Mohamed Ahmed Hassan, Seif Hemed & Others v Ali Mohamed Said & 30 Others
The bottom line
#A Mombasa court ordered 24 occupants off prime Mombasa land, fined each Kshs. 100,000, and threw out their counterclaim because they never showed up to prove it.
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 plaintiffs have proved their claim against the 24 defendants who were not party to the mediation settlement agreement
- 2.Whether the defendants have proved their Counterclaim against the plaintiffs
- 3.Whether the plaintiffs are entitled to the reliefs sought in the suit
- 4.Whether the defendants are entitled to the reliefs sought in the Counterclaim
- 5.Who shall bear costs of the suit and Counterclaim
Key legal issues
#Proof of plaintiffs' title and defendants' trespass
Plaintiffs proved ownership through succession proceedings; defendants, having adduced no evidence, were mere trespassers
The 24 defendants who were not party to the mediation settlement neither attended the hearing nor tendered evidence. The plaintiffs' evidence of registered ownership through succession stood unchallenged and uncontradicted. Without any evidence of consent, tenancy or other lawful justification for occupation, the court accepted the plaintiffs' testimony that the defendants were trespassers, proved on a balance of probabilities.
Defendants' counterclaim for adverse possession and relief against forfeiture
Counterclaim dismissed in its entirety for want of proof
The counterclaiming defendants pleaded adverse possession exceeding 12 years, lawful purchase without notice of defect in title, and relief against forfeiture under Section 114 of the Indian Transfer of Property Act 1882. Having failed to attend court or tender any evidence, they discharged no burden of proof. The counterclaim therefore failed entirely, and no relief against forfeiture or refund of goodwill was available to them.
Quantum of general damages for trespass
Kshs. 100,000/- awarded severally against each defendant instead of the Kshs. 25 million sought
The court accepted that the plaintiffs were entitled to general damages for trespass to land but declined the Kshs. 25 million advanced in submissions. It assessed damages at Kshs. 100,000/- against each of the 24 defendants severally, an individualised rather than global award, without detailed reasoning on the assessment criteria.
Costs of suit and counterclaim
Costs of the suit to the plaintiffs; no order as to costs on the counterclaim
Applying the proviso to Section 27 of the Civil Procedure Act, costs follow the event and the successful plaintiffs were awarded costs of the suit. However, since the counterclaim was never prosecuted at the hearing, the court declined to award the plaintiffs costs of the counterclaim, dismissing it with no order as to costs.
Legal principles established
#- A party who alleges trespass or claims adverse possession bears the burden of proving it; failure to adduce evidence at trial is fatal to the claim and counterclaim.
- Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless the court shows good reason otherwise.
Court orders
#- 1.The named defendants shall vacate and hand vacant possession of the portions of L.R. No. 253/II/Mainland North in their occupation within 60 days, in default of which they shall be forcibly evicted
- 2.The defendants shall severally pay general damages of Kshs. 100,000/- each for trespass to land
- 3.The plaintiffs are awarded costs of the suit
- 4.The defendants' Counterclaim is dismissed in its entirety with no order as to 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 the suit property L.R. No. 253/II/Mainland North
Relief refused
#General damages of Kshs. 25 million as submitted by plaintiffs' advocates
Court awarded Kshs. 100,000/- severally against each defendant instead
Costs of the Counterclaim to the plaintiffs
Counterclaim was never prosecuted at the hearing
Relief against forfeiture under Section 114 of the Indian Transfer of Property Act 1882 and refund of goodwill
Counterclaim unsupported by any evidence at trial; defendants did not attend or tender evidence
Costs
Plaintiffs awarded costs of the suit; Counterclaim dismissed with no order as to 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.
the Court is inclined to believe the plaintiffs' evidence that the 24 defendants are merely trespassers on the suit property
In the absence of any evidence to demonstrate the counterclaim, the Court is not satisfied that the defendants have discharged their burden of proof in respect of their counterclaim
The Defendants shall vacate and hand vacant possession of the portions of L.R. No. 253/II/Mainland North in their occupation within 60 days from the date hereof in default of which they shall be forcibly evicted.
The Defendants shall severally pay general damages of Kshs. 100,000/- for trespass to land.
The Defendants’ Counterclaim is hereby dismissed in its entirety with no order as to costs.
Issues in the judgment
#Delivery venue inconsistency: Mombasa case delivered virtually at Thika
Chronology anomaly: suit filed 2009 but witness statement dated 21.01.2026
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Ahmed Hassan, Seif Hemed & Others v Ali Mohamed Said & 30 Others", Case Analysis (2026). ELC No. 47 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5778/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.