Introduction
Salim Salim Mwabalahe, Juma Hassan Nondo, Yusuf Maguti Odhiambo, Ali Idris, Mwinyi Ali Said and Rama Hamisi residents of Likoni area within Mombasa County (hereinafter referred to as plaintiffs) have come to this court against Abdala Bamahriz and County Government of Mombasa (hereinafter referred to as the defendants). They bring this suit on their own behalf and on behalf of the general community members of the Likoni Area and the general public at large.
The plaintiffs state that the 2nd defendant is the owner as custodian of Land Parcel Number M/S/Block1/1592 (hereinafter referred to as the suit land) for the general public and inhabitants of Mombasa County which has allegedly been leased out to the 1st defendant.
The plaintiffs state that the suit land is public land as defined in Article 62 of the Constitution of Kenya 2010 and part II of the Land Act 2012. The Plaintiffs state that the 2nd Defendant has illegally and un-procedurally alienated and allocated the Suit Land which is Public Land to the 1st Defendant to the detriment of the Plaintiffs and the general public at large.
The Plaintiffs state that the entire community within Likoni area stands to suffer irreparable loss if the construction activities of the 1st Defendant already commenced on the Suit Property are not stopped by this Honourable Court. The Plaintiffs' case against the Defendants is for a declaration that the alienation and allocation of the suit property by the 2nd Defendant to the 1st Defendant is null and void. The Plaintiffs state that despite demand and notice of intention to sue having been served the 1st Defendant has refused to comply and stop his activities on the said parcel of Land.
The plaintiffs ultimately pray for a declaration that the alienation and allocation of the suit property by the 2nd Defendants to the 1st Defendant is null and void. They urge this court to order the Defendants to surrender and/or tender vacant possession of the suit property to the Likoni Community. Last but not least, the plaintiffs pray for the costs of this suit.
The 1st Defendant filed amended defence and counterclaim dated 26th June 2025 whose import is that the plaintiffs have not filed the suit on behalf of the entire community but for themselves. The 1st defendant states that the suit property was leased to 1st defendant by the 2nd defendant for a term of 99 years. According to the 1st defendant, the suit property is not public land but it is private land alienated in 1971.
The 1st defendant states that on 8th February 2018, he purchased the suit property from one Bridgitte Kidi Okoth the daughter and beneficiary of the estate of the late Joseph Okoth Waudi the then owner of the suit property. The 1st defendant avers that he executed an agreement for sale of the suit property at a consideration of Kshs3,800,000 [Three million, eight hundred thousand shillings] on the 8th February 2018, and that the said agreement was executed after he had conducted his due diligence with regards to ownership. That an executed transfer instrument dated 8th February 2018 was lodged at the land registrar’s office submitted together with the requisite documents to wit; the sale agreement, consent and transfer by personal representative to person entitled under a will or on an intestacy dated 14th December 2017, and the same was registered on the 28th February 2018. Subsequently a certificate of lease confirming the 1st defendant as the registered proprietor was issued on the 28th February 2018. A post transfer search on the suit parcel of land was conducted on the 28th February 2018 which confirmed successful transfer to the 1st defendant.
The 1st defendant states that in light of the foregoing, he is the registered owner of the suit property, having lawfully purchased the same from a previous owner who is not a party to the instant suit and holds a certificate of lease valid for 99 years. The said land was a subdivision scheme carried out by the Municipal Council of Mombasa in 1971, giving rise to Plot Number 1591 currently owned by Rafiki Bank] and the suit property and 1584 owned by Total Petrol Station. The 1st defendant further states that he has, ever since the purchase, promptly and without fail been paying the relevant and rates to the 2nd defendant herein.
The 1st defendant laments that sometimes in 2018, he constructed a boundary and or perimeter wall only for it to be brought down by the plaintiffs herein, with the support of their elected leaders making the defendant/applicant to suffer losses. The Particulars of special damages are materials and labour costs for the construction of a perimeter wall Kshs1,800,000/=
The 1st defendant further avers that the plaintiffs have unlawfully, and without authority used the said suit land as a playground for football matches making it hard for him to build a business hub consisting of a double storeyed warehouse, thus leaving the said suit property unutilized and undeveloped.
The 1st defendant states that he purchased the suit property with the sole intentions of setting up a business hub consisting of a double storeyed warehouse, to house a supermarket, a paved concrete yard having adequate parking bays for customers and five mini shops in the front yard with staircase to five office spaces both with plinth areas of 1959.35 square metres, which would have been leased for a monthly net rental income of Kshs3,339,200.
The 1st defendant claims that in 2023, he decided to rebuild the perimeter wall but the same was met with resistance from the plaintiffs herein. He asserts that by reason of the foregoing, he has suffered damages in terms of loss of income for rent for 5 years to a tune of Kshs200,352,000.
The defendant prays for a declaration that he remains the bona fide proprietors of the suit property. Moreover, that general damages be awarded to the 1st defendant against the plaintiffs for their forceful use of the suit property. Lastly, that Special damages of Ksh 1,800,000.00 be awarded to the 1st defendant against the plaintiffs. That costs of the suit and counterclaim to be awarded to the 1st defendant.
The 2nd defendant filed defence whose gist is that the 1st defendant is a stranger to the 2nd defendant and that the 2nd defendant has not allocated the suit property to the 1st defendant. That the plaintiffs did not report to the 2nd defendant the construction of structures on the suit property.
Plaintiffs’ Evidence
When the matter came up for hearing PW1 Salim Salim Mwabalehe stated on oath that suit Parcel of Land is situate adjacent to the Mombasa Lungalunga Road. That the said Parcel of Land is used by the entire community of Likoni Area for several social activities including prayers, crusades, political rallies and as a playground for students from adjacent schools in the neighbourhood among others. That the 1st Defendant herein has without any authority encroached on the said Parcel of Land had has commenced to erect structures thereon.
The community in the area stands to suffer irreparably if the Defendant is not stopped from carrying out his construction activities on the said Land. That they have reported the Defendant's activities to various Government offices but no action has been taken. The community in the area stands to suffer loss of an important meeting centre through the Defendant's current construction activities.
The plaintiffs produced several pictures in court in support of their case which pictures depict several social events taking place on the said Parcel of Land. According to the plaintiffs, the Defendant actually knows that what he is doing is not right since he has enlisted the presence and security of the Kenya Police Officers form Likoni Police Station to stand guard as the illegal construction works are carried out. The Defendant cannot and could not have been allocated the said Parcel of Land since it has been and it is well known to be a public Land for public activities just like other public lands within the Mombasa County that are used for similar activities. On cross examination by Mr Gitonga, he states that he has no title for the land and that there is no committee dealing with the land. On cross examination by Mr Tajbhai the learned County Attorney, he states that he has no papers showing that the land belongs to the community.
PW2 Ali Idris a resident of Likoni area of Mombasa County, testified that he is a Chairman of several Mosques situate within Likoni area. He knows the Parcel of Land pertaining to the case herein very well. That over the years they usually and normally hold their religious festivities including prayers on the open grounds on which the 1st Defendant named in this Suit has encroached and has commenced construction works thereon. The inhabitants of Likoni area and in particular the worshippers of all the mosques situate within Likoni Area stand to suffer irreparable loss as they will be having no place for worshipping and to carry out their religious activities and festivities. The 2nd Defendant has a duty as the custodian of the Suit Property to ensure that the same is used for maximum benefit to the society and community at large and not by an individual.
Defendant’s Evidence.
The 1st defendant in his evidence in chief stated that on or about 8th February 2018 after doing due diligence with the help of an advocate, he entered into an agreement for the sale of suit property with Bridgitte Kidi Okoth, the Daughter and beneficiary to the estate of the Late Joseph Okoth Waudi, the then registered owner of the suit Property. That an official search of the official search done on 5th December 2017 showed the Late Joseph Okoth Waudi as the registered owner of the suit property That further investigations of the suit property led the 1st defendant to the County Government of Mombasa. A draft Private Valuation done in 2011, showed that the suit property was owned by Joseph Okoth Waudi now deceased. That after the death of Joseph Okoth Waudi, the suit property was transferred to Bridgitte Kidi Okoth, vide a Transfer by Personal Representative to Person Entitled under a Will or on an Intestacy Instrument dated 14th December 2017.
The 1st defendant states that after executing the Agreement of Sale dated 8th February 2018 between himself and Bridgitte Kidi Okoth, a transfer of lease was registered on the same date and a certificate of Lease for a term of 99 years, starting 1st August 1971 was issued in his name on 28th February 2018. That he immediately did a post Transfer search on the suit property on the 28th February 2018 which confirmed that the transfer was successful and that he was the sole proprietor of the property. That since the issuance of the Certificate of Lease in his name, he has been paying all land rents and charges to the County Government of Mombasa in full.
He avers that the suit property was part of the land that came out of the subdivision Scheme carried out by the Municipal Council of Mombasa in 1971 giving rise to plot Number 1591 which is currently owned by Rafiki Bank, the suit property and 1584 currently owned by Total Petrol Station. He purchased the suit property with the intention of constructing and or developing a Business Mall measuring 1959.35m2 due to the property's proximity to the road.
The mall would have earned him Ksh 3,339,200.00 per month, which is the reasonable price for leasing out spaces and or property. That he has therefore lost approximately Ksh 212,874,000.00 being the rent he would have collected for the 5 years from the suit property since 2018.
That after purchasing the property, he began to develop it by constructing a perimeter wall which was brought down by the plaintiffs with the help of their political leaders. The cost of the perimeter wall was Ksh 1,800,000.00 which included materials and labour cost
He states that in 2023, he decided to rebuild the perimeter wall but the same was met with resistance from the plaintiffs' herein. He has been unable to utilize the property as the plaintiffs have made it difficult for him and or his agents, to use and or develop the suit property, by frustrating any attempt he makes to secure the property thus making him incur loss of income from the property. That contrary to the plaintiffs' believes, the suit property is not a public Land as it was alienated and leased out as private land for 99 years, by the then Municipal Council of Mombasa on 1st August 1971.
The county government of Mombasa classifies the suit property as private land and or property and the same is evident from the Valuation of private properties done by the County Government of Mombasa in 2011 at page 21, and from the letter Ref MCG/HR/LND/15/3, dated 20th June 2023 by the Mombasa County Secretary and head of Public Service, one Mr Jeizan Faruk.
