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ELCAllowedELC Case No. 131 of 2013· [2019] KEELC 956 (KLR)

Julius Okoth Magina v Samwel Owoko [2019] KEELC 956 (KLR)

Environment & Land Court
7 November 2019
AOA. Omollo
1,580 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 ruled that a man claiming land was given to him as dowry had to prove it, and he was evicted.

What this practically means

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Executive summary

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The plaintiff, registered owner of plot No. Bukhayo/Ebusibwabo/3788, sued the defendant for eviction, demolition of illegal structures, vacant possession and a permanent injunction, alleging encroachment. The defendant, brought onto the land by his son-in-law Wilson Angalwa Makokha, defended the suit on the basis that the plot had been given to him as a dowry payment in 2006, that his occupation had been open and undisturbed, and that he had nowhere else to go, especially after his daughter (Wilson's wife) died in 2012. The plaintiff's evidence established that he sold a 100 by 100 ft portion to Wilson for Kshs.80,000 in 2006, bought it back for Kshs.120,000 on 22/9/2012 after Wilson failed to process a transfer, and subsequently subdivided and sold the land, retaining plots 5184 and 5186. Wilson (PW2) confirmed the defendant was only given temporary shelter and was compensated Kshs.350,000 by the National Irrigation Board. The court framed two issues: whether the land was gifted as dowry, and whether eviction orders could issue. It held the dowry/gift claim required corroboration and the defendant failed to discharge his burden of proof; the defendant was a licensee staying at Wilson's pleasure and, upon refund of the purchase price, the land reverted to the plaintiff. Hardship was no defence to the plaintiff's right to property. Judgment was entered for the plaintiff as prayed, with 120 days to surrender vacant possession, failing which lawful eviction was permitted, plus costs.

Key legal issues

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01

Whether the land was gifted to the defendant as dowry payment

Holding

The claim of dowry/gift was not proved; the defendant failed to discharge the burden of proof on his defence

Reasoning

The defendant alleged his son-in-law Wilson Angalwa gave him the plot as dowry payment in 2006. The court took judicial notice that dowry payment is not made in secret and therefore such a claim required corroboration. Mere assertion by the defendant, on whom the burden lay, was insufficient to establish the gift.

p. 2
02

Whether eviction orders could issue against the defendant

Holding

Yes - the defendant occupied at the pleasure of Wilson Angalwa; upon rescission of the sale and refund of the purchase price, the land reverted to the plaintiff, who was entitled to possession

Reasoning

The defendant was brought onto the land by Wilson Angalwa and had no transaction with the plaintiff. Once Wilson received the refund of Kshs.120,000, the suit land became the plaintiff's property. Having been served notice to move, the defendant's claim that he had nowhere to go could not override the plaintiff's right to property.

p. 2

Legal principles established

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  • A person alleging that land was given as dowry/gift bears the burden of proving it, and such a claim requires corroboration as dowry payment is not made in secret
  • A licensee occupying land at the pleasure of the owner cannot defeat the owner's right to dispose of the land, and lack of alternative accommodation is no justification for denying an owner his right to property

Court orders

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  1. 1.Judgment entered in the plaintiff's favour as prayed in the plaint
  2. 2.Defendant granted 120 days to surrender vacant possession of the portion of land BUKHAYO/EBUSIBWABO/5184(3788) he is occupying
  3. 3.In default, plaintiff granted liberty to evict the defendant using lawful means
  4. 4.Costs of the suit awarded to the plaintiff
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court Act)

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, "Julius Okoth Magina v Samwel Owoko [2019] KEELC 956 (KLR)", Case Analysis (2019). ELC Case No. 131 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/956/eng@2019-11-07

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