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ELCPartially AllowedELC Cause No. 760 of 2016· [2018] KEELC 4233 (KLR)

Joyce Nyaboke Mogoki v Wilfred Mongare [2018] KEELC 4233 (KLR)

Environment and Land Court
23 February 2018
785 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kisii upheld a woman-to-woman marriage under Kisii customary law, entitling the wife to the land she had occupied for over 30 years.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 7 March 2012 seeking a declaration that she was entitled to an equal portion of LR. West Kitutu/Ikuruma/691, a permanent injunction restraining the defendant from evicting her and her family, and an order compelling transfer of that share (in default, execution by the Deputy Registrar). She pleaded that in 1978 she was married under Abagusii customary law in a woman-to-woman marriage to Yusafia Moraa Seremani, the registered proprietor of the suit land, and that she had occupied half the parcel for over 30 years, growing tea and coffee and building three houses, until the defendant had himself registered as sole proprietor and begun harassing her to evict her. The defendant filed a defence contending the land was transferred to him voluntarily by his deceased father and putting the plaintiff to strict proof, but neither he nor his advocates appeared at the hearing. The court found the plaintiff's testimony unconverted and unchallenged; supported by receipts of tea sold to Itongo tea factory and an official search showing registration in the name of Seremani Sino, she proved on a balance of probabilities her Kisii customary marriage to the first wife of the registered proprietor. Judgment was entered for the plaintiff: a permanent injunction protecting her occupation of the portion she occupies, a declaration of entitlement to that portion, an order for its transfer within 60 days with default execution by the Deputy Registrar, and costs of the suit to the plaintiff.

Key legal issues

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01

Proof of woman-to-woman customary marriage and resulting proprietary entitlement

Holding

The plaintiff proved on a balance of probabilities that she was married under Kisii customary law to the first wife of the registered proprietor, entitling her to the portion she occupies

Reasoning

The defendant, though served, did not appear and the plaintiff's testimony remained unchallenged and unconverted. She testified she had occupied and cultivated the land for over 30 years, built three houses, and produced receipts for tea sold from the land plus an official search showing registration in the name of Seremani Sino. On that uncontroverted evidence the court found the customary marriage proved and held she was entitled to an equal share of the land.

p. 2

Legal principles established

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  • A wife in a woman-to-woman marriage under Kisii customary law who proves the marriage on a balance of probabilities is entitled to a share of land registered in the name of the deceased first wife

Court orders

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  1. 1.A permanent injunction restraining the defendant, his agents, relatives or servants from ejecting, chasing, evicting and/or in any way interfering with the plaintiff's occupation and possession and/or use of the clearly demarcated portion she currently occupies on the suit land
  2. 2.A declaration that the plaintiff is entitled to the portion she occupies on land Reference No. West Kitutu/Ikuruma/691
  3. 3.An order that the defendant transfer that portion to the plaintiff within 60 days, in default the Deputy Registrar to do all such transfers and incidentals in favour of the plaintiff
  4. 4.Costs of the suit to the plaintiff
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (ELC Cause No. 760 of 2016)

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, "Joyce Nyaboke Mogoki v Wilfred Mongare [2018] KEELC 4233 (KLR)", Case Analysis (2018). ELC Cause No. 760 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4233/eng@2018-02-23

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