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ELCAllowedNot stated in judgment (Plaint dated 7th June, 2018)· [2019] KEELC 741 (KLR)

Ali Omar Kalama v Robert Katana [2019] KEELC 741 (KLR)

Environment and Land Court
22 November 2019
JOJ.O. Olola
1,054 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 cancelled a landowner's title after he failed to defend the case, returning the land to the deceased original owner's family.

What this practically means

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Executive summary

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By a Plaint filed on 7th June, 2018, Ali Omar Kalama, as Administrator of the Estate of the late Omar Charo alias Katana Charo, sued Robert Katana seeking cancellation of the Defendant's registration as proprietor of Title No. Kilifi/Ngerenyi/310, an order dispensing with production of the original title deed, a permanent injunction against interference with the property, and costs. The Plaintiff contended that the deceased was the original allottee of the parcel, having been allocated it by the Settlement Fund Trustees and having made payments from as early as 1973, but died on 5th January, 1991 before a title deed issued. The Defendant was registered as proprietor on 29th August, 2006 and in May 2017 fenced off half the property claiming ownership. The Plaintiff alleged the registration was procured through mistake, omission, misrepresentation and/or fraud and was null and void. The Defendant entered appearance on 29th June, 2018 but filed no defence and did not participate in the trial. The Plaintiff testified as the sole witness, producing a death certificate and receipts evidencing the deceased's payments to the Settlement Fund Trustees. The court found that the Defendant, who occupied an adjacent parcel, offered no explanation as to how he came to be registered, leaving the Plaintiff's evidence uncontroverted and undoubted. The court held the claim proved on a balance of probabilities and entered judgment for the Plaintiff as prayed in the Plaint, including cancellation of the Defendant's registration, the injunction, and costs of the suit. Judgment dated, signed and delivered at Malindi on 22nd November, 2019.

Key legal issues

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Whether the Plaintiff proved that the deceased was the original allottee of the suit property and that the Defendant's registration was irregular

Holding

The Plaintiff proved his case on a balance of probabilities; the deceased had been making payments to the Settlement Fund Trustees since the 1970s, and the Defendant, despite service and appearance, offered no explanation for his registration.

Reasoning

The Plaintiff testified as sole witness, producing a death certificate and receipts showing the deceased's payments to the Settlement Fund Trustees for Plot No. 310 Ngerenyi from 1973. The deceased died in 1991 before title issued, yet the Defendant was registered in 2006. The Defendant filed a memorandum of appearance but no defence and gave no explanation of how he acquired the property, leaving the Plaintiff's evidence unchallenged and credible.

p. 2

Legal principles established

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  • Where a defendant fails to file a defence or participate in proceedings, an uncontroverted claim supported by credible evidence may be proved on a balance of probabilities.

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendant as prayed in the Plaint
  2. 2.An order to the Land Registrar – Kilifi Land Registry to cancel the registration of the Defendant as owner of Title No. Kilifi/Ngerenyi/310 and register the title in the name of the Plaintiff as administrator of the estate of the deceased
  3. 3.An order that the Registrar cancel the said registration without requiring the Plaintiff to produce the Original Title Deed other than the court's order
  4. 4.Permanent injunction restraining the Defendant, his servants, agents and any person claiming through him from trespassing upon, selling, building structures on, charging, fencing or otherwise dealing with the suit property
  5. 5.Costs of the suit awarded to the Plaintiff
Jurisdiction invoked
Original civil jurisdiction over land disputes; suit instituted by Plaint under civil procedure (specific provision not cited in judgment)

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, "Ali Omar Kalama v Robert Katana [2019] KEELC 741 (KLR)", Case Analysis (2019). Not stated in judgment (Plaint dated 7th June, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/741/eng@2019-11-22

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