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ELCDismissed· [2018] KEELC 727 (KLR)

Ntirikimo Ole Matipei & another v Lasoi Ene Matipei & another [2018] KEELC 727 (KLR)

Environment and Land Court
15 November 2018
SOS. Okong'o
1,324 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Winning an undefended land case in Kenya still requires solid proof — this plaintiff lost because he proved nothing.

What this practically means

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Executive summary

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The Plaintiffs sued on 1st July 2014 seeking a declaration that they were bona fide beneficiaries of the estate of the late Matipei Lankoi, who died intestate in about 1982, and an order compelling the Defendants to subdivide Kajiado/Mailua/1194 into three equal portions and register two portions in the Plaintiffs' names. They pleaded that Mailua Group Ranch allocated the property to the deceased and in 2004 transferred it to the 1st Defendant, a widow of the deceased, to hold in trust for the family, and that she fraudulently transferred it to the 2nd Defendant, who subdivided it into Plots 3059 and 3060. The Defendants did not enter appearance or file a defence. By the hearing date, the 1st Plaintiff and the 1st Defendant had died without substitution, so the suit proceeded only on the 2nd Plaintiff's claim against the 2nd Defendant. The 2nd Plaintiff and one witness adopted their witness statements and produced the registers, the Registry Index Map and official searches. The court held that even in an undefended suit the plaintiff bears the burden of proof, and found no evidence that the deceased was a member of the Ranch or was allocated the property, nor that the 2nd Plaintiff was a beneficiary or that the estate was under administration. The customary trust claim failed as trust must be pleaded and proved and no finding could be made against the deceased 1st Defendant. The court further held it lacked jurisdiction to declare heirs and beneficiaries of an estate, and the subdivision prayer could not be granted because the suit property no longer existed, Plot 3059 having been transferred to a third party. The claim was dismissed with no orders as to costs.

Key legal issues

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01

Proof of beneficiary/heir status in an undefended suit

Holding

The 2nd Plaintiff failed to prove he was a beneficiary or heir; no evidence of membership of the Group Ranch, allocation of the property, administration of the estate, or ascertainment of beneficiaries

Reasoning

The 2nd Plaintiff relied solely on witness statements reiterating the plaint. No evidence was led on the deceased's membership of Mailua Group Ranch, allocation of the suit property, or on the administration of the estate, including whether an administrator had been appointed and beneficiaries' shares ascertained. A beneficiary must claim from administrators, and the 2nd Defendant was shown to be none.

p. 2
02

Customary trust claim

Holding

The trust claim failed because it was not proved and the alleged trustee (1st Defendant) died without substitution

Reasoning

Trust must be pleaded and proved. The claim was that the 1st Defendant held the property in trust for the family. Since she died during the pendency of the suit and was not substituted, the court could not make any finding against her, so the trust claim could not succeed.

p. 2
03

Grant of reliefs over a non-existent property

Holding

The subdivision prayer could not be granted because the suit property had been subdivided and Plot 3059 transferred to a third party

Reasoning

The register of the suit property was closed on 5th December 2011 upon subdivision into Plots 3059 and 3060. The official search showed Plot 3059 was transferred to a third party, George Ndula Meritei, on 25th February 2015. An order for subdivision of a property that no longer exists cannot be granted.

p. 2

Legal principles established

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  • A claim based on trust must be pleaded and proved, even in an undefended suit
  • The Environment and Land Court lacks jurisdiction to determine heirs and beneficiaries of a deceased person's estate
  • Even in an undefended suit, the plaintiff bears the burden of proving the case
  • A beneficiary can only claim a share of a deceased's estate from the administrators of the estate

Court orders

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  1. 1.The 2nd Plaintiff's claim is dismissed
  2. 2.No orders as to costs since the suit was not defended
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes; the court held it lacked jurisdiction over beneficiaries/heirs of a deceased's estate

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, "Ntirikimo Ole Matipei & another v Lasoi Ene Matipei & another [2018] KEELC 727 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/727/eng@2018-11-15

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