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ELCDismissedKapsabet Magistrate's Court Civil Suit No. 162 of 2008 (appeal therefrom, Eldoret)· [2017] KEELC 2491 (KLR)

Reuben Shikambe Shisambo v Antonina Shilwatso Materu [2017] KEELC 2491 (KLR)

High Court of Kenya (Environment and Land list), Eldoret
16 June 2017
2,170 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer lost his appeal because he had no title deed, official search, or Land Control Board consent to prove ownership of the land he claimed.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. G. M. Mutiso, Resident Magistrate, delivered on 26th April 2011 in Kapsabet Civil Suit No. 162 of 2008. The appellant, Reuben Shikambe Shisambo, claimed he bought 0.2 acres of Plot No. 135 (Chepkumia/Chepkumia/Block 2/135) from the respondent in 2003 for cash, and a further 0.3 acres by written agreement of 6th December 2006, on which she undertook to vacate by October 2008. The respondent denied the agreements, asserted the land belonged to her late husband, and maintained she had availed a refund of Kshs.100,000/= through the Assistant Chief which the plaintiff refused to collect. The trial court found no evidence that the respondent was proprietor of the land, found both parties intermeddling with a deceased person's estate, and ordered that the appellant keep only 0.1 acres plus a refund of Kshs.100,000/= payable within 30 days. On appeal, Ombwayo J held that the trial court erred in considering extraneous, unpleaded matters - that the land belonged to a deceased person and that the respondent's unnamed children were heirs - absent any letters of administration or confirmed grant, and that the registered proprietor of the longer title Tindinyo 173(3) ought to have been joined. However, the court found the appellant had failed to prove the respondent was the registered proprietor, producing no title deed, official search or Land Control Board consent, and had not proved his case on a balance of probabilities. The ground that judgment was delivered in the appellant's absence was held not to be a proper ground of appeal. The appeal was accordingly dismissed, with each party bearing their own costs.

Key legal issues

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01

Burden of proving ownership of the suit land

Holding

The appellant failed to discharge the burden of proving that the respondent was the registered proprietor of the suit land

Reasoning

The appellant produced no title deed or certificate of title, no Land Control Board consent, and no certificate of official search. The exhibited proceedings nowhere described the respondent as proprietor, nor did she hold herself out as such. A plaintiff bears the burden of proving his case on a balance of probabilities, and the appellant did not.

p. 3
02

Reliance on unpleaded matters by the trial court

Holding

The learned Magistrate erred in considering extraneous, unpleaded matters, namely that the property belonged to a deceased person's estate and that the respondent's children were heirs

Reasoning

Neither party pleaded that the property belonged to a deceased person; no letters of administration or certificate of confirmation were produced; the children were not named in the pleadings. The registered proprietor of the longer title Tindinyo 173(3) ought to have been enjoined for the dispute to be fairly determined. Nonetheless, this did not save the appeal because the appellant still failed to prove his own case.

p. 3
03

Judgment delivered in the absence of the appellant

Holding

The complaint does not go to the merit of the appeal and is not a proper ground of appeal

Reasoning

The court treated the alleged absence of the appellant and his counsel at delivery of judgment as a procedural complaint not touching on the merits, and therefore dismissed that ground without further analysis.

p. 3
04

Intermeddling with a deceased person's property

Holding

The trial court's finding of intermeddling was based on unpleaded and unproven estate matters, though its finding that the respondent was not shown to be proprietor was correct

Reasoning

The Magistrate had cited section 45 of the Law of Succession Act forbidding intermeddling. The appellate court agreed the respondent was not shown to be proprietor, but held the estate/heir findings rested on no pleaded or proved foundation.

p. 3

Legal principles established

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  • It is the plaintiff's duty to prove his case on a balance of probabilities, including producing title documents such as a title deed, official search and Land Control Board consent
  • A court cannot determine claims to property of a deceased person where no letters of administration and certificate of confirmation of grant exist; parties may not litigate over unproven estates
  • Courts may not base judgments on matters not pleaded and proved

Court orders

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  1. 1.The appeal is dismissed, the judgment and decree of the learned Magistrate of 26th April 2011 standing
  2. 2.Each party to pay his own costs

Authorities

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Legislation

  • Law of Succession Act (referenced by the learned Magistrate)section 45(1)
On appeal from
Kapsabet Magistrate's Court
Civil Suit No. 162 of 2008
Jurisdiction invoked
First appeal from the Resident Magistrate's Court (trial court appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Reuben Shikambe Shisambo v Antonina Shilwatso Materu [2017] KEELC 2491 (KLR)", Case Analysis (2017). Kapsabet Magistrate's Court Civil Suit No. 162 of 2008 (appeal therefrom, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2491/eng@2017-06-16

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