
#A Kwale court confirmed the landowners' title to plot 1664 but refused damages for trespass, letting a mosque and school remain while barring further construction without consent.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was trespass by the Defendants in plot Kwale/Ngombeni/1664 and if an Order of Permanent Injunction should issue
Key legal issues
#Whether the plaintiffs, as registered proprietors of Kwale/Ngombeni/1664, proved trespass by the defendants
Ownership was proved but trespass was not: the 1st defendant entered reasonably believing the land was waqf, and the 2nd to 4th defendants were not particularised or linked to any act of trespass
The plaintiffs' title was uncontroverted and prima facie under section 26(1) of the Land Registration Act. However, a survey report showed the mosque and madrasa, which pre-existed the 1st defendant's 2007 arrival, encroached on plot 1664; the 1st defendant only renovated existing buildings and reasonably believed the land was a waqf on plot 38 carved from plot 1663. The claim against the 2nd defendant rested on an unproved alleged lease, and no particulars were pleaded against the 3rd and 4th defendants.
What relief follows where structures encroach on the plaintiffs' land but no trespass is proved
A declaration of ownership plus an injunction against further construction without consent, with damages refused and the parties left to agree terms of engagement with the academy
Relying on Nancy Makokha Baraza, the court exercised wide remedial powers mindful not to disrupt learning. The madrasa may remain, but the plaintiffs' proved ownership entitles them to be free of further constructions without their consent. Orders for excision of titles could not issue absent a counterclaim.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud
- Trespass requires entry into another's land without the owner's permission or without reasonable excuse
- A party is bound by its pleadings; allegations not particularised cannot sustain a claim
- Courts have wide and flexible powers to craft appropriate remedies as the situation demands
Court orders
#- 1.A declaration that the plaintiffs are the lawful and absolute owners of the parcel of land Kwale/Ngo'mbeni/1664
- 2.An order of permanent injunction against the 1st defendant and its servants or agents from making any further construction on Kwale/Ngo'mbeni/1664 without the consent of the plaintiffs
- 3.Prayers for general damages declined, the 1st and 2nd defendants having been found not to be trespassers
- 4.Plaintiffs at liberty to engage Daaru Tawheed Islamiyah Academy on acceptable terms of engagement
- 5.The suit against the 2nd, 3rd, 4th and 5th defendants struck out
- 6.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over title to and trespass on land (not expressly cited in the judgment)
Relief refused
#General damages for trespass
No trespass proved against the 1st and 2nd defendants
Permanent injunction in the wide terms sought (restraining entry and dealing with the property)
Injunction limited only to further construction without consent; no trespass found
Curving out the mosque, school, madrasa and staff quarters with their own titles
No counterclaim was filed and prosecuted
Costs
Each party shall bear its own costs, the dispute touching on facilities that benefit the larger community around the Denyenye area
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 be and is hereby issued that the plaintifis are the lawful and absolute owners of the parcels of land Kwale/Ngo’mbeni/1664
an order of permanent injunction shall issue against the 1st defendant and its servants or agents from making any further construction on Kwale/Ngo’mbeni/1664 without the consent of the plaintifis.
The Plaintifis have failed to prove trespass against the Defendants on a balance of probabilities
The suit against the 2nd 3rd 4th and 5th Defendants is struck out.
the court orders that each party shall bear its own costs.
such orders cannot issue in the absence of a counterclaim duly prosecuted and proved.
Issues in the judgment
#Injunction contradiction: the court declines to find the 1st defendant a trespasser yet issues a permanent injunction against him; the order itself acknowledges the finding of no trespass
The survey report records the facility in plot 38, but the letter dated 25/01/83 is described as allocating plot 38 while other evidence places the waqf donation in 1982
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ombaba v Kimanda (Environment and Land Appeal E024 of 2025) [2026] KEELC 2434 (KLR)[2026] KEELC 2434 (KLR)29 Apr 2026
Cite this brief
#Cite this brief
Caselaw, "Haji & another v Pamba & 4 others (Environment & Land Case 6 of 2023) [2025] KEELC 3321 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3321/eng@2025-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.