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ELCPartially AllowedNot stated in judgment (Plaint dated 12th June 2017)· [2019] KEELC 847 (KLR)

Muchi Gchukia v Francis Ndirangu Njoroge & 2 others [2019] KEELC 847 (KLR)

Environment and Land Court
8 November 2019
LGL. Gacheru
1,358 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a plaint dated 12th June 2017, the Plaintiff sued the three registered co-proprietors of Kiganjo/Gachika/3886, seeking orders compelling them to execute partition instruments so he could obtain his share free of their rights, plus an order authorising the Court Executive Officer to execute on any defaulting Defendant, general damages, and costs. He averred that the parties were registered as proprietors in common on 15th April 2016, that he held an undivided share, and that the Defendants had unreasonably refused to join him in obtaining Land Control Board consent to partition. The Defendants were served but did not enter appearance or file a defence, and the suit proceeded to formal proof on 29th November 2018, where the Plaintiff alone testified and produced his documents, including a title deed, a consent dated 24th October 1999 and a transfer of undivided shares. The court held that although unopposed, the Plaintiff still had to prove his case on a balance of probability, citing Shaneebal Limited, Kenya Power & Lighting Company Limited and Gichinga Kibutha. It found the Plaintiff registered owner of 1.00 acre in common with the Defendants and entitled to partition of that share, but held he was entitled to only 1 acre (0.405 hectares), not the 1.61 acres/0.651 hectares claimed. General damages were refused for want of proof. The suit was allowed in terms of prayers (a), (b) and (d), with the Deputy Registrar (not the Executive Officer) directed to execute instruments on default, the Plaintiff receiving one acre excised from the suit land, with costs.

Key legal issues

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01

Whether the Plaintiff, as registered co-owner in common, is entitled to an order for partition and transfer of his share

Holding

The Plaintiff proved he is registered owner holding 1.00 acre in common with the Defendants and is entitled to partition of that share

Reasoning

The Plaintiff produced a title deed evidencing co-registration with the Defendants, a consent dated 24th October 1999 and a transfer of undivided shares. His unchallenged testimony that the parties would cooperate to partition when required remained credible, and the court accepted his version of events.

p. 2
02

Whether a plaintiff whose evidence is unchallenged automatically succeeds

Holding

No - the plaintiff must still discharge the burden of proof on a balance of probability

Reasoning

Relying on Shaneebal Limited, Kenya Power & Lighting Co Ltd and Gichinga Kibutha, the court held that uncontroverted evidence must still be interrogated by the court; the burden of proof remains on the plaintiff notwithstanding the defendants' non-appearance.

p. 2
03

Whether general damages were payable

Holding

General damages refused for lack of proof

Reasoning

The plaintiff did not avail any evidence quantifying or proving the hardship or loss alleged from the Defendants' refusal to cooperate. Applying the principle that whoever alleges must prove, the prayer for general damages failed.

p. 2

Legal principles established

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  • Uncontroverted evidence does not relieve a plaintiff of the burden of proving the case on a balance of probability
  • A court must interrogate unchallenged evidence; ex parte evidence is not automatic proof of a case

Court orders

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  1. 1.An order directing each of the Defendants to execute the necessary legal instruments to partition the suit land so that the Plaintiff gets his fair share free of the rights of the Defendants
  2. 2.An order directing the Deputy Registrar of the Court to execute the necessary legal instruments on behalf of any or all Defendants who may fail or default in executing the same
  3. 3.Costs of the suit (prayer (d) allowed)
  4. 4.Plaintiff to get only 1 acre to be excised from the suit land

Authorities

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Cases cited (4)

  • Shaneebal Limited Vs County Government of Machakos
    (2018) eKLR
  • Karuru Munyororo Vs Joseph Ndumia Murage & Another
    Nyeri HCCC No.95 of 1988
  • Kenya Power & Lighting Company Limited Vs Nathan Karanja Gachoka & Another
    [2016] eKLR
  • Gichinga Kibutha Vs Carooline Nduku
    (2018) eKLR
Jurisdiction invoked
Original civil suit (plaint) for partition of land held in common; no specific constitutional/statutory jurisdictional provision stated in the 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, "Muchi Gchukia v Francis Ndirangu Njoroge & 2 others [2019] KEELC 847 (KLR)", Case Analysis (2019). Not stated in judgment (Plaint dated 12th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/847/eng@2019-11-08

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