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ELCAllowedNot stated in the judgment

Bajaber Limited v Ramadhan & another (Environment and Land Case 60 of 2019) [2025] KEELC 5241 (KLR)

Environment and Land Court
11 July 2025
8,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed a registered title beats informal occupation: Bajaber Ltd won, and the occupants must demolish their structures and pay costs.

What this practically means

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Executive summary

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Bajaber Ltd, the registered proprietor of L.R. No. MN/III/1883 (entry No. CR. 21996/2), sued three individuals for trespass, seeking mandatory injunctions to remove and demolish structures and to restrain further trespass, plus costs. The defendants admitted the plaintiff's ownership but claimed they had occupied the land openly for over twelve years, asserting adverse possession, and raised preliminary objections on res judicata and territorial jurisdiction, citing Malindi ELC No. 232 of 2014 (O.S.). The plaintiff called four witnesses, including a surveyor whose satellite imagery showed vacant land in January 2017 followed by sub-divisions and structures from October 2017 onwards. The defendants' sole witness conceded they held no title to the plots they occupied and were unaware of any decision in the earlier ELC suit, which had been dismissed for want of prosecution. The court framed three issues: ownership, entitlement to the orders sought, and costs. Applying Sections 24, 25 and 26 of the Land Registration Act, it held the plaintiff's title deed prima facie conclusive evidence of absolute ownership and found the evidential burden shifted to the defendants, whose adverse possession claim was unsupported and unfortified. Following Moya Drift Farm v Theuri and M'Mukanya v M'Mbijiwe, the court held that a registered owner's trespass claim does not depend on proof of physical possession, and found the defendants had trespassed. Judgment was entered in favour of the plaintiff in its entirety: mandatory injunctions to remove and demolish the structures (per Section 152E of the Land Act) and to restrain further trespass, interference, sale or sub-division were issued, and the defendants were ordered to bear the plaintiff's costs jointly and severally. Judgment delivered virtually by L.L. Naikuni, J, at Kwale on 11 July 2025.

Questions the Court framed

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

  1. 1.Whether the Plaintiff has been able to establish its case - Who is the lawful owner of the suit property known as L.R. No. MN/III/1883 registered as entry No. CR. 21996/2
  2. 2.Whether the Plaintiff is entitled to the orders sought in the Plaint
  3. 3.Who bears the costs of the suit?

Key legal issues

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01

Whether the plaintiff proved ownership of L.R. No. MN/III/1883

Holding

Yes - the plaintiff's title deed raised a rebuttable presumption that it is the absolute and legal owner, and the burden shifted to the defendants, who failed to discharge it.

Reasoning

The court invoked Sections 24, 25 and 26 of the Land Registration Act, treating the certificate of title as prima facie conclusive evidence of absolute ownership. The defendants admitted plaintiff's ownership, claiming only 12 years' occupation. The evidential burden under Sections 107, 108 and 109 of the Evidence Act shifted to the defendants, whose evidence the court found unfortified, unfounded and without any basis, so the plaintiff proved ownership on a preponderance of probabilities.

p. 11
02

Whether the defendants acquired title by adverse possession

Holding

No - the defendants produced no title or evidence supporting prescriptive rights, and their claim, raised only in defence, was unsupported.

Reasoning

Adverse possession under Sections 7, 13, 17 and 38 of the Limitation of Actions Act requires open, notorious, continuous occupation without consent for 12 uninterrupted years and can only be actualized through a court action. DW-1 admitted they had no permission and no title deed to the plots they claimed to occupy, were not aware of any decision in ELC 232 of 2014, and the prior suit was dismissed for want of prosecution, not on merit.

p. 11
03

Whether the defendants trespassed on the suit property

Holding

Yes - the plaintiff proved on a preponderance of probabilities that the defendants entered and erected structures without colour of right or justifiable cause.