The defendant believes that the plaintiffs' Claim is misplaced and without any factual and or backing of the law, and prays that the Plaintiffs' amended plaint be dismissed with costs and his counter claim be allowed as prayed. The 2nd defendant opted not to call any evidence.
Plaintiffs' Written Submissions
On whether or not the plaintiffs have the locus standi to institute this suit, the plaintiff submits that this suit was instituted challenging the allocation of the suit property to the 1st Defendant, which property is public land as testified by the Plaintiffs and further that the County Government was holding the property in trust of the residents of the larger Mombasa County. The Plaintiffs are residents of Likoni Area where the suit property is situated and have utilized the suit property for public purposes and even their fore fathers used the property for public purposes including rallies, sports activities, prayers and charity events and were surprised when in 2018 the 1st Defendant began constructing a perimeter wall as a private developer hence the institution of the suit.
The interest of the Plaintiffs is that they are members of the Likoni Community protecting their rights to public land. Their interest as members of the public is for the protection of public land rights and the illegal acquisition of the suit property to private individuals. They urge the Honourable Court to find that the Plaintiffs have the locus standi to institute and sustain this case.
On whether the 1st defendant conducted due diligence before the purchase of the suit property the plaintiff submits that whereas the 1st Defendant testified that he conducted his due diligence by evidence of a Search, due diligence was not done, and had it been done, the 1st Defendant ought to have noted that the suit property was public land. Part of the 1st Defendant's due diligence was to ascertain the history of the suit property and how the same was originally allocated. Similarly, his due diligence ought to have involved inquiries from the members of the public who are neighbours to the property so as to ascertain its status.
The plaintiff submits that in the current times, it is not enough to rely on the Search as proof of having conducted due diligence. The plaintiff relies on the decision In Nakuru Water And Sanitation Services Company Limited V Prakash Shah & Another 120191 KEELC 633 (Klr) where the court had the following to say;
"One can only claim to be an innocent purchaser for value if he can demonstrate that he did due diligence and it was not fathomable that it was possible to discern the predecessors defective title. In our case, a simple investigation of the head lease would have revealed the conditions which I have copied above, and would have put any reasonable purchaser into inquiry. At some point in my life, I would have thought that a simple search is good enough but I am prepared to change that opinion. I think that given where we stand as a country, and given the prevalence of land fraud, it behoves upon a purchaser to go beyond a mere search when investigating title. "
The plaintiffs contend that the fact that the suit property was being used by the public, due diligence by the 1st Defendant ought to have gone further than just conducting a search. The 1st Defendant ought to have noticed that the suit property was being used by the public and that the lessor was the county government and at least attempted to get the initial lease. The Plaintiffs testified that the suit property was being used by students as a football pitch, and the same is acknowledged in the 1st Defendant's letter dated 20th June 2023 produced as exhibit no 11. By the mere fact that this is the position as noted by the Letter of the County Secretary, the 1st Defendant ought to have been extra careful and done more that obtaining a search on the suit property. He ought to have gone further and established the history of the suit property, and particularly ascertain whether the original allottee legally and procedurally acquired the suit property. The plaintiffs are guided by the binding decision of the Court of Appeal in Chemey Investment Ltd Vs Ag & 2 Others [20181 Eklr where it was held that;
"We have noted that the Ekima Junior Academy never took possession of the suit property. It therefore means that when the appellant purported to purchase the same, the suit property was in the same condition it was when it was initially allocated, namely in use for public purposes. We ask ourselves, which innocent purchaser, without notice, would accept to purchase a property that is being used for public purposes, just next to the provincial headquarters and the law courts, without any form of inquiry". As this court stated in Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others (Supra), only a foolhardy, and we may add, a careless or fraudulent investor would purchase land such as the suit property "with the alacrity of a potato dealer in Wakulima Market".
The plaintiffs also rely on the binding decision of the Court of Appeal decision in Flemish Investments Limited V Town Council Of Mariakani [20161 Keca 68 (Klr) where the court held that;
"A bona fide purchaser exercising due diligence would be expected to inspect the property he is buying, to ascertain its physical location, persons, if any, in occupation, developments, buildings and fixtures thereon, among others. If indeed the appellant honestly believed that Plot No. 34 and the cattle dip on it were part of the suit property, he would have rehabilitated the cattle dip as his property, or simply demolished it, not to pester the respondent for its relocation. For a party who was buying a commercial property rather than a ranch, the presence of a cattle dip on the property should have rang alarm bells. "
The plaintiffs therefore contend that the 1st Defendant failed to conduct proper due diligence to ascertain the actual status and ownership of the suit property and as such cannot rely on the doctrine of bona fide purchaser for value.
The plaintiffs further submit that due process was not followed when acquiring the property. That for a party to acquire public land, there was a process to be followed. The plaintiffs submit that there is no evidence that there was a letter of allocation of the land to the 1st entry in the white card. That there is no evidence of rates paid before registration to the 1st allottee. The plaintiff submits that there is no evidence of the transactions between 1971 when the lease was registered and 1989 when the certificate was issued. The plaintiff argues that to validate the title held by the 1st defendant, we should interrogate how the head lease was acquired.
The plaintiff argue that the documents produced by the 1st defendant have inconsistencies as the certificate of lease shows that the register was opened on the 6th September 2010 whereas the white card shows that the register was opened on the 4th of September 1989. The plaintiffs submit that it is interesting that entries number 11 to 14 were made on the same date.
1ST DEFENDANTS WRITTEN SUBMISSIONS
The 1st Defendant submits that the Plaintiffs have no legal standing to institute and prosecute this suit. The Plaintiffs are six named individuals who claim to be residents of the Likoni area and other than bare assertions of residency and generalized statements that the suit property is used for football, prayers, and public gatherings, they have not established any specific, cognizable proprietary, statutory, or constitutional right in the suit property that is legally distinct from the interest of the general public.
The Plaintiffs rely on Articles 22 and 25 of the Constitution of Kenya, 2010 to assert public interest standing. However, the constitutional broadening of access to justice does not dispense with the requirement of demonstrating a genuine and articulable interest. Critically, the Plaintiffs produced no gazette notice, no survey plan, no deed plan, no resolution of the Municipal Council of Mombasa, and no other official document establishing that the suit land was ever formally set apart, reserved, or designated for public use in any legally recognized manner. The evidence of PW1 and PW2 amounts to nothing more than testimony that members of the public have used a vacant piece of land over the years which is entirely different from the land having been lawfully reserved for public use.
According to the defendant, the distinction is material. In the cases relied upon by the Plaintiffs themselves — particularly Nakuru Water and Sanitation Services Company Limited v Prakash Shah & Another [20191 KEELC 633 (KLR), Chemey Investment Ltd v AG & 2 Others [2018] EKLR, and Flemish investment Limited v Town Council of Mariakani [2016] KECA 68 (KLR) — the public status of the land in question was established by concrete documentary evidence: original grants with special conditions, deeds of setting apart, resolutions of county councils, gazette notices, or survey plans bearing designations
for public use. None of that exists here. The Plaintiffs' suit is therefore a bare collateral attack on a registered title, unsupported by the documentary foundation that the law requires.
The 1st Defendant further notes that this suit was filed in 2018 as an ordinary civil suit by way of plaint, not as a constitutional petition. The Plaintiffs cannot import constitutional standing through submissions alone, having chosen to proceed by way of ordinary civil action. In this regard, the Court is invited to note that the 1st Defendant has been attending court since 2018 and the question of locus standi has been a live issue since the Notice of Motion Application dated 9th April 2024. The Plaintiffs own submissions acknowledge that their interest is that of "members of the Likoni community protecting their rights to public land. This is precisely the kind of generalized public interest claim that, in the absence of documentary proof of a formal public designation, cannot displace a duly registered title.
The 1st defendant submits that due process was followed in the acquisition of the suit property. The Plaintiffs submission that the original allocation of the suit property was not procedural is made without any supporting evidence. The documentary record before this Court tells a different and compelling story.
The White Card/ Green Card Register shows that the register for the suit property was opened on 4th September 1989. The Municipal Council of Mombasa is the lessor. The Certificate of Lease confirms a 99-year leasehold term commencing 1st August 1971. The subdivision scheme that created this plot was carried out by the Municipal Council of Mombasa in 1971, giving rise to Plot 1591 (currently registered to Rafiki Bank), Plot 1592 (the suit property), and Plot 1584 (currently occupied by Total Station). That these neighbouring plots are occupied by a bank and a petrol station respectively is itself cogent evidence that this was a legitimate commercial subdivision not a public reserve.
The 1st defendant relies on the valuation Report by Rashid H. Share of Njihia Muoka Rashid Co. Ltd (Registered Valuer No. 344), sealed and signed on 10th June 2025, confirms under the heading 'Public Utility Concern" that the valuers examined the relevant survey maps and title searches, consulted the Ndungu Land Commission Report (which includes Gazette Notice No. 6862 dated 17th July 2017), and made enquiries with the local planning authority, the highway authorities, the Kenya Airports Authority (KAA), Kenya Railways (IQ), and the National Environmental Management Authority (NEMA). Their finding is unequivocal: the property is private property and there is no evidence that it has ever been set aside for any public use. The plot does not fall within 400 metres of any area reserved for an airport, road, new railway, or wetland. The plot is zoned for commercial use. There are no encumbrances registered against the title.
The 1st Defendant emphasizes the significance of this finding as the Valuation Report was prepared by an independent, registered professional valuer acting in accordance with Kenya Valuation Standards 2021 and International Valuation Standards effective January 2024. It is the only expert evidence before the Court on the physical and legal character of the suit property. The Plaintiffs adduced no expert evidence whatsoever — no valuation, no survey report, no physical planning opinion — to counter it.
In contrast, the Plaintiffs produced photographs and excerpts from newspaper cuttings, which are not admissible as proof of the legal status of land and carry no evidentiary weight in establishing a formal public reservation. The principle is settled: the legal status of land is determined by the register and the instruments of title, not by informal use or media coverage.
The 1st Defendant submits that any discrepancy is adequately explained by the history of the title: the land was originally leased in 1971, the register was opened on 4th September 1989 under the Registered Land Act regime, and the certificate of lease was issued to the 1st Defendant on 28th February 2018 following the transfer from the previous registered proprietor. These are three distinct administrative events in the life of the title, not evidence of fraud. The Plaintiffs have failed to call any officer from the Lands Registry to testify that any entry is irregular, and the 2nd Defendant who is the lessor and best placed to challenge any irregularity in the title it issued, has remained completely silent, filing no defense and calling no witness.
