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ELCAllowedELC 26 of 2006· [2017] KEELC 25 (KLR)

Daniel M. Mutiso v Reuben Munyao & 8 others [2017] KEELC 25 (KLR)

Environment and Land Court of Kenya
10 July 2017
CMC.G. MBOGO
1,283 words in judgment
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The bottom line

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The Machakos Environment and Land Court confirmed the plaintiff's ownership of two land parcels and declared nine defendants trespassers because they failed to show up and present evidence.

What this practically means

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Executive summary

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The plaintiff, a farmer of Kabaa Sublocation, Machakos County, sued nine defendants claiming ownership and possession of land parcels Mbiuni/Kabaa/910 and Mbiuni/Kabaa/973, which he said he had purchased from the late Thomas Munyao Kithome and from the 4th defendant, Charles Munyao Kithome, between 1993 and 1994. He sought a declaration of ownership, a permanent injunction, and costs. The 2nd to 7th and 9th defendants filed a joint defence and counterclaim asserting beneficial ownership, contending that the suit parcels were subdivisions of family land acquired jointly between 1976 and 1979 and registered in the name of their father and husband as family head. The suit lay dormant from 2006 until 2017, when it was revived under Order 17 rule 2 of the Civil Procedure Rules. At the hearing only the plaintiff appeared and testified, service having been effected on the defendants' advocates. The plaintiff traced a chain of decisions in his favour: a Land Disputes Tribunal award of 1997, its confirmation by the Principal Magistrate's court in Civil Miscellaneous Application 9 of 1998, dismissal of the defendants' appeal to the Provincial Land Disputes Appeals Tribunal, and dismissal of their High Court appeal for want of prosecution. He produced title deeds showing registration of the parcels in his name. The court found that no evidence supported the counterclaim and none rebutted the plaintiff's case, declined to revisit the Tribunal's jurisdiction as that issue was not before it, and dismissed the defence and counterclaim. Judgment was entered for the plaintiff against the defendants jointly and severally in terms of prayers (a), (b) and (c) of the plaint.

Key legal issues

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01

Ownership of the suit parcels

Holding

The plaintiff proved on a balance of probabilities that he is the registered owner of Mbiuni/Kabaa/910 and Mbiuni/Kabaa/973, his title having been regularised through court process after the Tribunal decision was confirmed and appeals dismissed.

Reasoning

The plaintiff adduced uncontroverted evidence that he purchased the two parcels, obtained favourable Tribunal, magistrate's court and appellate decisions, and was ultimately issued with title deeds after the Land Control Board transferred the parcels to him. The defendants, though served with hearing notice, did not appear at the hearing and led no evidence to rebut his case or support their counterclaim.

p. 2
02

Failure to prosecute the defence and counterclaim

Holding

The counterclaim and defence were dismissed for want of evidence, the defendants and their counsel having been served but absent at the hearing.

Reasoning

The suit was revived under Order 17 rule 2 of the Civil Procedure Rules in 2017 after lying dormant since 2006. Hearing notice was served on the defendants' advocates, but only the plaintiff appeared and testified. With no evidence from the defendants, the court dismissed both the defence and the counterclaim and entered judgment in terms of the plaint.

p. 2
03

Tribunal jurisdiction raised but not determined

Holding

The court declined to determine whether the Land Disputes Tribunal had jurisdiction, as the issue was not pleaded before it, and declined to speculate on the outcome of the defendants' dismissed appeal.

Reasoning

The court noted that the defendants' Civil Appeal number 76 of 2002 was dismissed for want of prosecution under Order 41 rule 31(1) of the Civil Procedure Rules and their attempts to set aside that dismissal failed. It therefore treated the prior decisions as final and declined to revisit the Tribunal's jurisdiction.

p. 2

Legal principles established

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  • Where no evidence is led in support of a counterclaim, it must fail.
  • A party who leads no evidence to rebut an opponent's case leaves the opponent's testimony uncontroverted.

Court orders

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  1. 1.Dismissal of the defendants' defence and counterclaim with costs to the plaintiff
  2. 2.A declaration that the plaintiff is the sole absolute owner entitled to immediate possession and use of land parcels Mbiuni/Kabaa/910 and Mbiuni/Kabaa/973 and that the defendants are trespassers
  3. 3.A permanent injunction restraining the defendants, their servants or agents from entering, remaining or continuing in occupation of the suit parcels
  4. 4.Judgment entered for the plaintiff against the defendants jointly and severally in terms of prayers (a), (b) and (c) of the plaint, including costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 rule 2
  • Civil Procedure RulesOrder 41 rule 31(1)
  • Land Disputes Tribunals Act (repealed)Section 3(1)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land parcels Mbiuni/Kabaa/910 and Mbiuni/Kabaa/973

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, "Daniel M. Mutiso v Reuben Munyao & 8 others [2017] KEELC 25 (KLR)", Case Analysis (2017). ELC 26 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/25/eng@2017-07-10

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