Mohamed Ahmed Hassan, Seif Hemed & Others v Ali Mohamed Said & 30 Others

permanent structures thereon and occupied the suit property without any lawful justification or excuse. 3. The plaintiffs further pleaded that despite issuance of a demand and notice of intention to sue, the defendants had failed to vacate the suit property thereby rendering the instant suit necessary. 4. The record shows that some of the defendants filed a statement of defence denying the plaintiffs’ claim in its entirety. They denied that the plaintiffs were the legal representatives of the estate of the deceased. They denied being trespassers on the suit propety and pleaded that at all material times they were rent paying tenants of the owner of the suit property and that upon his demise they continued paying ground rent to the plaintiffs. 5. The defendants further pleaded that they had become entitled to the portions of the suit properties they each occupied on account of the doctrine of prescription or adverse possession. It was their further defence that the plaintiffs’ suit for recovery of the suit property was time-barred under the Statute of Limitations. MSA ELC 47 OF 2009 (JUDGMENT) Page 2

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6. The plaintiffs further prayed for relief against forfeiture under Section 114 of the Indian Transfer of Property Act 1882 (ITPA), on such terms and conditions as the Court may deem fit. 7. By their Counterclaim, the 1st, 6th, 7th, 9th, 10th, 11th, 15th, 18th, 20th, 21st, 22nd, 24th, 25th and 28th defendants reiterated the contents of their defence and pleaded that they were entitled to adverse possession of the suit property by reason of having occupied the same for periods exceeding 12 years. They pleaded that they were lawful purchasers of the suit property without notice of any defect in title. 8. The Plaintiffs also sought relief from the consequences of forfeiture of lease and a refund of the goodwill allegedly paid to the Plaintiffs. As a result, they prayed for dismissal of the Plaintiffs’ suit and for their Counterclaim to be allowed. 9. By their reply to defence, the plaintiffs joined issue with the defendants on their defence and reiterated the contents of the plaint. By their defence to Counterclaim, they denied all the defendants’ allegations contained therein and put them to strict proof thereof. 10. The plaintiffs reiterated that they were the legal representatives of the estate of the deceased. They denied that the defendants MSA ELC 47 OF 2009 (JUDGMENT) Page 3

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had paid any ground rent as alleged or at all and put them to strict proof of their allegation. They also denied that their claim for recovery of the suit property was time-barred. It was pleaded that the Plaintiffs were trespassers in law hence not entitled to relief against forfeiture of lease under the ITPA. 11. The material on record shows that the plaintiffs and some of the defendants engaged in out of Court negotiations which resulted in a partial settlement of the dispute. The record shows that 23 of the defendants signed a mediation settlement agreement dated 03.06.2024 settling the dispute with the plaintiffs. Later on, the 8th defendant also settled the matter with plaintiffs. However, the suit against the rest of the defendants proceeded to trial. 12. At the trial hereof, the plaintiffs called the 2 nd plaintiff Hemed Seif Hemed as the sole witness. He adopted the contents of his witness statement dated 21.01.2026 as his evidence in chief and produced the documents in the plaintiffs’ trial bundle as exhibits. The plaintiffs maintained they were the proprietors of the suit property and that the defendants were trespassers who were in wrongful occupation thereof save for the ones who had settled the matter out of Court through mediation. The plaintiffs thus MSA ELC 47 OF 2009 (JUDGMENT) Page 4

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prayed for the reliefs sought in the suit as against the 24 defendants who were not party to the settlement. 13. The record shows that the 24 defendants against whom the suit proceeded to hearing did not attend Court for hearing and they did not tender any evidence at the trial. The record shows that 18 of them could not be traced for personal service hence the Court granted leave to the plaintiffs to serve them through substituted service by advertising the hearing notice in a newspaper of national circulation. 14. The Court has considered the pleadings, documents and the evidence in this matter. The Court is of the view that the main questions for determination in this suit are: a) Whether the plaintiffs have proved their claim against the 24 defendants who were not party to the mediation settlement agreement; b) Whether the defendants have proved their Counterclaim against the plaintiffs; c) Whether the plaintiffs are entitled to the reliefs sought in the suit; d) Whether the defendants are entitled to the reliefs sought in the Counterclaim; e) Who shall bear costs of the suit and Counterclaim. MSA ELC 47 OF 2009 (JUDGMENT) Page 5