The 1st defendant submits that the silence of the 2nd Defendant is determinative.
The Plaintiffs seek a declaration that the allocation of the suit property by the 2nd Defendant to the 1st Defendant is null and void yet the 2nd Defendant whose own County Secretary wrote on 20th June 2023 confirming the 1st Defendant's registration, and whose officers approved the Consent to Transfer, has not challenged the title it issued. It is a fundamental principle that a grantor cannot easily challenge the validity of a grant it made. If there were any irregularity in the original allotment it was for the 2nd Defendant to lead evidence of it. It has chosen not to do so.
The 1st defendant submits that he is a bona fide purchaser for value without notice. That even if any irregularity attended the original allotment, he is in any event a bona fide purchaser for value without notice, fully entitled to the protection afforded by the law. The requirements for the doctrine of bona fide purchaser are well established in Kenyan law.
He relies on the case of Katende v Haridar & Company Ltd [2008] 2 EA 173, cited approvingly in Kenya Anti-Corruption Commission v Online Enterprises Limited & 4 Others [2019] eKLR, a bona fide purchaser must prove: (i) he holds a certificate of title; (ii) he purchased in good faith; (iii) he had no knowledge of any fraud; (iv) he purchased for valuable consideration (v) the vendors had apparent valid title; (vi) he purchased without notice of any fraud; and (vii) he was not party to the fraud. The Court of Appeal in Samuel Kamere v Lands Kajiado [2015] eKLR further held that a bona fide purchaser must show that he acquired a valid and legal title, carried out the necessary due diligence, and paid valuable consideration.
According to the 1st defendant, he satisfies every one of these requirements as he holds a Certificate of Lease (Exhibit ABIc) issued on 28th February 2018 by the Mombasa District Land Registry — a valid instrument of title. He purchased in good faith, through an Agreement for Sale drawn by qualified advocates, Balala & Abed Advocates, at a purchase price ofKshs. 3,800,000 — a sum consistent with a genuine commercial transaction. He had no knowledge of any fraud or irregularity. The Official Search (Exhibit AB2) showed a clear title with no adverse entries. He paid valuable consideration of Kshs. 3,800,000 as evidenced by the Agreement for Sale.
The vendor, Bridgitte Kidi Okoth, had apparent valid title as personal representative of the late Joseph Okoth Waudi, confirmed by the Transfer dated 14th December 2017.
He secured the written consent of the lessor — the County Government of Mombasa — as required by the restriction in the register (Exhibit AB3). This is the single most important due diligence step available to a purchaser of a leasehold title from the County Government. The County Government itself, by issuing that consent, affirmed the validity and lawfulness of the transaction. He was not party to any fraud. No particulars of fraud have been pleaded or proved against him personally.
The 1st defendant submits that Nakuru Water case [2019] KEELC 633 (KLR) can be distinguished from tis case as in Nakuru Water Case, the suit property was clearly and visibly adjacent to an operational water treatment plant, a physical circumstance that put any reasonable purchaser on inquiry. The Valuation Report in the present case confirms that the suit property was vacant at the date of inspection, zoned for commercial use, with access from the main tar-surfaced Likoni-Ukunda road and proximity to Rafiki Bank and the Total Petrol Station. The physical character of the neighbourhood signal-led a commercial zone, not a public reserve.
The 1st defendant submits that the decision in Flemish investment Limited v Town Council of Mariakani [20161 KECA 68 (KLR) is distinguishable. In that case, there was a publicly visible cattle dip standing on the suit property, a physical marker of public utility so obvious that the Court held it should have rang alarm bells." No equivalent visible marker of public use was present on the suit property here.
The defendants further argue that Dina Management Ltd v County Government of Mombasa & 5 Others [20231 KESC 30 (KLR) is also distinguishable from this case as the property in the former was proved to be public land.
The Supreme Court in Dina Management was careful to confine its holding to circumstances where the first allocation having been irregularly obtained" there was no valid legal interest to pass down the chain. In the present case, the Plaintiffs have not proved that the first allocation was irregularly obtained. They have not produced any letter showing a public reservation; they have not produced a gazette notice; they have not produced a survey plan designating the land for public use; and they have not produced a resolution of the Municipal Council setting apart this parcel. In those circumstances, the principle in Dina Management does not assist the Plaintiffs.
On the 1st defendant’s loss, he relies on the Valuation Report on the suit property, prepared by Rashid H. Share of Njihia Muoka Rashid Co. Ltd (Registered and practicing Valuer, Registered Valuer No. 344), sealed and signed on 10th June 2025, which is before this Court as part of the 1st Defendants evidence. It was prepared in accordance with Kenya Valuation Standards 2021 and International Standards effective 31st January 2024. The valuer physically inspected the property on 9th June 2025 and also examined cadastral survey maps, registry index maps, and folio registry index maps sourced from the Survey of Kenya.
The Report establishes the following key findings:
(i) The registered proprietor is Abdalla Ali Salim Bamahriz, P.O. Box 99944-80107, Mombasa.
(ii) No encumbrances were registered against the title as at the date of inspection.
(iii) The plot is zoned for commercial use.
(iv) The valuer examined the Ndungu Land Commission Report (Gazette Notice No. 6862 dated 17th July 2017) and confirmed that the property is not listed therein as irregularly acquired.
(v) Enquiries with the local planning authority, KAA, KR, NEMA, and highway authorities confirmed that the property is free from any existing public utility concern and does not fall within 400 metres of any reserved area.
(vi) The land area is 0.2000 hectares (0.49421 acres).
(vii) The plot was largely vacant as at the date of valuation, with boundaries marked by corner survey beacons, The topography is fairly level with a gentle eastward slope, o
within an area not susceptible to flooding.
(viii) The unimproved site value is Kshs. per hectare, attracting 14% commercial rates of Kshs. 25,900/= per annum — consistent with the rates receipts in evidence.
On the value of the land and loss of earnings, the Report certifies the following figures:
(i) Value of Land (0.02000 Hectares): Kenya Shillings Fifteen Million only (KES.
(ii) Loss of income since 2018 (assuming a building period of two years): Kenya Shillings Forty-Two Million Five Hundred and Seventy-Four Thousand Eight Hundred only per annum.
(iii) Loss of income for a five-year period: Kenya Shillings Two Hundred and Twelve Million Eight Hundred and Seventy-Four Thousand only.
(iv) Loss incurred in the construction of the perimeter wall fence: Kenya Shillings One Million Eight Hundred Thousand only.
These figures are grounded in a detailed income approach analysis based on the proposed Grade IIAII Business Development hub — consisting of a double-storeyed warehouse of 1,959.35 square metres (planned to house a supermarket as anchor tenant), five mini-shops, and five office spaces — with an envisaged gross rental income of Kshs. 4,174,000/ = per month and a projected net rental income of Kshs. 3,339,200/ = per month. The Report notes that the location — 280 met-res from the Likoni Ferry Channel, adjacent to Rafiki Bank Likoni Branch, on the main road to Ukunda — is strategically ideal for a commercial business hub, and that there is no ell-established supermarket in Likoni Sub-County, making the proposed development both commercial viable and of benefit to the local community.
The 1st Defendant respectfully submits that the valuation Report is expert evidence of the highest quality and should be accorded full weight. It is unchallenged and uncontroverted. The Plaintiffs called no expert witness. They tendered no valuation, no survey report, and no competing opinion on value or loss.
The 1st defendant relies on the case of David Bagine v Martin Bundi [1997] 1 eKLR — a case cited by the Plaintiffs themselves — the Court of Appeal held that a party cannot simply throw figures at the court and expect damages to be awarded. That principle cuts both ways: in the present case it is the 1st Defendant who has properly substantiated his loss with expert evidence, and it is the Plaintiffs who have provided nothing by way of rebuttal.
On the counter claim, the 1st defendant prays for a declaration that he is and remains the bona fide registered proprietor of the suit property. He further prays for General damages to be assessed by the Court for the unlawful interference with the suit property and loss of use since 2018. He prays for Special damages of Kshs. 1,800,000 the costs of materials and labour for the construction of the perimeter wall that was demolished by the Plaintiffs. He also prays for compensation for loss of earnings since 2018 based on the Valuation Report, namely Kshs. 42,574,800/= per annum, or such amount as the Court may assess. Lastly. He prays for costs of the Counterclaim together with interest thereon.
The 1st Defendant bought a registered leasehold title through a proper transaction with professional advocates, obtained the required consent, paid the purchase price, registered the transfer, and has been paying rates continuously. He is not a land grabber. He is a private citizen who lawfully invested his money in a commercial property through the established legal process. To be sued years later by persons with no documentary evidence of any recognised legal interest in his property, on the basis of informal public use of a vacant plot, constitutes precisely the kind of harassment that the courts have repeatedly condemned.
He contends that the Court of Appeal's remarks in Chemey Investment Ltd v AG & 2 Others [2018] eKLR are apposite. The Court observed that the sanctity of title cannot be a vehicle for fraud and illegalities, but equally, the court system cannot be weaponized by those with no documented legal interest to destroy the investments of persons who have acquired property through the proper legal channels. A balance must be struck, and that balance lies in requiring a challenger to the title to produce proper, documentary evidence of the alleged irregularity. The Plaintiffs have produced none.
Analysis and Determination
The first issue to be determined is whether the plaintiffs have the locus standi to bring the suit. I do find that the cause of action revolves on the Constitution of Kenya 2010 on the issue of public land and therefore a matter of great public interest. The plaintiffs are not suing for their own benefit but the great public benefit and therefore plaintiffs have locus standi to sue though they have approached the court by way of plaint as opposed to a petition. The fact that they have approached the court by way of plaint does not take away their capacity under Article 22 and 258 of the Constitution of Kenya 2010. Locus standi in simple terms, the right to appear or be heard in Kenya has shifted from a restrictive common law approach to a liberal, expansive approach under the 2010 Constitution. Articles 22 and 258 permit any person including those acting in the public interest to approach the court to defend the Constitution, reducing the requirement for a direct, personal grievance.
In Civil Application 29 of 2014, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR the learned Supreme Court Judges spoke to wide scope of locus standi in constitutional petitions as follows;”
“ .. the Constitution enlarges the capacity to le a claim in defence of the Constitution thereby laying the basis for rights and constitutional enforcement. Article 3(1) provides that “every person has an obligation to respect, uphold and defend this Constitution.”
