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ELCPartially AllowedNot stated in the judgment (Mombasa ELC)

Said Bin Seif Properties Limited v Savani & 9 others (Environment and Land Case 148 of 2018) [2025] KEELC 7292 (KLR)

Environment and Land Court
24 October 2025
5,981 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered demolition of a building encroaching on registered land and awarded Kshs. 3.5 million damages, confirming title deeds are decisive.

What this practically means

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Executive summary

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Said Bin Seif Properties Limited, the plaintiff, sued the partners trading as Mombasa Land Development Company, as successors in title to the original partners, alleging that a two-storey building erected on their Plot MI/XXXVII/95 encroached on the plaintiff's Plot MI/XXXVII/18 by approximately 93.63 square metres. The plaintiff, whose 75-year lease to the defendants had expired, sought demolition of the encroaching structures, general damages for unlawful encroachment, costs and interest. The defendants denied encroachment, asserting that the building was constructed in 1970 with all approvals, that they had been in peaceful possession for over 45 years, and raised defences of acquiescence, waiver, estoppel, laches and limitation under the Limitation of Actions Act. They called no evidence. The court framed three issues: ownership, entitlement to relief, and costs. Applying sections 24, 25(1) and 26(1) of the Land Registration Act, it held that the plaintiff, as registered proprietor, enjoyed indefeasible title which the defendants had not impugned on any of the recognized grounds, and that encroachment was established on a balance of probabilities. Following Park Towers Ltd v John Mithamo Njika and Philip Aluchio v Crispinus Ngayo, the court found trespass proved but, absent evidence of the property's value before and after the trespass, awarded nominal general damages of Kshs. 3,500,000/-. Judgment was entered in terms of prayers (a) to (d) of the amended plaint, including demolition of the encroaching parts of the buildings, with costs and interest to the plaintiff; prayer (e) was not awarded. Judgment was delivered at Mombasa on 24th October 2025 by L.L. Naikuni, J.

Questions the Court framed

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

  1. 1.Who is the lawful owner of the suit property known as Mombasa/MN/Block 1/519
  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

Ownership of the suit property and the effect of the encroachment

Holding

The Plaintiff is the absolute and legally registered proprietor with indefeasible rights, and the Defendants had encroached on its land

Reasoning

The court applied sections 24, 25(1) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and protect title from challenge except on grounds of fraud, misrepresentation, illegality, un-procedural acquisition or corruption. The Defendants, who did not call any witness, adduced no evidence that the Plaintiff's title was vitiated on any of these grounds. The survey and valuation evidence of PW2 and PW3 established encroachment on the Plaintiff's plot.

p. 9
02

Whether the Plaintiff is entitled to damages for trespass and the measure of such damages

Holding

Trespass was proved; the Plaintiff, having not proved the value of the land before the trespass, was awarded nominal general damages of Kshs. 3,500,000/-

Reasoning

Relying on Clerk and Lindsell on Torts and Halsbury's Laws of England, the court held that trespass is an unjustifiable intrusion upon land in possession and that proof of trespass suffices for damages. However, following Philip Aluchio v Crispinus Ngayo, the measure is the difference in the property's value or the cost of restoration, whichever is less; since the Plaintiff led no evidence of the property's state before and after the trespass, the court proceeded to a nominal award.

p. 10
03

Who bears the costs of the suit

Holding

Costs follow the event and were awarded to the successful Plaintiff

Reasoning

Section 27(1) of the Civil Procedure Act provides that costs follow the event unless the court directs otherwise. The authorities cited affirm that the successful party is entitled to costs absent compelling or exceptional circumstances. Having proved its claim, the Plaintiff was entitled to the costs of the suit.

p. 11

Legal principles established

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  • Where trespass is proved, a party need not prove specific damage or loss to be awarded damages, which depend on the facts of each case
  • Costs follow the event and the successful party is typically entitled to costs unless there are compelling reasons to decide otherwise
  • Registration vests absolute ownership in the registered proprietor, and title is indefeasible except on proof of fraud or misrepresentation or acquisition illegally, un-procedurally or through a corrupt scheme

Court orders

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  1. 1.Judgment entered in favour of the Plaintiff against the Defendants in its entirety as per the Amended Plaint dated 23rd October, 2018
  2. 2.An order directing the entire demolition of the encroaching parts of the buildings on the suit property
  3. 3.General damages for unlawful encroachment and use of the Plaintiff's portion of land awarded at Kshs. 3,500,000/-
  4. 4.Costs of the suit to the Plaintiff, with interest on the damages and costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim of encroachment/trespass to land (jurisdiction admitted by both parties); no specific constitutional provision invoked

Relief refused

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Prayer No. (e) - any other relief the Court may deem just

No award was granted under the catch-all prayer; judgment was limited to prayers (a) to (d)

p. 10

Costs

The Defendants shall bear the costs of the suit; the Plaintiff shall have the costs of the suit plus interest on the damages and 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.

That Judgment be and is hereby entered in favour of the Plaintifi as per the Amended Plaint dated 23rd October, 2018 filed on the same day by Said Bin Seif Properties Limited the Plaintifi herein
p. 11Final orders - judgment for the plaintiff
That an order be and is hereby issued directing the entire demolition of the encroaching parts of the buildings on the suit property
p. 11Final orders - demolition of encroaching structures
That the Plaintifi be and is hereby awarded general damages for unlawful encroachment and use of the Plaintifi’s portion of land to the tune of Kenya Shillings Three Million, Five Hundred [Kshs. 3,500,000/-].
p. 11Final orders - general damages for encroachment
That the Plaintifi shall have the costs of the suit as per the Amended Plaint dated 23rd October, 2018 filed on the same day and interest on [c] and [d] herein.
p. 12Final orders - costs and interest
the Plaintifi has proved his case on the required standard of balance of probabilities. For the above reasons the Court enters Judgment for the Plaintifi against the Defendants in terms of prayers No. [a], [b], [c] and [d].
p. 10Standard of proof and relief granted

Issues in the judgment

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material

The first framed issue refers to a parcel 'Mombasa/MN/Block 1/519' which does not match any of the suit parcels pleaded or described in the judgment (Plots MI/XXXVII/18 and MI/XXXVII/95)

minor

The encroachment area is inconsistently stated - the pleadings and valuation evidence say 93.63 sqm while the plaintiff's witnesses testified to 96.6 sq metres

minor

The judgment recites a facts not supported by the pleaded case: an accusation of putting up a barbed wire fence annexing a portion measuring 10 metres, which does not appear in the pleadings or evidence summarized

material

The finding on ownership (issue a) is framed around a plot number that is never identified in the pleadings or evidence, and the court cites the plaintiff's title deed for Mombasa/Block/XXXVII/18 while determining ownership of an unnamed plot

minor

The parties' list in the preliminary section names eight defendants but the body and defence speak of five Defendants, with current partners substituted as personal representatives of deceased original partners

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Said Bin Seif Properties Limited v Savani & 9 others (Environment and Land Case 148 of 2018) [2025] KEELC 7292 (KLR)", Case Analysis (2025). Not stated in the judgment (Mombasa ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7292/eng@2025-10-24

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