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15. The Court has considered the material and submissions on record. The Court is satisfied that the plaintiffs are among the registered owners of the suit property through succession proceedings in respect of the estate of the deceased. The defendants did not attend Court to challenge the plaintiffs’ ownership or to tender any evidence of their alleged ownership. 16. The defendants did not also tender any evidence at the trial to justify the basis of their entry, occupation and use of the suit property. There was no evidence to demonstrate that they were in occupation with the consent of the owners or on account of some other lawful justification or excuse. Accordingly, the Court is inclined to believe the plaintiffs’ evidence that the 24 defendants are merely trespassers on the suit property. The Court is thus satisfied that the plaintiffs have proved their claim against the defendants on a balance of probabilities. 17. The Court has considered the material on record on the second issue. As indicated before, the defendants did not tender any evidence at the trial either to demonstrate their defence or their counterclaim. 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. As a result, the Court finds and holds that the MSA ELC 47 OF 2009 (JUDGMENT) Page 6

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defendants have failed to prove their counterclaim against the plaintiffs. 18. The Court has found that the plaintiffs have proved their claim against the 24 defendants to the required standard. As a result, the plaintiffs are entitled to the reliefs sought in the plaint to the extent specified in the Judgment. The Court is inclined to grant the plaintiffs the eviction order sought against the Defendants. 19. The Court is also of the view that the plaintiffs are entitled to general damages for trespass to land. However, the Court is not inclined to award them Kshs. 25 million as submitted by the plaintiffs’ advocates. The Court is inclined to award the plaintiffs Kshs. 100,000/- as general damages against each of the defendants severally. 20. The Court has found that the Defendants have failed to demonstrate their pleaded Counterclaim against the Plaintiffs. It would, therefore, follow that the Defendants are not entitled to the reliefs sought in the Counterclaim, or any one of them. 21. The final issue is on costs of the suit and Counterclaim. Although costs of a suit or actions are at the discretion of the Court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap 21). MSA ELC 47 OF 2009 (JUDGMENT) Page 7

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The Court finds no good reason why the successful parties should not be awarded costs of the suit. As a result, the plaintiffs shall be awarded costs of the suit. However, the Court is of the view that the Plaintiffs should not be awarded costs of the Counterclaim since it was never prosecuted at the hearing. 22. The upshot of the foregoing is that the Court finds and holds that the Plaintiffs have proved their claim against the 24 Defendants to the required standard. However, the Court finds and holds that the Defendants have failed to prove their Counterclaim against the Plaintiffs. As a result, the Court makes the following orders for disposal of the suit and Counterclaim: (a) Judgment be and is hereby entered for the Plaintiffs against the following Defendants, that is, Dickens Zubeda, Awadh Ali Bamuriki, Robert Wachira, Yusuf Kilemba/Yusuf Okumu, Felix Mreri/Martin Mreri, Salim Bayusuf, Mohamed Said Ali/Idrisi Said Ali, Shamsa Soud, Osama Abdillahi, Cyrus Mbogo Kaara, Mohamed Yego/Hassan Abdi, Amani Jeremiah, Amina Msellem, James Timona, Ali Ibrahim Mkunga, Kahonzi Karisa, Fatuma Omar Tsuma, Mwanaiki Mambo, Khamis, Said Abdalla Mgupu, Tando, Barani Mwanakombo Mbogi, Richard Jidei and Titus Kadilo Dena in the following terms: MSA ELC 47 OF 2009 (JUDGMENT) Page 8

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(i) 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. (ii) The Defendants shall severally pay general damages of Kshs. 100,000/- for trespass to land. (iii) The Plaintiffs are hereby awarded costs of the suit. (b) The Defendants’ Counterclaim is hereby dismissed in its entirety with no order as to costs. It is so decided. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 24 TH DAY OF SEPTEMBER 2026 Y. M. ANGIMA JUDGE In the presence of: Mr. Idris Ahmed for the Plaintiffs No appearance for the Defendants Court Assistant: Hinga MSA ELC 47 OF 2009 (JUDGMENT) Page 9

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