It further defines “person” to “include a company, association or other body of persons whether incorporated or unincorporated.” the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, adopts the constitutional definition of person. Article 258(1) in turn provides that “every person has the right to institute court proceedings, claiming that this Constitution has been contravened or is threatened with contravention.” In constitutional
Adjudication therefore, the traditional strictures of locus have been broken to allow every person the capacity to file a constitutional claim
The second issue is whether the plaintiffs have proved that the suit parcel of land is public land.
On the second issue as to whether the plaintiffs have proved that the suit property is public land, I have considered the evidence on record and rival submissions and do find that the plaintiff had the burden to prove that the suit property is public land. The evidence relied upon by the plaintiffs are photos of people gathering on the suit property. These court observes that not all open spaces where members of public gather for social functions are public land.
Article 62(1) of the Constitution of Kenya 2010 describes public land as follows:-
(1) Public land is--
(a) land which at the effective date was un-alienated government land as defined by an Act of Parliament in force at the effective date;
(b) land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease;
(c) land transferred to the State by way of sale, reversion or surrender;
(d) land in respect of which no individual or community ownership can be established by any legal process;
(e) land in respect of which no heir can be identified by any legal process;
(f) all minerals and mineral oils as defined by law;
(g) government forests other than forests to which Article 63(2)(d)(i) applies, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas;
(h) all roads and thoroughfares provided for by an Act of Parliament;
(i) all rivers, lakes and other water bodies as defined by an Act of Parliament;
(j) the territorial sea, the exclusive economic zone and the sea bed;
(k) the continental shelf;
(l) all land between the high and low water marks;
(m) any land not classified as private or community land under this Constitution; and
(n) any other land declared to be public land by an Act of Parliament--
(i) in force at the effective date; or
(ii) enacted after the effective date.
The suit property does not fall within any of the above descriptions.
Article 62(2) provides that Public land shall vest in and be held by a County Government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission, if it is classified under--
(a) clause (1) (a), (c), (d) or (e); and
(b) clause (1) (b), other than land held, used or occupied by a national State organ.
Article 62((3)) provides that Public land classified under clause (1) (f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission.
Article 62 (4) provides that Public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use.
The suit parcel of land if found to be Public land would fall under land is held by a county government in trust for the people resident in the County and is administered by the National Land Commission that is if found to be un-alienated government land at the effective date. In this case, the National Land Commission was not made a party. The county Government of Mombasa was a party in this case but chose to file a generalised defence which was a mere denial and did not call any evidence.
The plaintiffs have produced photos of members of public using the land for political rallies and prayers and sports. The plaintiffs have no iota of documentary evidence that the parcel of land is un-alienated government as it then was and therefore public land. There is no tangible document produced by the plaintiffs to demonstrate that the land is public land. The plaintiffs ought to have produced the area survey plan and or gazette notice showing that the land was public land. They have not demonstrated that the suit property falls within the description of Article 62 of the Constitution of Kenya 2010. The burden of proof that the suit property is public land falls on the plaintiffs.
Section 107 of the Evidence Act Cap 80 Laws of Kenya provides for burden of proof. It is trite law that he who alleges must prove. In law the burden of proof lies upon the party who asserts the existence of a fact or set of facts. Section 107 of the Evidence Act Cap 80 Laws of Kenya provides as follows:-
“Burden of Proof-107(1) (whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person).”
In the case of Evans Nyakwana -vs- Cleophas Bwana Ongaro [2015] eKLR, it was held that:-
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(1) of the Evidence Act, Chapter 80, Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the law of proof of that fact shall lie on any particular person…………….”
In that respect, the Supreme Court case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR was relied on for the proposition that:
“The person who makes such an allegation must lead evidence to prove the fact. She or he bears the initial legal burden of proof which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already-discharged initial burden. “The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue” [Cross and Tapper on Evidence, (Oxford University Press, 12, 2010, page 124)]."
The 1st defendant states he purchased the property from one Bridgitte Akinyi Waudi. The 1st defendant produced a green card for the parcel of land that shows the following entries.
I have perused the white card and do find that the 1st edition of the register was opened on 4th September 1989 whereby the lessor was the Municipal Council of Mombasa whereas the lessee was Hamisi Musa Mwidani who was registered as a proprietor on 4th September 1989. The Map sheet used to open the register was MSA/MS/1. The second entry was Prabhilal J. Shah and Jitendra M Kamabhai. It is not clear which date the entry was made. A certificate of lease was issued to the two in the third entry. The 4th and 5th entries are in respect of Daleth Investments Ltd all on the 10th March 1993 when the company was registered as the proprietor of the land and a title issued. A caution was registered on the said date as entry no 6. On the 27th March 1993, the caution in entry no 6 was lifted in entry no 7. In a period of 17 years, a provisional certificate of lease was issued in entry no 8 on the 6th of September 2010 and on the same date in entry no 9 Joseph Okoth Waudi was registered as the owner of the land and a certificate of lease was issued on the same date.
The record changed 8 years later when Bridgitte Okoth and Victor Waudi were registered through transmission under R.L.19 on the 28.2. 2018 and on the same date the property was transferred to Bridgite Kidi Okoth. On the same date, the property was transferred to the 1st defendant and the certificate of lease was issued on the same date. The plaintiffs have questioned this speedy transactions. However, the court finds no evidence that these speedy transactions were illegal. The same do not show that the 1st defendant was acquiring public land illegally.
The plaintiffs have not established that the property was public land. On the other hand, the 1st defendant has proved that he has a title to the property acquired procedurally.
Section 26 of the Land Registration Act 2012 provides that the certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.
Article 40 [6] of the Constitution of Kenya 2010 provides that the rights under this Article do not extend to any property that has been found to have been unlawfully acquired.
The 1st defendant has proved that he is a registered owner of the suit property. The plaintiff have not demonstrated that the suit property is public land and therefore was unlawfully acquired. Ultimately, the suit has no basis and is dismissed with costs.
On the counter claim, the 1st defendant has claimed that he lost earnings, he relies on the Valuation Report on the suit property, prepared by Rashid H. Share of Njihia Muoka Rashid Co. Ltd (Registered and practicing Valuer, Registered Valuer No. 344), sealed and signed on 10th June 2025, which is before this Court as part of the 1st Defendants evidence. It was prepared in accordance with Kenya Valuation Standards 2021 and International Standards effective 31st January 2024. The valuer physically inspected the property on 9th June 2025 and also examined cadastral survey maps, registry index maps, and folio registry index maps sourced from the Survey of Kenya.
The Report establishes the following key findings:
(ix) The registered proprietor is Abdalla Ali Salim Bamahriz, P.O. Box 99944-80107, Mombasa.
(x) No encumbrances were registered against the title as at the date of inspection.
(xi) The plot is zoned for commercial use.
(xii) The valuer examined the Ndungu Land Commission Report (Gazette Notice No. 6862 dated 17th July 2017) and confirmed that the property is not listed therein as irregularly acquired.
(xiii) Enquiries with the local planning authority, KAA, KR, NEMA, and highway authorities confirmed that the property is free from any existing public utility concern and does not fall within 400 metres of any reserved area.
(xiv) The land area is 0.2000 hectares (0.49421 acres).
(xv) The plot was largely vacant as at the date of valuation, with boundaries marked by corner survey beacons, The topography is fairly level with a gentle eastward slope, o
within an area not susceptible to flooding.
(xvi) The unimproved site value is Kshs. per hectare, attracting 14% commercial rates of Kshs. 25,900/= per annum — consistent with the rates receipts in evidence.
On the value of the land and loss of earnings, the Report certifies the following figures:
(v) Value of Land (0.02000 Hectares): Kenya Shillings Fifteen Million only (KES.
(vi) Loss of income since 2018 (assuming a building period of two years): Kenya Shillings Forty-Two Million Five Hundred and Seventy-Four Thousand Eight Hundred only per annum.
(vii) Loss of income for a five-year period: Kenya Shillings Two Hundred and Twelve Million Eight Hundred and Seventy-Four Thousand only.
(viii) Loss incurred in the construction of the perimeter wall fence: Kenya Shillings One Million Eight Hundred Thousand only.
These figures are grounded in a detailed income approach analysis based on the proposed Grade IIAII Business Development hub — consisting of a double-storeyed warehouse of 1,959.35 square metres (planned to house a supermarket as anchor tenant), five mini-shops, and five office spaces — with an envisaged gross rental income of Kshs. 4,174,000/ = per month and a projected net rental income of Kshs. 3,339,200/ = per month. The Report notes that the location — 280 met-res from the Likoni Ferry Channel, adjacent to Rafiki Bank Likoni Branch, on the main road to Ukunda — is strategically ideal for a commercial business hub, and that there is no ell-established supermarket in Likoni Sub-County, making the proposed development both commercially viable and of benefit to the local community.
The 1st Defendant respectfully submits that he has produced a valuation report which is expert evidence of the highest quality and should be accorded full weight. It is unchallenged and uncontroverted. The Plaintiffs called no expert witness. They tendered no valuation, no survey report, and no competing opinion on value or loss. In David Bagine v Martin Bundi [19971 eKLR — a case cited by the Plaintiffs themselves — the Court of Appeal held that a party cannot simply throw figures at the court and expect damages to be awarded. That principle cuts both ways: in the present case it is the 1st Defendant who has properly substantiated his loss with expert evidence, and it is the Plaintiffs who have provided nothing by way of rebuttal.
On the counter claim, the 1st defendant prays for a declaration that he is and remains the bona fide registered proprietor of the suit property. He further pray for General damages to be assessed by the Court for the unlawful interference with the suit property and loss of use since 2018. He prays for Special damages of Kshs. 1,800,000 the costs of materials and labour for the construction of the perimeter wall that was demolished by the Plaintiffs. He also prays for compensation for loss of earnings since 2018 based on the Valuation Report, namely Kshs. 42,574,800/= per annum, or such amount as the Court may assess. Lastly. He prays for costs of the Counterclaim together with interest thereon.
I do grant the counterclaim in terms of a declaration that the 1st defendant is the bona fide proprietor of all that is parcel number MOMBASA/M.S/BLOCK 1 /1592. On special damages of ksh 1,800,000, the 1st defendant has not specially proved that he suffered special damages of that amount and therefore the claim for special damages is disallowed.
On general damages, I do find that the parcel of land has been in use by the general public and not the plaintiffs and therefore the plaintiffs cannot be liable and penalised for general damages on behalf of the general public. On costs, I do find that the suit was filed in public interest and therefore each party should bear own costs. Orders accordingly.
