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ELCDismissedEnvironment and Land Case No. 56 of 2015· [2018] KEELC 284 (KLR)

Tom Chebungwen Ndiwa v County Government of Bungoma & 3 others [2018] KEELC 284 (KLR)

High Court of Kenya at Bungoma (Environment and Land Court)
15 November 2018
2,260 words in judgment
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The bottom line

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A Kenyan court dismissed a family's land claim because they had no title documents, confirming that ownership of registered land cannot be proved by word of mouth alone.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of his late father Ndiwa Chebungwen, sued the County Government of Bungoma, the management committees of Kibogo Primary and Secondary Schools, and the Cabinet Secretary National Treasury, seeking cancellation of the 4th defendant's registration as proprietor of land parcel No. ELGON/KAPSOKWONY/409 and compensation for its alleged irregular registration. He claimed the deceased originally owned the land, which was allocated to the schools by the defunct Bungoma County Council with a promise of compensation that was never honoured. The defendants denied the deceased's ownership, asserting the County Council was first registered proprietor in 1966, and pleaded res judicata (citing a 1972 suit by the plaintiff's mother) and limitation. Only the plaintiff and one witness testified; the 1st defendant called its Ward Administrator, who maintained the previous owner was fully compensated. The Court first resolved the jurisdictional pleas: the burden of proving res judicata lay on the defendants, who produced no proceedings or judgment from the alleged previous suit, so that plea failed; and since the 4th defendant's registration took place on 15th May 2017, the limitation plea could not stand. On the merits, the plaintiff, bearing the burden under Sections 107 to 109 of the Evidence Act, produced no document of title or other evidence that the deceased owned the suit land, and no proof of any promise of compensation or compulsory acquisition. The suit was dismissed with costs to the 1st defendant only.

Key legal issues

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01

Res judicata

Holding

Plea rejected - defendants failed to discharge the burden of proving a previous suit between the parties or their privies heard and determined by a competent court

Reasoning

The defendants pleaded res judicata, so the burden was theirs under Section 109 of the Evidence Act. They did not produce the pleadings, proceedings or judgment of the alleged 1972 suit by the plaintiff's mother, nor identify the court, the parties or the decision. Without that evidence the plea could not be established.

p. 2
02

Limitation of actions

Holding

Plea not sustained - the registration the plaintiff seeks to cancel took place on 15th May 2017, within 12 years

Reasoning

Section 7 of the Limitation of Actions Act bars suits to recover land after 12 years. The uncontested title deed showed the 4th defendant was registered on 15th May 2017, so the claim to cancel that registration could not be time-barred.

p. 2
03

Ownership of the suit land

Holding

Plaintiff failed to prove the deceased was the proprietor or had any interest in the suit land

Reasoning

Apart from bare averments, the plaintiff led no direct or circumstantial evidence of the deceased's ownership. Despite registered title existing for both the suit land and the alleged parent parcel No. 266, no document of title in the deceased's name was produced. A claim to registered land cannot rest on word of mouth.

p. 3
04

Promise of compensation and compulsory acquisition

Holding

Not proved - no evidence of when, how or by whom the promise was made, nor of any acquisition documents under the repealed Land Acquisition Act or the Land Act

Reasoning

A promise of such magnitude by a government institution could not have been oral. Compulsory acquisition would have required a Gazette Notice under the repealed Land Acquisition Act, and comparable provisions exist in Sections 107 and 110 of the Land Act. No supporting documents were produced, leaving the Court with no basis even to assess compensation.

p. 3

Legal principles established

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  • The burden of proving res judicata lies on the party pleading it, who must show the previous suit was between the same parties or their privies and was heard and determined by a competent court
  • Ownership of registered land cannot be proved by word of mouth; a claimant must produce a document of title
  • Sections 107, 108 and 109 of the Evidence Act place the burden of proving ownership on the person asserting it

Court orders

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  1. 1.Plaintiff's suit dismissed with costs to the 1st defendant only

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Civil Procedure ActSection 7
  • Evidence ActSections 107, 108 and 109
  • Land Acquisition Act (repealed)Section 6
  • Land ActSections 107 and 110
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land parcel No. ELGON/KAPSOKWONY/409

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, "Tom Chebungwen Ndiwa v County Government of Bungoma & 3 others [2018] KEELC 284 (KLR)", Case Analysis (2018). Environment and Land Case No. 56 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/284/eng@2018-11-15

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