Court orders squatters on contested Mombasa land to vacate
Justice Matheka ruled that the squatters had failed to prove that they possessed the land in an open, visible, continuous and uninterrupted period of 12 years.
Hundreds of squatters on a 100-acre parcel of land in Kiembeni, Mombasa County, that belongs to a real estate firm could become homeless after a court ordered them to vacate within 180 days or be evicted.
Environment and Land Court Judge Nelly Matheka also declared that ZumZum Investments Ltd is the lawfully registered owner of the land.
More than 800 squatters had claimed ownership of the land by adverse possession after occupying it for over 12 years.
Justice Matheka ruled that the squatters had failed to prove that they possessed the land in an open, visible, continuous and uninterrupted period of 12 years.
“There has been no factual proof of when they took possession, the nature of the possession and for how long the possession went on for. Questions of facts have to be asserted and proved,” said Justice Matheka, who also dismissed the squatters’ counterclaim against ZumZum.
The court noted that three of the squatters testified that they had resided on the land for over 12 years but their national identification cards showed that they were born in Kaloleni, Kwale and Kilifi.
It also said the squatters’ occupation of the land had not been peaceful and they invaded the land and refused to vacate even after being warned.
“I find that the defendants in their evidence have failed to prove that they were in exclusive and actual possession, which requires proof of physical occupation for 12 years,” Justice Matheka said.
The court noted that ZumZum had charged the land to a bank on May 18, 2010 for a loan of Sh100 million and that it was unoccupied.
The court heard that the squatters started encroaching on the land in 2013 and relevant authorities were informed soon after but there was no remedy.
The judge noted that a May 25, 2016 letter produced in court that the deputy county commissioner sent to the squatters’ chairman notified them that it was an offence to invade other persons’ land, regardless of whether it was private or public.
The court also said that the squatters failed to establish that their possession was inconsistent with ZumZum’s ability to enjoy its proprietary rights.
Through lawyer Augustus Wafula, ZumZum told the court that the firm was the registered owner and proprietor of the land, which it had charged to the bank to secure a loan of Sh100 million.
ZumZum argued that in that process, due diligence was conducted, including appointing a company to value and inspect it and that the land was vacant and with no development on it.
The company told the court that the squatters had no right to occupy the land, had trespassed on and illegally occupied it, and proceeded to build temporary and permanent houses without its authority.
The company also accused the squatters of subdividing the land for sale, utilising the resources on it and carrying out development projects without the company’s consent.
ZumZum said it wrote to various state agencies, including the National Land Commission (NLC) and the county administration, in order to remedy the situation.
It also said it submitted its title documents for verification to the NLC, which confirmed that it was the registered and rightful owner of the land.
The company said that acting on the findings of the NLC, the deputy county commissioner of Kisauni sub-county wrote to the representative of the squatters to stop further developments on the land but they refused to vacate.
The squatters, in their counterclaim, wanted the court to declare that they had acquired ownership of the land by adverse possession and dismiss ZumZum’s case.