Salim Salim Mwabalahe, Juma Hassan Nondo, Yusuf Maguti Odhiambo, Ali Idris, Mwinyi Ali Said and Rama Hamisi residents of Likoni area within Mombasa County (hereinafter referred to as plaintiffs) have come to this court against Abdala Bamahriz and County Government of Mombasa (hereinafter referred to as the defendants). They bring this suit on their own behalf and on behalf of the general community members of the Likoni Area and the general public at large.
The plaintiffs state that the 2nd defendant is the owner as custodian of Land Parcel Number M/S/Block1/1592 (hereinafter referred to as the suit land) for the general public and inhabitants of Mombasa County which has allegedly been leased out to the 1st defendant.
The plaintiffs state that the suit land is public land as defined in Article 62 of the Constitution of Kenya 2010 and part II of the Land Act 2012. The Plaintiffs state that the 2nd Defendant has illegally and un-procedurally alienated and allocated the Suit Land which is Public Land to the 1st Defendant to the detriment of the Plaintiffs and the general public at large.
The Plaintiffs state that the entire community within Likoni area stands to suffer irreparable loss if the construction activities of the 1st Defendant already commenced on the Suit Property are not stopped by this Honourable Court. The Plaintiffs' case against the Defendants is for a declaration that the alienation and allocation of the suit property by the 2nd Defendant to the 1st Defendant is null and void. The Plaintiffs state that despite demand and notice of intention to sue having been served the 1st Defendant has refused to comply and stop his activities on the said parcel of Land.
The plaintiffs ultimately pray for a declaration that the alienation and allocation of the suit property by the 2nd Defendants to the 1st Defendant is null and void. They urge this court to order the Defendants to surrender and/or tender vacant possession of the suit property to the Likoni Community. Last but not least, the plaintiffs pray for the costs of this suit.
The 1st Defendant filed amended defence and counterclaim dated 26th June 2025 whose import is that the plaintiffs have not filed the suit on behalf of the entire community but for themselves. The 1st defendant states that the suit property was leased to 1st defendant by the 2nd defendant for a term of 99 years. According to the 1st defendant, the suit property is not public land but it is private land alienated in 1971.
The 1st defendant states that on 8th February 2018, he purchased the suit property from one Bridgitte Kidi Okoth the daughter and beneficiary of the estate of the late Joseph Okoth Waudi the then owner of the suit property. The 1st defendant avers that he executed an agreement for sale of the suit property at a consideration of Kshs3,800,000 [Three million, eight hundred thousand shillings] on the 8th February 2018, and that the said agreement was executed after he had conducted his due diligence with regards to ownership. That an executed transfer instrument dated 8th February 2018 was lodged at the land registrar’s office submitted together with the requisite documents to wit; the sale agreement, consent and transfer by personal representative to person entitled under a will or on an intestacy dated 14th December 2017, and the same was registered on the 28th February 2018. Subsequently a certificate of lease confirming the 1st defendant as the registered proprietor was issued on the 28th February 2018. A post transfer search on the suit parcel of land was conducted on the 28th February 2018 which confirmed successful transfer to the 1st defendant.
The 1st defendant states that in light of the foregoing, he is the registered owner of the suit property, having lawfully purchased the same from a previous owner who is not a party to the instant suit and holds a certificate of lease valid for 99 years. The said land was a subdivision scheme carried out by the Municipal Council of Mombasa in 1971, giving rise to Plot Number 1591 currently owned by Rafiki Bank] and the suit property and 1584 owned by Total Petrol Station. The 1st defendant further states that he has, ever since the purchase, promptly and without fail been paying the relevant and rates to the 2nd defendant herein.
The 1st defendant laments that sometimes in 2018, he constructed a boundary and or perimeter wall only for it to be brought down by the plaintiffs herein, with the support of their elected leaders making the defendant/applicant to suffer losses. The Particulars of special damages are materials and labour costs for the construction of a perimeter wall Kshs1,800,000/=
The 1st defendant further avers that the plaintiffs have unlawfully, and without authority used the said suit land as a playground for football matches making it hard for him to build a business hub consisting of a double storeyed warehouse, thus leaving the said suit property unutilized and undeveloped.
The 1st defendant states that he purchased the suit property with the sole intentions of setting up a business hub consisting of a double storeyed warehouse, to house a supermarket, a paved concrete yard having adequate parking bays for customers and five mini shops in the front yard with staircase to five office spaces both with plinth areas of 1959.35 square metres, which would have been leased for a monthly net rental income of Kshs3,339,200.
The 1st defendant claims that in 2023, he decided to rebuild the perimeter wall but the same was met with resistance from the plaintiffs herein. He asserts that by reason of the foregoing, he has suffered damages in terms of loss of income for rent for 5 years to a tune of Kshs200,352,000.
The defendant prays for a declaration that he remains the bona fide proprietors of the suit property. Moreover, that general damages be awarded to the 1st defendant against the plaintiffs for their forceful use of the suit property. Lastly, that Special damages of Ksh 1,800,000.00 be awarded to the 1st defendant against the plaintiffs. That costs of the suit and counterclaim to be awarded to the 1st defendant.
The 2nd defendant filed defence whose gist is that the 1st defendant is a stranger to the 2nd defendant and that the 2nd defendant has not allocated the suit property to the 1st defendant. That the plaintiffs did not report to the 2nd defendant the construction of structures on the suit property.
Plaintiffs’ Evidence
When the matter came up for hearing PW1 Salim Salim Mwabalehe stated on oath that suit Parcel of Land is situate adjacent to the Mombasa Lungalunga Road. That the said Parcel of Land is used by the entire community of Likoni Area for several social activities including prayers, crusades, political rallies and as a playground for students from adjacent schools in the neighbourhood among others. That the 1st Defendant herein has without any authority encroached on the said Parcel of Land had has commenced to erect structures thereon.
The community in the area stands to suffer irreparably if the Defendant is not stopped from carrying out his construction activities on the said Land. That they have reported the Defendant's activities to various Government offices but no action has been taken. The community in the area stands to suffer loss of an important meeting centre through the Defendant's current construction activities.
The plaintiffs produced several pictures in court in support of their case which pictures depict several social events taking place on the said Parcel of Land. According to the plaintiffs, the Defendant actually knows that what he is doing is not right since he has enlisted the presence and security of the Kenya Police Officers form Likoni Police Station to stand guard as the illegal construction works are carried out. The Defendant cannot and could not have been allocated the said Parcel of Land since it has been and it is well known to be a public Land for public activities just like other public lands within the Mombasa County that are used for similar activities. On cross examination by Mr Gitonga, he states that he has no title for the land and that there is no committee dealing with the land. On cross examination by Mr Tajbhai the learned County Attorney, he states that he has no papers showing that the land belongs to the community.
PW2 Ali Idris a resident of Likoni area of Mombasa County, testified that he is a Chairman of several Mosques situate within Likoni area. He knows the Parcel of Land pertaining to the case herein very well. That over the years they usually and normally hold their religious festivities including prayers on the open grounds on which the 1st Defendant named in this Suit has encroached and has commenced construction works thereon. The inhabitants of Likoni area and in particular the worshippers of all the mosques situate within Likoni Area stand to suffer irreparable loss as they will be having no place for worshipping and to carry out their religious activities and festivities. The 2nd Defendant has a duty as the custodian of the Suit Property to ensure that the same is used for maximum benefit to the society and community at large and not by an individual.
Defendant’s Evidence.
The 1st defendant in his evidence in chief stated that on or about 8th February 2018 after doing due diligence with the help of an advocate, he entered into an agreement for the sale of suit property with Bridgitte Kidi Okoth, the Daughter and beneficiary to the estate of the Late Joseph Okoth Waudi, the then registered owner of the suit Property. That an official search of the official search done on 5th December 2017 showed the Late Joseph Okoth Waudi as the registered owner of the suit property That further investigations of the suit property led the 1st defendant to the County Government of Mombasa. A draft Private Valuation done in 2011, showed that the suit property was owned by Joseph Okoth Waudi now deceased. That after the death of Joseph Okoth Waudi, the suit property was transferred to Bridgitte Kidi Okoth, vide a Transfer by Personal Representative to Person Entitled under a Will or on an Intestacy Instrument dated 14th December 2017.
The 1st defendant states that after executing the Agreement of Sale dated 8th February 2018 between himself and Bridgitte Kidi Okoth, a transfer of lease was registered on the same date and a certificate of Lease for a term of 99 years, starting 1st August 1971 was issued in his name on 28th February 2018. That he immediately did a post Transfer search on the suit property on the 28th February 2018 which confirmed that the transfer was successful and that he was the sole proprietor of the property. That since the issuance of the Certificate of Lease in his name, he has been paying all land rents and charges to the County Government of Mombasa in full.
He avers that the suit property was part of the land that came out of the subdivision Scheme carried out by the Municipal Council of Mombasa in 1971 giving rise to plot Number 1591 which is currently owned by Rafiki Bank, the suit property and 1584 currently owned by Total Petrol Station. He purchased the suit property with the intention of constructing and or developing a Business Mall measuring 1959.35m2 due to the property's proximity to the road.
The mall would have earned him Ksh 3,339,200.00 per month, which is the reasonable price for leasing out spaces and or property. That he has therefore lost approximately Ksh 212,874,000.00 being the rent he would have collected for the 5 years from the suit property since 2018.
That after purchasing the property, he began to develop it by constructing a perimeter wall which was brought down by the plaintiffs with the help of their political leaders. The cost of the perimeter wall was Ksh 1,800,000.00 which included materials and labour cost
He states that in 2023, he decided to rebuild the perimeter wall but the same was met with resistance from the plaintiffs' herein. He has been unable to utilize the property as the plaintiffs have made it difficult for him and or his agents, to use and or develop the suit property, by frustrating any attempt he makes to secure the property thus making him incur loss of income from the property. That contrary to the plaintiffs' believes, the suit property is not a public Land as it was alienated and leased out as private land for 99 years, by the then Municipal Council of Mombasa on 1st August 1971.
The county government of Mombasa classifies the suit property as private land and or property and the same is evident from the Valuation of private properties done by the County Government of Mombasa in 2011 at page 21, and from the letter Ref MCG/HR/LND/15/3, dated 20th June 2023 by the Mombasa County Secretary and head of Public Service, one Mr Jeizan Faruk.
