Salma Said Salim & Feiza Mohamed Salim v Feisal Mohamed Ali & Hadhi Swale Hadhibu [2019] KEELC 1806 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT MOMBASA

ELC CASE NO. 190 OF 2014

SALMA SAID SALIM.............................................1ST PLAINTIFF

FEIZA MOHAMED SALIM..................................2ND PLAINTIFF

VERSUS

FEISAL MOHAMED ALI.....................................1ST DEFENDANT

HADHI SWALE HADHIBU..................................2ND DEFENDANT

JUDGEMENT

1. The Plaintiffs sued the 1st and 2nd Defendants vide their plaint dated 25th September 2012 seeking the following orders;

(a) An order be issued to revoke their sale agreement of the dwelling house situated in Plot No. 470/1/MN and eviction of the 2nd defendant, his friends, relatives or his family from the same house.

(b) Costs of this suit.

(c) Interest on (b) above at court rates.

(d) Any other or further relief as this Honourable High Court may consider just.

2. The plaintiffs claim is that the 1st Defendant who is the owner of the Plot No. 470/1/MN has sold their house without land built on the said parcel to the 2nd Defendant without the Plaintiff’s consent. That the plaintiffs have made several attempts to resolve the matter without success.

3. The Defendants filed a joint statement of defence on 29th October 2012 challenging the orders sought by the plaintiff. The 2nd Defendant pleaded that he bought a house without land from Mohamed Musa Mohamed on 23rd October 2011 for a consideration of Kshs1,000,000/= and the 1st Defendant gave consent. The Defendants also plead that the plaintiffs have not demonstrated that the suit property forms part of the estate of Omar Mohamed Salim. The Defendants pleaded that the plaintiffs lack legal capacity to bring this suit.

4. The preliminary objection on capacity was determined on 5th November 2013 by Justice Muya. The matter proceeded to full hearing in the absence of all the defendants and their advocate. The plaintiffs called 4 witnesses. The defendants filed a list of documents which contained a sale agreement dated 23rd October 2011 between the 2nd Defendant and a Mr. Mohamed Musa Mohamed over Plot No. 217/Sec 1/MN Mtopanga.

5. PW4 Mr Patrick Lugogo gave evidence stating that he is the Chief Building Inspector for the County Government of Mombasa. He presented to the court a map for the area (P ex 6) and two sets of building plans (P ex 5(a) and (b). The approved plan for a building on plot 470/1MN was issued to Omar Mohamed Salim while the approved building plan on plot no 217/1/MN was issued to Mohamed Musa Mohamed. PW4 added that Plot Nos. 470/1/MN and 217/1/MN are lying on the same area as per the map (P ex 6) neighbouring each other.

6. The evidence of PW4 was sufficient in determining this matter based on the pleadings filed. Why do I conclude in this manner? The 2nd defendant in his replying affidavit sworn on 25th October 2012 and filed in court on 29th October 2012 annexed two sale agreements all referring to Plot No. 217/1/MN-Mtopanga as annex A & B. He also annexed a building plan for his development on Plot 217/1/MN issued to Mohamed Musa Mohamed. The 2nd defendant thus has no interest over Plot No. 470/1/MN has ever been passed to him as by the 1st defendant he alleges.

7. The second Plaintiff produced a marriage certificate between her and Omar Mohamed Salim. The date of marriage is given as 31st December 1993. She also produced a death certificate dated 8th March 2006 showing Omar Mohamed Salim died on 8th September 2004. The plaintiffs also produced a building plan approved and issued to Omar-deceased on 30th June 2003 over Plot No 470/1/MN. PW1 stated that her husband had begun putting up the house but unfortunately he died before completing it. From the documentary evidence presented indeed the 2nd plaintiff who is the widow to the late Omar together with his children are the ones entitled to inherit/claim the structure that Omar-deceased had put up as well as any interest he had over the suit plot.

8. Before filing this suit, this Plaintiffs stated that they went before the chief to try and resolve the matter but the defendants did not make any appearance. A copy of the Chief’s summons to both defendants dated 26th March2012 was produced as P ex 4. When the defendants failed to adhere to the summons the Plaintiffs came to court for assistance.

9. I have considered the evidence presented to prove the Plaintiffs case which evidence has not been challenged. I am satisfied that the plaintiffs have proved their case. This court finds for the Plaintiffs that they are entitled to quite possession and user of the house without land on Plot No. 470/1/MN. If the 2nd defendant did any developments on the said house on Plot No. 470/1/MN then he has himself to blame for putting his money on a property he did not buy and inspite of being forewarned by the Plaintiffs, he disregarded. Accordingly I enter judgment for the Plaintiff as prayed in the plaint in terms of paragraphs (a) & (b) thereof.

Dated, Signed and Delivered at Mombasa this 12th day of July 2019.

A. OMOLLO

JUDGE.