Bos Shipping (East Africa) Limited v Mohamed & 9 others (Environment & Land Case 89 of 2021) [2025] KEELC 4211 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled land titles built on a magistrates' court adverse possession judgment, awarding the owner over Kshs. 8.8 million.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who is the legal and beneficial owner of the original parcel 890/I/MN, which was later subdivided into section MN/1/22672 & 22673
- 2.Whether 4th & 5th counterclaim has merit
- 3.Whether the plaintiff is entitled to any of the orders sought
- 4.Who bears the costs in the main suit and counterclaim
Key legal issues
#Ownership of original parcel 890/I/MN and validity of subsequent titles
Title belongs to the plaintiff; all subdivisions, transfers and titles founded on the impugned adverse possession judgment are null and void ab initio
The adverse possession judgment in Mombasa CMELC No. 64 of 2019 was set aside by the trial magistrate for want of pecuniary jurisdiction on 26th April 2021 and that ruling was never challenged. The Court of Appeal in Sugawara v Kiruti has since confirmed that magistrates' courts lack jurisdiction over adverse possession claims. Consequently the provisional certificate, subdivision and transfers to the 2nd defendant rest on a nullity and must be cancelled, ownership reverting to the plaintiff.
Validity of the consent order in Mombasa CMELC No. 154 of 2019
The consent became null and void ab initio because it was founded on the impugned judgment
The consent filed on 7th October 2019 and adopted on 16th January 2020 rested entirely on the judgment of 28th June 2019 in Mombasa CMELC No. 64 of 2019, which the honourable trial magistrate struck out on 26th April 2021 for want of jurisdiction. A consent built on a nullity cannot stand; no further analysis was required.
Liability of the 4th and 5th defendants (advocates) for the unlawful eviction
They are liable for the plaintiff's loss for acting negligently on instructions from the 2nd defendant without due diligence
As officers of the court, the advocates should have been more prudent. They were not on record for any party, executed an order over a year old without a notice to show cause, acted for a person not a party to the suit, and their actions occurred after the underlying judgment had been set aside. Their counterclaim was consequently dismissed with costs.
Liability of the 6th defendant (police)
Not liable; the police acted lawfully in providing security under an order verified as authentic
DW1's role was limited to ensuring security during the eviction. Police are mandated by law to provide security for life and property. Asking them to investigate matters already decided by a court, or to question orders verified by the court's Executive Officer, would exceed their operational, statutory and constitutional mandate.
Damages for trespass and loss of rental income
Plaintiff awarded Kshs.2,000,000 for trespass and Kshs.6,875,000 for lost rental income against the 1st to 5th defendants
Although the specific trespass losses were not proved by documentary evidence, the entry onto the suit property without the plaintiff's authority or a lawful order established entitlement to damages, assessed at Kshs.2,000,000. Loss of rental income was proved by the tenancy agreement (AMB 2) at Kshs.125,000 per month for 55 months, totalling Kshs.6,875,000.
Legal principles established
#- Magistrates' courts do not have jurisdiction to determine claims of adverse possession; judgments arising from such claims in magistrates' courts are null and void and incapable of enforcement
- Actions founded on a judgment issued without jurisdiction are null and void ab initio
- A permanent injunction is granted where the plaintiff establishes an existing right and its violation by the defendant
Court orders
#- 1.The 4th & 5th defendants' counterclaim is dismissed with costs
- 2.Judgment entered for the plaintiff in terms of prayers (1) to (13) of the plaint dated 12th May 2021, including declarations that the judgment of 28th June 2019 in Mombasa CMELC No. 64 of 2019, the ensuing decree, the consent order in Mombasa CMELC No. 154 of 2019 and all actions taken pursuant thereto are illegal, null and void
- 3.The Land Registrar (8th defendant) to cancel/revoke the 1st and 2nd defendants' titles for Subdivision Numbers 22672/I/MN and 22673/I/MN, remove the records from the register and reinstate the plaintiff's title for subdivision number 890 of Section I Mainland North
- 4.Permanent injunction restraining the defendants from demolishing, selling, transferring, leasing, charging, trespassing on or taking possession of the suit property
- 5.Mandatory injunction reinstating the plaintiff to the suit property
- 6.The plaintiff is awarded Kshs.2,000,000/- as damages for trespass against the 1st to 5th defendants
- 7.The plaintiff is awarded Kshs.6,875,000 being loss of rental income against the 1st to 5th defendants
- 8.The 1st to 5th defendants to bear the plaintiff's costs in the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction under Article 162(2) of the Constitution over land disputes
Relief refused
#Damages for trespass against the 2nd, 3rd, 6th and 7th defendants as pleaded (prayer 16)
The amount claimed was not established; damages awarded instead only against the 1st to 5th defendants, with the 6th defendant found to have acted lawfully
Claim against the 6th defendant (police)
Police role was limited to security under an order verified as authentic; requiring more would exceed their mandate
Claim against the 10th defendant
Not proved
Costs
The 1st to 5th defendants to bear the plaintiff's costs in the suit; the 4th and 5th defendants' counterclaim dismissed with costs.
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.
Therefore, any judgments and decrees purporting to arise out of claims of adverse possession in magistrates’ courts are null and void ab initio, and are incapable of being enforced.
Accordingly, there is no doubt that all the actions that resulted in the issuance of provisional certificate of title over the suit property, transfer to 1st defendant’s name, and subsequently to the 2nd defendant, including the subdivision thereof into 22672/I/MN and 22673/I/MN was based on non-existent court order and therefore null and void ab initio.
The plaintifi is also awarded Kshs.2,000.000/- as damages for trespass against the 1st to 5th defendants.
The plaintifi is awarded Kshs.6,875,000 being loss of rental income against the 1st to 5th defendants.
The 1st to 5th defendants to bear the plaintifi’s costs in the suit.
To be granted a permanent injunction, a plaintifi must establish the existence of a right and violation of that right by the defendant.
Issues in the judgment
#The judgment inconsistently describes the ruling of 26th April 2021 by Hon. C.N Ndegwa as having 'struck out the suit' while the plaintiff's relief sought a declaration setting aside the judgment itself; the court nonetheless declares the underlying judgment null and void without an explicit set-aside order having been made
Typographical error in the order on damages for trespass renders the figure as 'Kshs.2,000.000/-'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bos Shipping (East Africa) Limited v Mohamed & 9 others (Environment & Land Case 89 of 2021) [2025] KEELC 4211 (KLR)", Case Analysis (2025). ELC Case of 2021 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4211/eng@2025-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.