The defendant believes that the plaintiffs' Claim is misplaced and without any factual and or backing of the law, and prays that the Plaintiffs' amended plaint be dismissed with costs and his counter claim be allowed as prayed. The 2nd defendant opted not to call any evidence.
Plaintiffs' Written Submissions
On whether or not the plaintiffs have the locus standi to institute this suit, the plaintiff submits that this suit was instituted challenging the allocation of the suit property to the 1st Defendant, which property is public land as testified by the Plaintiffs and further that the County Government was holding the property in trust of the residents of the larger Mombasa County. The Plaintiffs are residents of Likoni Area where the suit property is situated and have utilized the suit property for public purposes and even their fore fathers used the property for public purposes including rallies, sports activities, prayers and charity events and were surprised when in 2018 the 1st Defendant began constructing a perimeter wall as a private developer hence the institution of the suit.
The interest of the Plaintiffs is that they are members of the Likoni Community protecting their rights to public land. Their interest as members of the public is for the protection of public land rights and the illegal acquisition of the suit property to private individuals. They urge the Honourable Court to find that the Plaintiffs have the locus standi to institute and sustain this case.
On whether the 1st defendant conducted due diligence before the purchase of the suit property the plaintiff submits that whereas the 1st Defendant testified that he conducted his due diligence by evidence of a Search, due diligence was not done, and had it been done, the 1st Defendant ought to have noted that the suit property was public land. Part of the 1st Defendant's due diligence was to ascertain the history of the suit property and how the same was originally allocated. Similarly, his due diligence ought to have involved inquiries from the members of the public who are neighbours to the property so as to ascertain its status.
The plaintiff submits that in the current times, it is not enough to rely on the Search as proof of having conducted due diligence. The plaintiff relies on the decision In Nakuru Water And Sanitation Services Company Limited V Prakash Shah & Another 120191 KEELC 633 (Klr) where the court had the following to say;
"One can only claim to be an innocent purchaser for value if he can demonstrate that he did due diligence and it was not fathomable that it was possible to discern the predecessors defective title. In our case, a simple investigation of the head lease would have revealed the conditions which I have copied above, and would have put any reasonable purchaser into inquiry. At some point in my life, I would have thought that a simple search is good enough but I am prepared to change that opinion. I think that given where we stand as a country, and given the prevalence of land fraud, it behoves upon a purchaser to go beyond a mere search when investigating title. "
The plaintiffs contend that the fact that the suit property was being used by the public, due diligence by the 1st Defendant ought to have gone further than just conducting a search. The 1st Defendant ought to have noticed that the suit property was being used by the public and that the lessor was the county government and at least attempted to get the initial lease. The Plaintiffs testified that the suit property was being used by students as a football pitch, and the same is acknowledged in the 1st Defendant's letter dated 20th June 2023 produced as exhibit no 11. By the mere fact that this is the position as noted by the Letter of the County Secretary, the 1st Defendant ought to have been extra careful and done more that obtaining a search on the suit property. He ought to have gone further and established the history of the suit property, and particularly ascertain whether the original allottee legally and procedurally acquired the suit property. The plaintiffs are guided by the binding decision of the Court of Appeal in Chemey Investment Ltd Vs Ag & 2 Others [20181 Eklr where it was held that;
"We have noted that the Ekima Junior Academy never took possession of the suit property. It therefore means that when the appellant purported to purchase the same, the suit property was in the same condition it was when it was initially allocated, namely in use for public purposes. We ask ourselves, which innocent purchaser, without notice, would accept to purchase a property that is being used for public purposes, just next to the provincial headquarters and the law courts, without any form of inquiry". As this court stated in Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others (Supra), only a foolhardy, and we may add, a careless or fraudulent investor would purchase land such as the suit property "with the alacrity of a potato dealer in Wakulima Market".
The plaintiffs also rely on the binding decision of the Court of Appeal decision in Flemish Investments Limited V Town Council Of Mariakani [20161 Keca 68 (Klr) where the court held that;
"A bona fide purchaser exercising due diligence would be expected to inspect the property he is buying, to ascertain its physical location, persons, if any, in occupation, developments, buildings and fixtures thereon, among others. If indeed the appellant honestly believed that Plot No. 34 and the cattle dip on it were part of the suit property, he would have rehabilitated the cattle dip as his property, or simply demolished it, not to pester the respondent for its relocation. For a party who was buying a commercial property rather than a ranch, the presence of a cattle dip on the property should have rang alarm bells. "
The plaintiffs therefore contend that the 1st Defendant failed to conduct proper due diligence to ascertain the actual status and ownership of the suit property and as such cannot rely on the doctrine of bona fide purchaser for value.
The plaintiffs further submit that due process was not followed when acquiring the property. That for a party to acquire public land, there was a process to be followed. The plaintiffs submit that there is no evidence that there was a letter of allocation of the land to the 1st entry in the white card. That there is no evidence of rates paid before registration to the 1st allottee. The plaintiff submits that there is no evidence of the transactions between 1971 when the lease was registered and 1989 when the certificate was issued. The plaintiff argues that to validate the title held by the 1st defendant, we should interrogate how the head lease was acquired.
The plaintiff argue that the documents produced by the 1st defendant have inconsistencies as the certificate of lease shows that the register was opened on the 6th September 2010 whereas the white card shows that the register was opened on the 4th of September 1989. The plaintiffs submit that it is interesting that entries number 11 to 14 were made on the same date.
1ST DEFENDANTS WRITTEN SUBMISSIONS
The 1st Defendant submits that the Plaintiffs have no legal standing to institute and prosecute this suit. The Plaintiffs are six named individuals who claim to be residents of the Likoni area and other than bare assertions of residency and generalized statements that the suit property is used for football, prayers, and public gatherings, they have not established any specific, cognizable proprietary, statutory, or constitutional right in the suit property that is legally distinct from the interest of the general public.
The Plaintiffs rely on Articles 22 and 25 of the Constitution of Kenya, 2010 to assert public interest standing. However, the constitutional broadening of access to justice does not dispense with the requirement of demonstrating a genuine and articulable interest. Critically, the Plaintiffs produced no gazette notice, no survey plan, no deed plan, no resolution of the Municipal Council of Mombasa, and no other official document establishing that the suit land was ever formally set apart, reserved, or designated for public use in any legally recognized manner. The evidence of PW1 and PW2 amounts to nothing more than testimony that members of the public have used a vacant piece of land over the years which is entirely different from the land having been lawfully reserved for public use.
According to the defendant, the distinction is material. In the cases relied upon by the Plaintiffs themselves — particularly Nakuru Water and Sanitation Services Company Limited v Prakash Shah & Another [20191 KEELC 633 (KLR), Chemey Investment Ltd v AG & 2 Others [2018] EKLR, and Flemish investment Limited v Town Council of Mariakani [2016] KECA 68 (KLR) — the public status of the land in question was established by concrete documentary evidence: original grants with special conditions, deeds of setting apart, resolutions of county councils, gazette notices, or survey plans bearing designations
for public use. None of that exists here. The Plaintiffs' suit is therefore a bare collateral attack on a registered title, unsupported by the documentary foundation that the law requires.
The 1st Defendant further notes that this suit was filed in 2018 as an ordinary civil suit by way of plaint, not as a constitutional petition. The Plaintiffs cannot import constitutional standing through submissions alone, having chosen to proceed by way of ordinary civil action. In this regard, the Court is invited to note that the 1st Defendant has been attending court since 2018 and the question of locus standi has been a live issue since the Notice of Motion Application dated 9th April 2024. The Plaintiffs own submissions acknowledge that their interest is that of "members of the Likoni community protecting their rights to public land. This is precisely the kind of generalized public interest claim that, in the absence of documentary proof of a formal public designation, cannot displace a duly registered title.
The 1st defendant submits that due process was followed in the acquisition of the suit property. The Plaintiffs submission that the original allocation of the suit property was not procedural is made without any supporting evidence. The documentary record before this Court tells a different and compelling story.
The White Card/ Green Card Register shows that the register for the suit property was opened on 4th September 1989. The Municipal Council of Mombasa is the lessor. The Certificate of Lease confirms a 99-year leasehold term commencing 1st August 1971. The subdivision scheme that created this plot was carried out by the Municipal Council of Mombasa in 1971, giving rise to Plot 1591 (currently registered to Rafiki Bank), Plot 1592 (the suit property), and Plot 1584 (currently occupied by Total Station). That these neighbouring plots are occupied by a bank and a petrol station respectively is itself cogent evidence that this was a legitimate commercial subdivision not a public reserve.
The 1st defendant relies on the valuation Report by Rashid H. Share of Njihia Muoka Rashid Co. Ltd (Registered Valuer No. 344), sealed and signed on 10th June 2025, confirms under the heading 'Public Utility Concern" that the valuers examined the relevant survey maps and title searches, consulted the Ndungu Land Commission Report (which includes Gazette Notice No. 6862 dated 17th July 2017), and made enquiries with the local planning authority, the highway authorities, the Kenya Airports Authority (KAA), Kenya Railways (IQ), and the National Environmental Management Authority (NEMA). Their finding is unequivocal: the property is private property and there is no evidence that it has ever been set aside for any public use. The plot does not fall within 400 metres of any area reserved for an airport, road, new railway, or wetland. The plot is zoned for commercial use. There are no encumbrances registered against the title.
The 1st Defendant emphasizes the significance of this finding as the Valuation Report was prepared by an independent, registered professional valuer acting in accordance with Kenya Valuation Standards 2021 and International Valuation Standards effective January 2024. It is the only expert evidence before the Court on the physical and legal character of the suit property. The Plaintiffs adduced no expert evidence whatsoever — no valuation, no survey report, no physical planning opinion — to counter it.
In contrast, the Plaintiffs produced photographs and excerpts from newspaper cuttings, which are not admissible as proof of the legal status of land and carry no evidentiary weight in establishing a formal public reservation. The principle is settled: the legal status of land is determined by the register and the instruments of title, not by informal use or media coverage.
The 1st Defendant submits that any discrepancy is adequately explained by the history of the title: the land was originally leased in 1971, the register was opened on 4th September 1989 under the Registered Land Act regime, and the certificate of lease was issued to the 1st Defendant on 28th February 2018 following the transfer from the previous registered proprietor. These are three distinct administrative events in the life of the title, not evidence of fraud. The Plaintiffs have failed to call any officer from the Lands Registry to testify that any entry is irregular, and the 2nd Defendant who is the lessor and best placed to challenge any irregularity in the title it issued, has remained completely silent, filing no defense and calling no witness.
