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ELCAllowedLand Case No. 77 of 2009· [2016] KEELC 383 (KLR)

Lilian Sayo Ogola v Jacob Wafula Musungu [2016] KEELC 383 (KLR)

Environment and Land Court
11 October 2016
EOE. Obaga
809 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court confirmed an estate's ownership of 20 acres, declared the occupant a trespasser, ordered eviction, and awarded KShs. 900,000 in damages plus costs.

What this practically means

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Executive summary

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The plaintiff, substituted as administratrix of the estate of her late husband Samuel Kiberenge Musombi Jackmoore, sued the defendant seeking a declaration that she is the legal owner of LR No. Trans-Nzoia/Cherangani/35 (20 acres), that the defendant is a trespasser who should vacate or be evicted, and mesne profits. The deceased had purchased the land from the National Council of Churches of Kenya and it was transferred to him on 29/6/2007; he died on 4/2/2013. The defendant, whose father had earlier sued NCCK in Kitale HCCC No. 29 of 2007 (dismissed), refused to vacate, erected semi-permanent structures and cultivated the land, and repulsed attempts to take possession. At the hearing the defendant, though served, absented himself and only appeared after the plaintiff closed her case; his application to set aside the ex parte proceedings was never set down for inter partes hearing. The plaintiff produced the death certificate, grant ad litem and title as exhibits, and quantified mesne profits at Kshs.5,000 per acre for nine years, totalling Kshs.900,000. The court found the plaintiff's evidence uncontroverted and proved on a balance of probabilities, issued a declaration of ownership and a finding of trespass, ordered the defendant to vacate voluntarily or face eviction, awarded mesne profits of Kshs.900,000, and awarded costs to the plaintiff. Judgment was delivered at Kitale on 11 October 2016.

Key legal issues

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01

Proof of ownership and trespass on a balance of probabilities

Holding

The plaintiff proved ownership through a title in the deceased's name and uncontroverted evidence, entitling her to a declaration of ownership, a finding of trespass, eviction and mesne profits.

Reasoning

The plaintiff, as administratrix of the deceased's estate, produced a death certificate, grant of letters of administration ad litem and a title showing the deceased as registered owner of the 20-acre parcel. The defendant, though served and having filed a defence alleging improper suing and pendency of another suit, did not attend the hearing; his evidence was thus uncontroverted. The court found the claim proved on a balance of probabilities and granted the declaration, eviction and mesne profits of Kshs.900,000 for nine years, with costs to the plaintiff.

p. 2

Legal principles established

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    Court orders

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    1. 1.Declaration that the plaintiff is the legal owner of LR No. Trans-Nzoia/Cherangani/35
    2. 2.Declaration that the defendant is a trespasser on the said land
    3. 3.Defendant to move out voluntarily or be evicted
    4. 4.Plaintiff awarded mesne profits of Kshs.900,000/=
    5. 5.Costs of the suit to be borne by the defendant
    Jurisdiction invoked
    Environment and Land Court jurisdiction over land disputes (unspecified provision in judgment)

    Key timeline

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    Practical implications

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    Frequently asked questions

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    Cite this brief

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    Cite this brief

    Caselaw, "Lilian Sayo Ogola v Jacob Wafula Musungu [2016] KEELC 383 (KLR)", Case Analysis (2016). Land Case No. 77 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/383/eng@2016-10-11

    Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.