Shee & 72 others v Asmuhar Developer Limited [2024] KEELC 7365 (KLR)

Shee & 72 others v Asmuhar Developer Limited (Environment & Land Case 187 of 2017) [2024] KEELC 7365 (KLR) (6 November 2024) (Judgment)

Neutral citation: [2024] KEELC 7365 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 187 of 2017

SM Kibunja, J

November 6, 2024

Between

Omar Salim Shee

1st Plaintiff

Charles Onwonga Kanando

2nd Plaintiff

George Okoyo Omondi

3rd Plaintiff

Samuel Otieno Nyanya

4th Plaintiff

Juliet Kavere

5th Plaintiff

Dominic Agoi

6th Plaintiff

Alfred Nag Hanga

7th Plaintiff

Athman Mohamed

8th Plaintiff

Risco Jillo

9th Plaintiff

Saumu Chibule

10th Plaintiff

Kombe Nzai Kombe

11th Plaintiff

Kazungu Mueni Mramba

12th Plaintiff

Frank Joseph Mwangemi Chishenga

13th Plaintiff

Arnold Mwamu Anzazi

14th Plaintiff

Anzazi Joshua Phidlizar

15th Plaintiff

Pinispa Otieno Martine

16th Plaintiff

Ummy Lukurdhum Festus

17th Plaintiff

Mwongera Ikandi

18th Plaintiff

Zuhura Festus Nionjira

19th Plaintiff

Jairus Nuta Kaindi

20th Plaintiff

Rosemary Wanyama Achieno

21st Plaintiff

Athman Mavinda Gideon

22nd Plaintiff

Kulthum Omar Said

23rd Plaintiff

Cariat Oluoch Oredo

24th Plaintiff

Baraka Ali Seneda

25th Plaintiff

Lucy Kaingi Kivunzi

26th Plaintiff

Kadzo Nyale Chamanga

27th Plaintiff

Caroline Achieng Nyabenga

28th Plaintiff

Kassim Ali Sawa

29th Plaintiff

Albert Kilonzo Musyoka

30th Plaintiff

Tamara Joan Richard

31st Plaintiff

Richard Philip Keyan Hassan

32nd Plaintiff

Harold Mwaita Mjomba

33rd Plaintiff

Grace Nyakoma

34th Plaintiff

Ali Issa Ali

35th Plaintiff

Rehema Mkiwa Sinona

36th Plaintiff

Fridah Moraa Onwonga

37th Plaintiff

Kassim Jumanne Kassim

38th Plaintiff

Joyce Dzombo Munga

39th Plaintiff

Alex Bunge Mwaringa

40th Plaintiff

Bakari Suleiman Sarai

41st Plaintiff

Jumanne Kasim Mwamtsuma

42nd Plaintiff

Matano Katana Charo

43rd Plaintiff

Nyawa Kombo

44th Plaintiff

Seth Mueni Mumo

45th Plaintiff

Jackson Shedraka

46th Plaintiff

Mwavitu Ali Rashid

47th Plaintiff

Chiro Pole Tsuma

48th Plaintiff

John Tuva Dzimba

49th Plaintiff

Patience Saro Mwadzanae

50th Plaintiff

Mary Scholastica Chausiku

51st Plaintiff

Jane Auma Augustine

52nd Plaintiff

John Otiende Ndalo

53rd Plaintiff

Janet Jumwa Bengo

54th Plaintiff

Jefferson Msengeti

55th Plaintiff

David Chiko Chironda

56th Plaintiff

Janet Kingi Japheth

57th Plaintiff

Mafanikio Bakari Chango

58th Plaintiff

Margaret Mbithe Otieno

59th Plaintiff

Japheth Muia Mullevu

60th Plaintiff

Walter Kalume Chinyezi

61st Plaintiff

Tsuma Dzuwa Mkoba

62nd Plaintiff

Philomena Mwikali Mungi

63rd Plaintiff

Fatuma Ali Mashedi

64th Plaintiff

Florence Kwamboka Mwachuki

65th Plaintiff

Warston Mbagah Mwamu

66th Plaintiff

Zacharia Amos Kachubu

67th Plaintiff

Ezekial Mungatana

68th Plaintiff

Geoffrey Arasa Nyakwara

69th Plaintiff

Gabriel Deche Mwamu

70th Plaintiff

Victor Charo Karisa

71st Plaintiff

Mugaza Mulala Brdzame

72nd Plaintiff

Nassir Swaleh Abdi

73rd Plaintiff

and

Asmuhar Developer Limited

Defendant

Judgment

1. The plaintiffs filed this suit through the amended originating summons dated 1st February 2021, seeking ownership of LR No. 8844/1/MN, (Original No.4826/2/)1MN, suit property, and be issued with the title, for having been possession openly, uninterrupted and continuously for over 40 years. The originating summons is supported by the affidavit of Omar Salim Shee sworn on 1st February 2021, in which he inter alia annexed copy of the certificate of postal search dated 8th January 2020 showing the suit property is registered in the name of Asmuhar Developer Limited, the defendant.