The 1st defendant submits that the silence of the 2nd Defendant is determinative.
The Plaintiffs seek a declaration that the allocation of the suit property by the 2nd Defendant to the 1st Defendant is null and void yet the 2nd Defendant whose own County Secretary wrote on 20th June 2023 confirming the 1st Defendant's registration, and whose officers approved the Consent to Transfer, has not challenged the title it issued. It is a fundamental principle that a grantor cannot easily challenge the validity of a grant it made. If there were any irregularity in the original allotment it was for the 2nd Defendant to lead evidence of it. It has chosen not to do so.
The 1st defendant submits that he is a bona fide purchaser for value without notice. That even if any irregularity attended the original allotment, he is in any event a bona fide purchaser for value without notice, fully entitled to the protection afforded by the law. The requirements for the doctrine of bona fide purchaser are well established in Kenyan law.
He relies on the case of Katende v Haridar & Company Ltd [2008] 2 EA 173, cited approvingly in Kenya Anti-Corruption Commission v Online Enterprises Limited & 4 Others [2019] eKLR, a bona fide purchaser must prove: (i) he holds a certificate of title; (ii) he purchased in good faith; (iii) he had no knowledge of any fraud; (iv) he purchased for valuable consideration (v) the vendors had apparent valid title; (vi) he purchased without notice of any fraud; and (vii) he was not party to the fraud. The Court of Appeal in Samuel Kamere v Lands Kajiado [2015] eKLR further held that a bona fide purchaser must show that he acquired a valid and legal title, carried out the necessary due diligence, and paid valuable consideration.
According to the 1st defendant, he satisfies every one of these requirements as he holds a Certificate of Lease (Exhibit ABIc) issued on 28th February 2018 by the Mombasa District Land Registry — a valid instrument of title. He purchased in good faith, through an Agreement for Sale drawn by qualified advocates, Balala & Abed Advocates, at a purchase price ofKshs. 3,800,000 — a sum consistent with a genuine commercial transaction. He had no knowledge of any fraud or irregularity. The Official Search (Exhibit AB2) showed a clear title with no adverse entries. He paid valuable consideration of Kshs. 3,800,000 as evidenced by the Agreement for Sale.
The vendor, Bridgitte Kidi Okoth, had apparent valid title as personal representative of the late Joseph Okoth Waudi, confirmed by the Transfer dated 14th December 2017.
He secured the written consent of the lessor — the County Government of Mombasa — as required by the restriction in the register (Exhibit AB3). This is the single most important due diligence step available to a purchaser of a leasehold title from the County Government. The County Government itself, by issuing that consent, affirmed the validity and lawfulness of the transaction. He was not party to any fraud. No particulars of fraud have been pleaded or proved against him personally.
The 1st defendant submits that Nakuru Water case [2019] KEELC 633 (KLR) can be distinguished from tis case as in Nakuru Water Case, the suit property was clearly and visibly adjacent to an operational water treatment plant, a physical circumstance that put any reasonable purchaser on inquiry. The Valuation Report in the present case confirms that the suit property was vacant at the date of inspection, zoned for commercial use, with access from the main tar-surfaced Likoni-Ukunda road and proximity to Rafiki Bank and the Total Petrol Station. The physical character of the neighbourhood signal-led a commercial zone, not a public reserve.
The 1st defendant submits that the decision in Flemish investment Limited v Town Council of Mariakani [20161 KECA 68 (KLR) is distinguishable. In that case, there was a publicly visible cattle dip standing on the suit property, a physical marker of public utility so obvious that the Court held it should have rang alarm bells." No equivalent visible marker of public use was present on the suit property here.
The defendants further argue that Dina Management Ltd v County Government of Mombasa & 5 Others [20231 KESC 30 (KLR) is also distinguishable from this case as the property in the former was proved to be public land.
The Supreme Court in Dina Management was careful to confine its holding to circumstances where the first allocation having been irregularly obtained" there was no valid legal interest to pass down the chain. In the present case, the Plaintiffs have not proved that the first allocation was irregularly obtained. They have not produced any letter showing a public reservation; they have not produced a gazette notice; they have not produced a survey plan designating the land for public use; and they have not produced a resolution of the Municipal Council setting apart this parcel. In those circumstances, the principle in Dina Management does not assist the Plaintiffs.
On the 1st defendant’s loss, he relies on the Valuation Report on the suit property, prepared by Rashid H. Share of Njihia Muoka Rashid Co. Ltd (Registered and practicing Valuer, Registered Valuer No. 344), sealed and signed on 10th June 2025, which is before this Court as part of the 1st Defendants evidence. It was prepared in accordance with Kenya Valuation Standards 2021 and International Standards effective 31st January 2024. The valuer physically inspected the property on 9th June 2025 and also examined cadastral survey maps, registry index maps, and folio registry index maps sourced from the Survey of Kenya.
The Report establishes the following key findings:
(i) The registered proprietor is Abdalla Ali Salim Bamahriz, P.O. Box 99944-80107, Mombasa.
(ii) No encumbrances were registered against the title as at the date of inspection.
(iii) The plot is zoned for commercial use.
(iv) The valuer examined the Ndungu Land Commission Report (Gazette Notice No. 6862 dated 17th July 2017) and confirmed that the property is not listed therein as irregularly acquired.
(v) Enquiries with the local planning authority, KAA, KR, NEMA, and highway authorities confirmed that the property is free from any existing public utility concern and does not fall within 400 metres of any reserved area.
(vi) The land area is 0.2000 hectares (0.49421 acres).
(vii) The plot was largely vacant as at the date of valuation, with boundaries marked by corner survey beacons, The topography is fairly level with a gentle eastward slope, o
within an area not susceptible to flooding.
(viii) The unimproved site value is Kshs. per hectare, attracting 14% commercial rates of Kshs. 25,900/= per annum — consistent with the rates receipts in evidence.
On the value of the land and loss of earnings, the Report certifies the following figures:
(i) Value of Land (0.02000 Hectares): Kenya Shillings Fifteen Million only (KES.
(ii) Loss of income since 2018 (assuming a building period of two years): Kenya Shillings Forty-Two Million Five Hundred and Seventy-Four Thousand Eight Hundred only per annum.
(iii) Loss of income for a five-year period: Kenya Shillings Two Hundred and Twelve Million Eight Hundred and Seventy-Four Thousand only.
(iv) Loss incurred in the construction of the perimeter wall fence: Kenya Shillings One Million Eight Hundred Thousand only.
These figures are grounded in a detailed income approach analysis based on the proposed Grade IIAII Business Development hub — consisting of a double-storeyed warehouse of 1,959.35 square metres (planned to house a supermarket as anchor tenant), five mini-shops, and five office spaces — with an envisaged gross rental income of Kshs. 4,174,000/ = per month and a projected net rental income of Kshs. 3,339,200/ = per month. The Report notes that the location — 280 met-res from the Likoni Ferry Channel, adjacent to Rafiki Bank Likoni Branch, on the main road to Ukunda — is strategically ideal for a commercial business hub, and that there is no ell-established supermarket in Likoni Sub-County, making the proposed development both commercial viable and of benefit to the local community.
The 1st Defendant respectfully submits that the valuation Report is expert evidence of the highest quality and should be accorded full weight. It is unchallenged and uncontroverted. The Plaintiffs called no expert witness. They tendered no valuation, no survey report, and no competing opinion on value or loss.
The 1st defendant relies on the case of David Bagine v Martin Bundi [1997] 1 eKLR — a case cited by the Plaintiffs themselves — the Court of Appeal held that a party cannot simply throw figures at the court and expect damages to be awarded. That principle cuts both ways: in the present case it is the 1st Defendant who has properly substantiated his loss with expert evidence, and it is the Plaintiffs who have provided nothing by way of rebuttal.
On the counter claim, the 1st defendant prays for a declaration that he is and remains the bona fide registered proprietor of the suit property. He further prays for General damages to be assessed by the Court for the unlawful interference with the suit property and loss of use since 2018. He prays for Special damages of Kshs. 1,800,000 the costs of materials and labour for the construction of the perimeter wall that was demolished by the Plaintiffs. He also prays for compensation for loss of earnings since 2018 based on the Valuation Report, namely Kshs. 42,574,800/= per annum, or such amount as the Court may assess. Lastly. He prays for costs of the Counterclaim together with interest thereon.
The 1st Defendant bought a registered leasehold title through a proper transaction with professional advocates, obtained the required consent, paid the purchase price, registered the transfer, and has been paying rates continuously. He is not a land grabber. He is a private citizen who lawfully invested his money in a commercial property through the established legal process. To be sued years later by persons with no documentary evidence of any recognised legal interest in his property, on the basis of informal public use of a vacant plot, constitutes precisely the kind of harassment that the courts have repeatedly condemned.
He contends that the Court of Appeal's remarks in Chemey Investment Ltd v AG & 2 Others [2018] eKLR are apposite. The Court observed that the sanctity of title cannot be a vehicle for fraud and illegalities, but equally, the court system cannot be weaponized by those with no documented legal interest to destroy the investments of persons who have acquired property through the proper legal channels. A balance must be struck, and that balance lies in requiring a challenger to the title to produce proper, documentary evidence of the alleged irregularity. The Plaintiffs have produced none.
Analysis and Determination
The first issue to be determined is whether the plaintiffs have the locus standi to bring the suit. I do find that the cause of action revolves on the Constitution of Kenya 2010 on the issue of public land and therefore a matter of great public interest. The plaintiffs are not suing for their own benefit but the great public benefit and therefore plaintiffs have locus standi to sue though they have approached the court by way of plaint as opposed to a petition. The fact that they have approached the court by way of plaint does not take away their capacity under Article 22 and 258 of the Constitution of Kenya 2010. Locus standi in simple terms, the right to appear or be heard in Kenya has shifted from a restrictive common law approach to a liberal, expansive approach under the 2010 Constitution. Articles 22 and 258 permit any person including those acting in the public interest to approach the court to defend the Constitution, reducing the requirement for a direct, personal grievance.
In Civil Application 29 of 2014, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR the learned Supreme Court Judges spoke to wide scope of locus standi in constitutional petitions as follows;”
“ .. the Constitution enlarges the capacity to le a claim in defence of the Constitution thereby laying the basis for rights and constitutional enforcement. Article 3(1) provides that “every person has an obligation to respect, uphold and defend this Constitution.”