Reasoning

Drawing on the Trespass Act, Section 152A of the Land Act, Clerk & Lindsell and Black's Law Dictionary, the court held trespass to be an unjustifiable intrusion on land in possession of another, actionable per se. As registered owner, the plaintiff's title carried legal possession (following Moya Drift Farm v Theuri). The defendants did not deny their dwelling houses stood on the suit property, confirming the trespass.

p. 13
04

Whether the plaintiff was entitled to the mandatory injunctions sought

Holding

Yes - having proved absolute and legal ownership, the plaintiff was granted prayers 1 and 2 of the plaint.

Reasoning

The court cited the higher threshold for mandatory injunctions (Malier Unissa Karim v Edward Oluoch Odumbe, adopting Kenya Breweries v Washington Okeyo and Halsbury's Laws) but, since the case was fully heard and ownership and trespass were proved, the plaintiff was entitled to protection of its rights over the suit property and both mandatory injunctions were issued, with removal of structures per Section 152E of the Land Act.

p. 14

Legal principles established

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  • Registration of a person as proprietor vests absolute ownership of the land in that person (Land Registration Act, s.24).
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme.
  • Once a person proves bona fide ownership of land, possession is irrelevant to trespass; the proprietor's title carries legal possession.
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, and the successful party is typically entitled to costs.

Court orders

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  1. 1.Judgment entered in favour of the Plaintiff in terms of the Plaint dated 3rd April 2019 in its entirety
  2. 2.Mandatory injunction compelling the Defendants to remove and/or demolish structures on L.R. No. MN/III/1883 (CR. 21996/2) in accordance with Section 152E of the Land Act, No. 6 of 2012
  3. 3.Mandatory injunction restraining the Defendants from trespassing, erecting structures, or interfering with, selling, sub-dividing and/or dealing with L.R. No. MN/III/1883 (CR. 21996/2)
  4. 4.Costs of the suit to be borne by the Defendants jointly and severally

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction over land matters (Article 162(2)(b) of the Constitution discussed); first-instance trespass suit on land title and possession

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.

That Judgment be and is hereby entered in favour of the Plaintifi in terms of the Plaint 3rd April, 2019 filed on the same day by Bajaber Limited the Plaintifi herein in its entirety.
p. 15Final orders - judgment for plaintiff
That this Honourable Court do and hereby issues an order of mandatory injunction compelling the Defendants whether by themselves, their agents, servants, employees or representatives to remove and/ or demolish structures be it permanent or temporal in any nature constructed on all that parcel of land known as L.R. No. MN/III/1883 registered as entry No. CR. 21996/2
p. 15Mandatory injunction to remove structures
That the Plaintifi shall have the costs of the suit as per the Plaint dated 3rd April, 2019 to be borne by the Defendants jointly and severally.
p. 15Costs order
Ultimately, having caused such an in-depth analysis to the framed issues herein, the Honourable Court on the Preponderance of Probabilities and the balance of convenience finds that the Plaintifi has established its case against the Defendants.
p. 15Conclusion on proof of the case
the title of the 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 b. Where the Certificate of Title has been acquired illegally un-procedurally or through a corrupt scheme.
p. 8Indefeasibility of title under Section 26 of the Land Registration Act
The way to adverse possession is paved when a person takes possession of land of another without force or stealth or licence/consent of the title holder; openly or publicly asserting rights over it; and the title holder omits or neglects to take action against the adverse possesser - in assertion of his title - for an uninterrupted period of twelve (12) years.
p. 10Ingredients of adverse possession

Issues in the judgment

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material

The suit property is inconsistently identified: the plaint and evidence describe it as L.R. No. MN/III/1883, but the heading to the first framed issue names a different parcel.

minor

The case number of the suit is not stated anywhere in the judgment; the judgment is identified only by reference to the Plaint dated 3rd April 2019.

minor

The defendants' counsel is referred to by two different names - Ms. Nyawera in submissions/opening and Mr. Mohamed in cross-examination of plaintiff's witnesses - while delivery notes record Mr. Malombo as defendants' advocate.

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, "Bajaber Limited v Ramadhan & another (Environment and Land Case 60 of 2019) [2025] KEELC 5241 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5241/eng@2025-07-11

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