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ELCPartially AllowedE.L.C. Case No. 2 of 2017· [2018] KEELC 2312 (KLR)

Faith Karimi Muchangi & 2 others v Peter Njeru Mvungu [2018] KEELC 2312 (KLR)

Environment and Land Court of Kenya
26 July 2018
2,610 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that title deeds and a confirmed grant of representation prove land ownership, and gave an occupying relative 30 days to vacate.

What this practically means

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Executive summary

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The three Plaintiffs, widow and children of the late Nick Muchangi Mvungu, sued the Defendant, the deceased's brother, seeking permanent injunctions, eviction, an order compelling the OCS Siakago Police Station to aid eviction, cessation of harassment and mesne profits over Title Nos. Nthawa/Gitiburi/2698 and 2699, which they acquired through Embu High Court Succession No. 37 of 2015. The Defendant denied their ownership, pleaded that the deceased had sold parcel No. 2699 to him, that the developments were built with borrowed funds not fully repaid, and that the succession was undertaken secretly. The Defendant did not appear at the hearing. The 1st Plaintiff testified, producing the certificate of confirmation of grant and title deeds, which stood unchallenged. Framing eight issues, the court found the Plaintiffs were the registered proprietors; that the Defendant failed to discharge the burden under section 107 of the Evidence Act on the alleged secrecy of the succession or the alleged purchase of parcel No. 2699; and that any liabilities of the deceased fell outside the Environment and Land Court's jurisdiction, belonging to the civil or succession courts. Judgment was entered for the Plaintiffs in terms of prayers (a), (b), (c) and (d) of the plaint, with the Defendant given thirty days to vacate voluntarily, failing which eviction would ensue in accordance with the law. The mesne profits claim of Kshs 910,000 was declined for want of proof, there being no valuer's report or documentary evidence of rent. Noting the parties are relatives, the court ordered each party to bear their own costs.

Key legal issues

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01

Ownership of the suit properties

Holding

The Plaintiffs are the owners and registered proprietors of the suit properties, proved by the certificate of confirmation of grant and title deeds which were unchallenged

Reasoning

The Defendant denied ownership in his defence but did not attend the hearing to challenge the Plaintiffs' evidence. The 1st Plaintiff produced the certificate of confirmation of grant and title deeds showing registration following succession in Embu High Court Succession No. 37 of 2015. That evidence stood uncontroverted and established ownership.

p. 3
02

Alleged secrecy of the succession proceedings

Holding

The Defendant failed to establish any secrecy or foul play in the succession proceedings

Reasoning

The application for letters of administration was published in the Kenya Gazette (Gazette Notice No. 6595 of 17th May 2013) inviting objections within 30 days. The burden of proving secrecy lay on the Defendant under section 107 of the Evidence Act, and he adduced no evidence to discharge it.

p. 3
03

Alleged purchase of parcel No. 2699 by the Defendant from the deceased

Holding

The Defendant failed to discharge the burden of proving the alleged purchase

Reasoning

The issue was raised by the Defendant in his defence. He did not attend court to adduce evidence in support of the alleged purchase for valuable consideration, so the assertion remained unproved.

p. 3
04

Jurisdiction over alleged liabilities of the deceased

Holding

Issues of the existence or settlement of the deceased's liabilities fall outside the jurisdiction of the Environment and Land Court

Reasoning

The Defendant pleaded that the deceased had liabilities to be settled from the estate and that developments were built with borrowed funds. The court held that even if such liabilities existed, their determination belongs to the civil or succession courts, not the Environment and Land Court. The Defendant also adduced no evidence on the point.

p. 3
05

Entitlement to reliefs and mesne profits

Holding

The Plaintiffs are entitled to the injunction and eviction-related reliefs but mesne profits were not adequately proved

Reasoning

Having established ownership, the Plaintiffs were entitled to reliefs (a), (b), (c) and (d). The court noted prayer (b) was curiously worded as an injunction to evict, requiring mandatory injunction treatment. The mesne profits claim of Kshs 910,000 rested on a bare statement with no valuer's report or documentary evidence of rent collections.

p. 3
06

Demand and notice of intention to sue

Holding

There is no evidence on record that a demand and notice of intention to sue was issued

Reasoning

The Plaintiffs pleaded issuance of demand and notice but the 1st Plaintiff did not produce the notice at trial and neither party adduced evidence on the issue, so the allegation was not proved.

p. 3

Legal principles established

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  • Costs of an action are at the discretion of the court, subject to the proviso that costs follow the event; a successful litigant should be awarded costs unless for good reason the court directs otherwise
  • Issues of liabilities of a deceased person fall within the jurisdiction of the civil or succession courts, not the Environment and Land Court

Court orders

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  1. 1.The court grants reliefs in terms of prayers (a), (b), (c) and (d) of the plaint
  2. 2.The claim for mesne profits sought in paragraph (e) is declined
  3. 3.Each of the parties shall bear their own costs
  4. 4.The Defendant shall have a grace period of thirty (30) days within which to voluntarily vacate the suit properties in default of which eviction shall ensue strictly in accordance with the applicable law

Authorities

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Legislation

  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 15 Rule 2
  • Evidence Act (Cap 80)section 107
  • Civil Procedure Act (Cap 21)section 27

Cases cited (1)

  • Hussein Janmohamed & Sons Ltd Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over ownership, occupation and possession of land

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, "Faith Karimi Muchangi & 2 others v Peter Njeru Mvungu [2018] KEELC 2312 (KLR)", Case Analysis (2018). E.L.C. Case No. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2312/eng@2018-07-26

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