Tom Chebungwen Ndiwa v County Government of Bungoma & 3 others [2018] KEELC 284 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Res judicata
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
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.
Limitation of actions
Plea not sustained - the registration the plaintiff seeks to cancel took place on 15th May 2017, within 12 years
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.
Ownership of the suit land
Plaintiff failed to prove the deceased was the proprietor or had any interest in the suit land
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.
Promise of compensation and compulsory acquisition
Not proved - no evidence of when, how or by whom the promise was made, nor of any acquisition documents under the repealed Land Acquisition Act or the Land Act
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 Compulsory acquisition would have required a Gazette Notice under the repealed Land Acquisition Act, and comparable provisions exist in Sections 107 and 110 of the Land Act.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.
Legal principles established
#- 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
#- 1.Plaintiff's suit dismissed with costs to the 1st defendant only
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit land parcel No. ELGON/KAPSOKWONY/409
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Naomi Wayua Mutuku v Mutua S Waema & 5 others; Komarock & Farming Co-operative Society (Interested Party) [2022] KEELC 1357 (KLR)[2022] KEELC 1357 (KLR)22 Feb 2022
Cite this brief
#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.