2. During the hearing, the plaintiffs called Omar Salim Shee and Mwavitu Ali Rashid who testified as PW1 and PW2 respectively. They adopted the contents of their statements dated 20th May 2019. PW1 testified that he went to the suit land in the 1970’s and has lived there for over 40 years. During cross-examination, PW1 told the court the suit land is about one acre, and there are 20 plots of 100 by 50 feet, 40 plots of 40 by 15 feet and 30 plots of 20 by 15 feet, about 70 permanent houses and three temporary houses. On his part, PW2 told the court the suit land is over two acres. That there are 70 permanent houses and one semi-permanent one. That the smallest plots are of 40 by 40 feet, and others are of 80 by 40 feet. That his plot is 50 by 40 feet. During cross-examination, PW2 told the court that he entered the suit property in 1985 and found others already there.

3. The learned counsel for the plaintiffs filed their submissions dated the 26th June 2024, that the court has considered.

4. The following are the issues for the determinations by the court:a.Whether the plaintiffs have met the threshold to be declared as proprietors of the suit property under adverse possession.b.Who pays the costs?

5. The court has carefully considered the grounds on the originating summons, affidavit and oral evidence by PW1 and PW2, submissions by the learned counsel for the plaintiffs, the superior courts decisions cited thereon, the record and come to the following conclusions:a.The record confirms that upon filing the suit, the plaintiffs later moved the court through the notice of motion dated 9th November 2023 seeking to be allowed to serve the originating summons through substituted service. The application was heard and granted on the 22nd November 2023. The plaintiffs filed the affidavits of service of Mathew Oduor Okumu, advocate, sworn on 15th December 2023 and 31st January 2024, annexing copy of page 49 of the Standard Newspaper of 30th November 2023, confirming the substituted service was carried through advertisement. However, the defendant neither entered appearance nor defended the suit. That notwithstanding, the plaintiffs are pursuant to sections 107 to 109 of the Evidence Act chapter 80 of Laws of Kenya, under legal duty to prove their claim to the standard required of balance of probability.b.The proceedings of 28th October 2019 and 13th February 2020 show that the court had directed the plaintiffs to file a copy of an extract of the suit property’s title. The plaintiffs complied and annexed a copy of the certificate of title issued on 13th November 2008 to the further further affidavit of Omar Salim Shee, sworn on 14th May 2020. The court also directed the plaintiffs on 21st July 2022 and 15th February 2023 to have a licensed surveyor prepare a ground report and have it filed in court. This was also complied with and a report prepared by Pimatech Land Surveyors and Consultants dated 3rd March 2023 was filed.c.Though there were minor differences in the oral testimonies of PW1 and PW2 on for example the sizes of the plots occupied by the plaintiffs on the suit property, they were both in agreement that they have lived on that land exclusively of the registered owner, continuously and without interruption for over 12 years. They also confirmed that the 73 families have occupied the whole land, built mostly permanent houses and a few semi-permanent ones. The surveyor’s report confirmed there were 72 structures on the suit property as detailed in the annexed plan, which show the structures are of different sizes and dimensions. The court is satisfied that the plaintiffs have discharged their duty and proved their claim of adverse possession over the suit property to the standard required.d.That as the defendant did not defend the suit, the plaintiffs will meet their costs.

6. That from the foregoing, the court finds that the plaintiffs have proved their case to the standard of balance of probability. The court therefore enters judgement for the plaintiffs against the defendant and orders as follows:a.That prayers (1) to (3) of the amended originating summons dated the 1st February 2021 are granted.b.Plaintiffs to bear their own costs.Orders accordingly.

DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 6TH DAY OF NOVEMBER 2024. S. M. KIBUNJA, J.ELC MOMBASA.In The Presence Of:Plaintiffs : Mr. OdourDefendants : No Appearance.Leakey – Court Assistant.S. M. KIBUNJA, J.ELC MOMBASA.