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ELCDismissedNot stated in the judgment· [2016] KEELC 1168 (KLR)

John Khisa Mumelo v Alice Lusweti [2016] KEELC 1168 (KLR)

High Court of Kenya
26 January 2016
1,301 words in judgment
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The bottom line

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A Kenyan High Court refused to evict a widow, ruling the plaintiff had irregularly obtained title to land already lawfully shared and registered to her deceased husband.

What this practically means

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Executive summary

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The plaintiff, brother-in-law of the late Edward Lusweti, sued the defendant (the deceased's widow) for eviction from LR. No. Sinyerere/Kipsaina Block 1/Bistati/22 measuring 5.059 hectares, of which he was the registered owner. He claimed membership and shareholding in Bistati Farmers Co-operative Society Limited, produced his title deed and a search, and alleged that the deceased's share in the society had been refunded, after which the defendant moved onto the land in 1975. The defendant testified that both the plaintiff and the deceased were society members; prior disputes between them - an arbitration referred by the District Officer in Kitale SRM Civil Case No. 127 of 1989, proceedings before the Commissioner of Co-operatives, and a Charangany Land Disputes Tribunal award adopted as a judgment of the Kitale Senior Resident Magistrate's Court - all directed an equal sharing of the land. The land was sub-divided in 1993 into two equal portions of 2.530 hectares, and the deceased obtained title to Parcel 118 on 28/1/1997. The court found that the plaintiff, who obtained title on 19/3/1997, irregularly acquired title to the entire 5.059 hectares; there was no evidence of cancellation of the deceased's title and no particulars of fraud were pleaded. Applying the Court of Appeal decision in Kenneth Nyaga Mwige v Austine Kiguga & 2 Others, the court held that documents marked for identification but not produced had no probative value. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Entitlement to eviction orders

Holding

The plaintiff is not entitled to eviction orders; the suit is dismissed with costs

Reasoning

The prior proceedings between the plaintiff and the deceased (arbitration by the District Officer, the Co-operative Tribunal/Commissioner, and the Charangany Land Disputes Tribunal as adopted by the Kitale SRM Court) all resolved that the land be shared equally. The sub-division was effected and the deceased obtained title to his 2.530 hectares on 28/1/1997. All previous proceedings ended in favour of the deceased and no appeals were preferred. The defendant, as the deceased's widow, occupies the land lawfully.

p. 2
02

Validity of the plaintiff's title to the entire 5.059 hectares

Holding

The plaintiff irregularly obtained title to the entire parcel including the deceased's half; the deceased's title is valid

Reasoning

The plaintiff obtained title on 19/3/1997, about one and a half months after the deceased obtained title to his half portion, yet his title covered the whole 5.059 hectares. The plaintiff alleged fraud and cancellation of the deceased's title but produced no evidence of cancellation and pleaded no particulars of fraud. The only logical conclusion was that the plaintiff's title to the entire parcel was irregularly obtained.

p. 2
03

Evidential value of documents marked for identification but not produced

Holding

Such documents are of no evidential value and cannot be relied upon by the court

Reasoning

Documents the plaintiff sought to rely on to show the deceased's share in the co-operative society was refunded were marked M.F.I.3, 4, 5 and 8 but never produced. Following the Court of Appeal's holding in Kenneth Nyaga Mwige v Austine Kiguga & 2 Others, the court held such documents do not form part of the record and have no probative value.

p. 2

Legal principles established

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  • Documents marked for identification but not produced in evidence cannot be relied upon and are of no probative value as they do not form part of the record
  • A party seeking eviction must prove entitlement to that relief; a plaintiff cannot evict a widow occupying land validly registered in the name of her deceased husband

Court orders

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  1. 1.The plaintiff's suit for eviction is dismissed
  2. 2.Costs of the suit awarded to the defendant

Authorities

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Cases cited (1)

  • Kenneth Nyaga Mwige -vs- Austine Kiguga & 2 Others
    Nairobi Court of Appeal Civil Appeal No. 140 of 2008
Jurisdiction invoked
Original civil jurisdiction of the High Court over a claim for eviction from land (not expressly stated in the 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, "John Khisa Mumelo v Alice Lusweti [2016] KEELC 1168 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1168/eng@2016-01-26

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