It further defines “person” to “include a company, association or other body of persons whether incorporated or unincorporated.” the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, adopts the constitutional definition of person. Article 258(1) in turn provides that “every person has the right to institute court proceedings, claiming that this Constitution has been contravened or is threatened with contravention.” In constitutional
Adjudication therefore, the traditional strictures of locus have been broken to allow every person the capacity to file a constitutional claim
The second issue is whether the plaintiffs have proved that the suit parcel of land is public land.
On the second issue as to whether the plaintiffs have proved that the suit property is public land, I have considered the evidence on record and rival submissions and do find that the plaintiff had the burden to prove that the suit property is public land. The evidence relied upon by the plaintiffs are photos of people gathering on the suit property. These court observes that not all open spaces where members of public gather for social functions are public land.
Article 62(1) of the Constitution of Kenya 2010 describes public land as follows:-
(1) Public land is--
(a) land which at the effective date was un-alienated government land as defined by an Act of Parliament in force at the effective date;
(b) land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease;
(c) land transferred to the State by way of sale, reversion or surrender;
(d) land in respect of which no individual or community ownership can be established by any legal process;
(e) land in respect of which no heir can be identified by any legal process;
(f) all minerals and mineral oils as defined by law;
(g) government forests other than forests to which Article 63(2)(d)(i) applies, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas;
(h) all roads and thoroughfares provided for by an Act of Parliament;
(i) all rivers, lakes and other water bodies as defined by an Act of Parliament;
(j) the territorial sea, the exclusive economic zone and the sea bed;
(k) the continental shelf;
(l) all land between the high and low water marks;
(m) any land not classified as private or community land under this Constitution; and
(n) any other land declared to be public land by an Act of Parliament--
(i) in force at the effective date; or
(ii) enacted after the effective date.
The suit property does not fall within any of the above descriptions.
Article 62(2) provides that Public land shall vest in and be held by a County Government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission, if it is classified under--
(a) clause (1) (a), (c), (d) or (e); and
(b) clause (1) (b), other than land held, used or occupied by a national State organ.
Article 62((3)) provides that Public land classified under clause (1) (f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission.
Article 62 (4) provides that Public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use.
The suit parcel of land if found to be Public land would fall under land is held by a county government in trust for the people resident in the County and is administered by the National Land Commission that is if found to be un-alienated government land at the effective date. In this case, the National Land Commission was not made a party. The county Government of Mombasa was a party in this case but chose to file a generalised defence which was a mere denial and did not call any evidence.
The plaintiffs have produced photos of members of public using the land for political rallies and prayers and sports. The plaintiffs have no iota of documentary evidence that the parcel of land is un-alienated government as it then was and therefore public land. There is no tangible document produced by the plaintiffs to demonstrate that the land is public land. The plaintiffs ought to have produced the area survey plan and or gazette notice showing that the land was public land. They have not demonstrated that the suit property falls within the description of Article 62 of the Constitution of Kenya 2010. The burden of proof that the suit property is public land falls on the plaintiffs.
Section 107 of the Evidence Act Cap 80 Laws of Kenya provides for burden of proof. It is trite law that he who alleges must prove. In law the burden of proof lies upon the party who asserts the existence of a fact or set of facts. Section 107 of the Evidence Act Cap 80 Laws of Kenya provides as follows:-
“Burden of Proof-107(1) (whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person).”
In the case of Evans Nyakwana -vs- Cleophas Bwana Ongaro [2015] eKLR, it was held that:-
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(1) of the Evidence Act, Chapter 80, Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the law of proof of that fact shall lie on any particular person…………….”
In that respect, the Supreme Court case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR was relied on for the proposition that:
“The person who makes such an allegation must lead evidence to prove the fact. She or he bears the initial legal burden of proof which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already-discharged initial burden. “The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue” [Cross and Tapper on Evidence, (Oxford University Press, 12, 2010, page 124)]."
The 1st defendant states he purchased the property from one Bridgitte Akinyi Waudi. The 1st defendant produced a green card for the parcel of land that shows the following entries.
I have perused the white card and do find that the 1st edition of the register was opened on 4th September 1989 whereby the lessor was the Municipal Council of Mombasa whereas the lessee was Hamisi Musa Mwidani who was registered as a proprietor on 4th September 1989. The Map sheet used to open the register was MSA/MS/1. The second entry was Prabhilal J. Shah and Jitendra M Kamabhai. It is not clear which date the entry was made. A certificate of lease was issued to the two in the third entry. The 4th and 5th entries are in respect of Daleth Investments Ltd all on the 10th March 1993 when the company was registered as the proprietor of the land and a title issued. A caution was registered on the said date as entry no 6. On the 27th March 1993, the caution in entry no 6 was lifted in entry no 7. In a period of 17 years, a provisional certificate of lease was issued in entry no 8 on the 6th of September 2010 and on the same date in entry no 9 Joseph Okoth Waudi was registered as the owner of the land and a certificate of lease was issued on the same date.
The record changed 8 years later when Bridgitte Okoth and Victor Waudi were registered through transmission under R.L.19 on the 28.2. 2018 and on the same date the property was transferred to Bridgite Kidi Okoth. On the same date, the property was transferred to the 1st defendant and the certificate of lease was issued on the same date. The plaintiffs have questioned this speedy transactions. However, the court finds no evidence that these speedy transactions were illegal. The same do not show that the 1st defendant was acquiring public land illegally.
The plaintiffs have not established that the property was public land. On the other hand, the 1st defendant has proved that he has a title to the property acquired procedurally.
Section 26 of the Land Registration Act 2012 provides that the certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.
Article 40 [6] of the Constitution of Kenya 2010 provides that the rights under this Article do not extend to any property that has been found to have been unlawfully acquired.
The 1st defendant has proved that he is a registered owner of the suit property. The plaintiff have not demonstrated that the suit property is public land and therefore was unlawfully acquired. Ultimately, the suit has no basis and is dismissed with costs.
On the counter claim, the 1st defendant has claimed that he lost earnings, he relies on the Valuation Report on the suit property, prepared by Rashid H. Share of Njihia Muoka Rashid Co. Ltd (Registered and practicing Valuer, Registered Valuer No. 344), sealed and signed on 10th June 2025, which is before this Court as part of the 1st Defendants evidence. It was prepared in accordance with Kenya Valuation Standards 2021 and International Standards effective 31st January 2024. The valuer physically inspected the property on 9th June 2025 and also examined cadastral survey maps, registry index maps, and folio registry index maps sourced from the Survey of Kenya.
The Report establishes the following key findings:
(ix) The registered proprietor is Abdalla Ali Salim Bamahriz, P.O. Box 99944-80107, Mombasa.
(x) No encumbrances were registered against the title as at the date of inspection.
(xi) The plot is zoned for commercial use.
(xii) The valuer examined the Ndungu Land Commission Report (Gazette Notice No. 6862 dated 17th July 2017) and confirmed that the property is not listed therein as irregularly acquired.
(xiii) Enquiries with the local planning authority, KAA, KR, NEMA, and highway authorities confirmed that the property is free from any existing public utility concern and does not fall within 400 metres of any reserved area.
(xiv) The land area is 0.2000 hectares (0.49421 acres).
(xv) The plot was largely vacant as at the date of valuation, with boundaries marked by corner survey beacons, The topography is fairly level with a gentle eastward slope, o
within an area not susceptible to flooding.
(xvi) The unimproved site value is Kshs. per hectare, attracting 14% commercial rates of Kshs. 25,900/= per annum — consistent with the rates receipts in evidence.
On the value of the land and loss of earnings, the Report certifies the following figures:
(v) Value of Land (0.02000 Hectares): Kenya Shillings Fifteen Million only (KES.
(vi) Loss of income since 2018 (assuming a building period of two years): Kenya Shillings Forty-Two Million Five Hundred and Seventy-Four Thousand Eight Hundred only per annum.
(vii) Loss of income for a five-year period: Kenya Shillings Two Hundred and Twelve Million Eight Hundred and Seventy-Four Thousand only.
(viii) Loss incurred in the construction of the perimeter wall fence: Kenya Shillings One Million Eight Hundred Thousand only.
These figures are grounded in a detailed income approach analysis based on the proposed Grade IIAII Business Development hub — consisting of a double-storeyed warehouse of 1,959.35 square metres (planned to house a supermarket as anchor tenant), five mini-shops, and five office spaces — with an envisaged gross rental income of Kshs. 4,174,000/ = per month and a projected net rental income of Kshs. 3,339,200/ = per month. The Report notes that the location — 280 met-res from the Likoni Ferry Channel, adjacent to Rafiki Bank Likoni Branch, on the main road to Ukunda — is strategically ideal for a commercial business hub, and that there is no ell-established supermarket in Likoni Sub-County, making the proposed development both commercially viable and of benefit to the local community.
The 1st Defendant respectfully submits that he has produced a valuation report which is expert evidence of the highest quality and should be accorded full weight. It is unchallenged and uncontroverted. The Plaintiffs called no expert witness. They tendered no valuation, no survey report, and no competing opinion on value or loss. In David Bagine v Martin Bundi [19971 eKLR — a case cited by the Plaintiffs themselves — the Court of Appeal held that a party cannot simply throw figures at the court and expect damages to be awarded. That principle cuts both ways: in the present case it is the 1st Defendant who has properly substantiated his loss with expert evidence, and it is the Plaintiffs who have provided nothing by way of rebuttal.
On the counter claim, the 1st defendant prays for a declaration that he is and remains the bona fide registered proprietor of the suit property. He further pray for General damages to be assessed by the Court for the unlawful interference with the suit property and loss of use since 2018. He prays for Special damages of Kshs. 1,800,000 the costs of materials and labour for the construction of the perimeter wall that was demolished by the Plaintiffs. He also prays for compensation for loss of earnings since 2018 based on the Valuation Report, namely Kshs. 42,574,800/= per annum, or such amount as the Court may assess. Lastly. He prays for costs of the Counterclaim together with interest thereon.
I do grant the counterclaim in terms of a declaration that the 1st defendant is the bona fide proprietor of all that is parcel number MOMBASA/M.S/BLOCK 1 /1592. On special damages of ksh 1,800,000, the 1st defendant has not specially proved that he suffered special damages of that amount and therefore the claim for special damages is disallowed.
On general damages, I do find that the parcel of land has been in use by the general public and not the plaintiffs and therefore the plaintiffs cannot be liable and penalised for general damages on behalf of the general public. On costs, I do find that the suit was filed in public interest and therefore each party should bear own costs. Orders accordingly.