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ELCAllowedLand Case No. 29 of 2015· [2016] KEELC 918 (KLR)

Veronica Aore Were v Joseph Ondiek Keno & another [2016] KEELC 918 (KLR)

Environment and Land Court
4 April 2016
EOE. Obaga
571 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitale court evicted a caretaker who fraudulently transferred a deceased man's land shares to himself, restoring them to his widow's estate.

What this practically means

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Executive summary

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The plaintiff, administratrix of the estate of Paul Okumu Odowa, sued the first defendant (her brother-in-law) and Trans-Nzoia Investment Company seeking his eviction from Plot No. 1110 at Namanjalala farm, a permanent injunction, re-transfer of the deceased's shares, and costs. The defendants were served but neither entered appearance nor filed a defence, so the matter proceeded by way of formal proof. The plaintiff testified that the deceased bought three acres from Gerestina Masitsa, a shareholder of the company, which transferred the shares into the deceased's name; the deceased then placed the first defendant on the land as caretaker. After the deceased died in 1999, the plaintiff discovered the company had transferred the shares to the first defendant, who refused to vacate. She produced the grant ad litem, the original share certificate and the transfer signed by company officials. The court found the evidence uncontroverted and concluded that the first defendant had taken advantage of being on the ground to defraud the deceased's shares upon his demise. On a balance of probabilities, the court granted all reliefs sought: eviction of the first defendant, a permanent injunction restraining him and all claiming through him from interfering with the suitland, an order that the company re-transfer the shares to the administratrix, and joint and several costs against both defendants. Judgment was delivered in the plaintiff's absence.

Key legal issues

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01

Proof of claim by formal proof in undefended land suit

Holding

The plaintiff, as administratrix, proved on a balance of probabilities that the deceased owned the shares and the suitland, and that the first defendant fraudulently procured transfer of the shares

Reasoning

The defendants were duly served but neither entered appearance nor filed a defence, so the suit proceeded by formal proof. The plaintiff produced the grant ad litem, the share certificate issued to Gerestina Masitsa, and the transfer signed by Company officials. The court accepted the chain of ownership: Masitsa sold to the deceased, who placed the first defendant in caretaking possession; on the deceased's death the shares were irregularly transferred to the first defendant. The evidence being uncontroverted, the balance of probabilities was met.

p. 2

Legal principles established

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  • Uncontroverted evidence at formal proof must be tested against the balance of probabilities, and the plaintiff bears that burden

Court orders

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  1. 1.An order of eviction against the first defendant from Plot No. 1110 at Namanjalala farm
  2. 2.A permanent injunction restraining the first defendant or anyone claiming through him from interfering with the suitland after eviction
  3. 3.The second defendant to re-transfer the deceased's shares to the administratrix of the estate
  4. 4.Defendants to jointly and severally meet the costs of the suit
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (suit concerning land in Kitale)

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, "Veronica Aore Were v Joseph Ondiek Keno & another [2016] KEELC 918 (KLR)", Case Analysis (2016). Land Case No. 29 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/918/eng@2016-04-04

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