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ELCAllowedLand Case No. 26 of 2013· [2016] KEELC 1163 (KLR)

Paul Wanyonyi Makokha v Catherine Naliaka [2016] KEELC 1163 (KLR)

Environment and Land Court
28 January 2016
EOE. Obaga
672 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Environment and Land Court at Kitale, presided over by E. Obaga J, delivered judgment in a first-instance land dispute between Paul Wanyonyi Makokha and Catherine Naliaka, his step-mother. The plaintiff's late father, Wafula Kimalilo, was a shareholder of Trans-Nzoia Investment Company Limited and had been allocated plot No. 76 (two acres) at Sinoko farm. In 2002 the deceased transferred his share to the plaintiff, evidenced by a transfer document, a letter to the company directors, a share certificate and the farm area list. In 2007 the defendant obtained an award from the Kaplamai Land Disputes Tribunal, adopted as judgment in Kitale Land Case No. 102 of 2007, granting her two acres at Chesikaki in Bungoma and two acres at Sinoko farm (plot No. 100). In February 2013 she invaded the suit land with her children and began construction; an interlocutory mandatory injunction issued on 6.5.2013 removed her. The suit proceeded ex-parte on 29.9.2015 after neither the defendant nor her counsel appeared, the hearing date having been taken by consent. The court found the tribunal proceedings did not concern the suit land, which had already been transferred to the plaintiff, and that the plaintiff proved his case on a balance of probabilities. Judgment was delivered on 28 January 2016.

Key legal issues

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01

Ownership of plot No. 76, Sinoko farm, following inter vivos transfer of the deceased's share

Holding

The court found the transfer of the share to the plaintiff in 2002 valid, and that the defendant's tribunal award related to plot No. 100 and other land, not the suit land.

Reasoning

The court examined the transfer documents, share certificate and area list produced by the plaintiff, all showing the share and plot were transferred to him in 2002. The defendant's 2007 tribunal case, adopted as judgment in Kitale Land Case No. 102 of 2007, awarded her two acres at Chesikaki and two acres at Sinoko, being plot No. 100, and the proceedings did not concern the suit land. The court therefore found no basis for her claim and held the plaintiff proved his case on a balance of probabilities.

p. 2

Legal principles established

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  • A party cannot lay claim to land that had already been transferred to another before the commencement of proceedings, and an award in prior proceedings concerning different land confers no claim to the suit land.

Court orders

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  1. 1.Declaration that plot No. 76 at Sinoko farm solely belongs to the plaintiff
  2. 2.Confirmation of the mandatory injunction issued on 6.5.2013 in terms of prayer (b) of the plaint
  3. 3.Defendant to bear costs of the suit
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

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, "Paul Wanyonyi Makokha v Catherine Naliaka [2016] KEELC 1163 (KLR)", Case Analysis (2016). Land Case No. 26 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1163/eng@2016-01-28

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