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ELCAllowedPlot No. 157/III/MN suit (Malindi) – amended Plaint dated 23rd June 2014· [2016] KEELC 867 (KLR)

Mark Mwaura Mwangi & another v Michael Charo Konde [2016] KEELC 867 (KLR)

Environment and Land Court
27 May 2016
558 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Malindi Environment and Land Court ordered squatters evicted from a family plot because the heirs proved their late father's registered title with documents.

What this practically means

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Executive summary

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This was an original suit before the Environment and Land Court at Malindi in which the Plaintiffs, by an amended Plaint dated 23rd June 2014, sought the eviction of the Defendants from plot number 157/III/MN. The Plaintiffs averred that the deceased Peter John Mwangi was the registered proprietor of the suit property, having purchased it from Mohamed Haji Bachu by a Transfer dated 19th April 1974 and registered on 24th April 1974, and that the Defendants invaded the land after the deceased's death, erecting temporary makuti structures and unlawfully remaining thereon. Although served by advertisement in the Daily Nation of 23rd September 2014, the Defendants neither entered appearance nor filed a defence, and the matter proceeded to formal proof on 23rd February 2015. PW1, a son of the deceased, testified on the purchase and history of the land, including the planting of coconut and cashewnut trees by his father, and stated that some Defendants had used his father's title documents to file an adverse possession suit, Malindi ELC No. 36 of 2010 (OS), which was dismissed. PW2, a beneficiary, testified about the invasion and the Defendants' return despite the Chief's intervention. Counsel for the Plaintiffs submitted that the Plaintiffs held indefeasible title and that Article 40 of the Constitution guarantees property rights. The court, applying the balance of probabilities, found the claim proved through documentary evidence and testimony, allowed the amended Plaint as prayed, and ordered the eviction of the Defendants. Judgment was delivered at Malindi on 27th May 2016 by O. A. Angote, Judge.

Key legal issues

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01

Proof of ownership of the suit property on a balance of probabilities

Holding

The Plaintiffs proved through the Certificate of Title, Certificate of Postal Search and witness testimony that their late father was the registered proprietor of the suit property.

Reasoning

The Defendants, though served by advertisement in the Daily Nation of 23rd September 2014, neither entered appearance nor filed a defence. The matter proceeded to formal proof. PW1 testified the deceased bought the property from Mohamed Haji Bachu by a Transfer dated 19th April 1974 and it was transferred on 24th April 1974, and produced title documents. An earlier adverse possession claim by some Defendants had been dismissed. On this evidence the court was satisfied ownership was proved.

p. 2
02

Unlawful occupation and entitlement to eviction

Holding

The Defendants invaded the suit property after the death of the registered owner, put up temporary makuti structures, and were to be evicted.

Reasoning

PW1 stated the Defendants invaded the land upon the father's death and erected temporary makuti structures; PW2 testified that after reporting, the Chief helped remove the Defendants but they returned. Their prior attempt to claim the land through adverse possession in Malindi ELC No. 36 of 2010 (OS) had been dismissed. The court allowed the amended Plaint as prayed, granting the eviction sought.

p. 2

Legal principles established

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  • A plaintiff who proves registered title by documentary evidence and testimony, in the absence of a defence, is entitled to judgment on a balance of probabilities.

Court orders

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  1. 1.The Plaintiffs' amended Plaint dated 23rd June 2014 allowed as prayed
  2. 2.An order to evict the Defendants out of plot number 157/III/MN (as sought in the Plaint)

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40

Cases cited (1)

  • Malindi ELC Civil Case No. 36 of 2010 (OS)
Jurisdiction invoked
Original civil suit before the Environment and Land Court seeking eviction and ownership of land; Article 40 of the Constitution cited on property rights

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, "Mark Mwaura Mwangi & another v Michael Charo Konde [2016] KEELC 867 (KLR)", Case Analysis (2016). Plot No. 157/III/MN suit (Malindi) – amended Plaint dated 23rd June 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/867/eng@2016-05-27

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