Court dismisses land appeal despite inactive defence

The Environment and Land Court in Malindi has dismissed an appeal over unregistered ancestral land despite the respondents failing to actively defend their case.

The dispute dates back to 2021, when Ali Yusuf Mwatsahu moved to the Mariakani Principal Magistrate’s Court, alleging that four individuals had invaded and developed his family’s 2.5-acre plot in Samburu Sub-County, Kwale County.

He described the land as ancestral and said he had occupied and cultivated it for years, even leasing part of it to a third party in 2003.

In his suit, he sought a permanent injunction restraining the four, an order for demolition of alleged illegal structures and damages for trespass.

The respondents initially filed a defence and counter-claim, but later withdrew their list of documents and preliminary objection and did not present witnesses.

This created the impression that the case was effectively unopposed, since the respondents offered no submissions or evidence.

“On procedural grounds, the Appellant faulted the Respondents’ Defence and Counterclaim, arguing that they are fatally defective; that the Respondents failed to file a verifying affidavit, list of witnesses, witness statements, or documentary evidence in support of their pleadings;

They even withdrew their list of documents and preliminary objection via a notice dated 16/11/2021.

As a result, the Appellant contended that their defence and counterclaim remained mere allegations unsupported by evidence,” the court documents state.

At the hearing, he testified and called the then Assistant County Commissioner of the division, who produced minutes of a 2019 Divisional Conflict Resolution Committee meeting that had heard a boundary dispute between the appellant and one of the respondents.

Mwatsahu argued that the committee had resolved the matter in his favour and that the respondents were in contempt by entering the land, cutting down trees, and demolishing a house he had built before putting up their own permanent structures.

When the trial magistrate dismissed his claim in 2023, Mwatsahu appealed Malindi.

He faulted the magistrate for disregarding his oral and documentary evidence, for failing to recognise the committee’s decision, and for awarding costs to the first respondent.

He insisted that under Article 63 of the Constitution, he was entitled to sue in his own right as a beneficiary of ancestral land without succession papers.

He also maintained that the purported sale of the land to the fourth respondent was invalid for want of a written contract, citing the Law of Contract Act.

In his submissions, the appellant pressed for Sh3 million in general damages for loss of user and emotional distress and Sh1.5 million in exemplary damages for what he termed “cynical trespass.”

He cited several precedents to support large awards despite a lack of precise valuation.

Notably, the respondents filed no submissions in response and offered no counter-arguments at the appellate stage.

Justice Mwangi Njoroge, however, held that the appellant still bore the burden of proving his case on a balance of probabilities under the Evidence Act.

 After re-evaluating the record, the judge found that the Kasemeni committee had only handled a boundary dispute and had not adjudicated ownership of the suit property.

The committee’s minutes, therefore, did not confer proprietary rights over unregistered, unadjudicated land.

The court also observed that while Mwatsahu produced photographs, letters, and his own testimony, he did not bring independent witnesses to confirm his alleged demolished structures, cut trees, or long-standing exclusive possession.

During a site visit, the trial court noted a fenced portion, a dam, toilets, a stone building, and cement poles but found the fenced plot vacant.

Mwatsahu conceded the existing buildings did not belong to him. In the judge’s view, these factors weakened rather than strengthened his claim.

Justice Njoroge concluded that the appellant had not demonstrated an enforceable customary interest or proved acts of ownership sufficient to displace the respondents’ possession.

This is despite not actively defending the appeal.

He therefore upheld the trial magistrate’s decision.

“The evidence relied upon was insufficient, uncorroborated, and did not establish exclusive or continuous occupation, nor any clear acts of ownership capable of displacing the Respondents’ possession. Accordingly, the appeal is hereby dismissed in its entirety,” he ruled.