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ELCStruck Out· [2019] KEELC 3938 (KLR)

Mukunya Mugo A & another v Elizabeth Mugure Mukunya [2019] KEELC 3938 (KLR)

Environment and Land Court
28 March 2019
JKJ G Kemei
2,894 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan land claim failed because the plaintiffs never proved ownership and left a registered co-trustee out of the case.

What this practically means

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Executive summary

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The Plaintiffs, step-brothers and grandsons of the late Livingstone Mukunya Muriu, sued the Defendant, their aunt, seeking a declaration that they are joint bona fide owners in equal shares of LOC.1/KIUNYU/172, an eviction order against her, and a permanent injunction, on the basis that the deceased gifted the land to them inter vivos in 1999-2000, with the transfer registered in 2005. They alleged the register erroneously recorded the 1st Plaintiff and Winnie Wambui as trustees of MM-Minor, when Winnie Wambui alone should have been trustee of the 2nd Plaintiff, a minor at the time. The Defendant denied the claim, asserting the land remained part of the deceased's estate subject to a succession cause, that she had entered with the proprietor's blessing, and that the suit was an abuse of process given related litigation. The Defendant and her advocate failed to attend the hearing, which proceeded ex parte. The court framed three issues: ownership, orders and costs. It held that even an undefended claim must be proved. The title and green card showed registration to M M and Winnie Wambui as trustees of MM-Minor, which did not correspond to the Plaintiffs as named; the transfer document was not produced and the Land Registrar was not called, so the alleged error could not be verified, and no evidence showed dissolution of the trust. Further, Winnie Wambui, the registered co-owner and trustee, was not joined, offending the constitutional right to be heard. The court struck out the suit as non-suited and made no orders as to costs.

Key legal issues

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01

Whether the Plaintiffs proved legal ownership of the suit land

Holding

They did not; the register shows M M and Winnie Wambui as trustees of MM-Minor, and without the transfer document and testimony of the Land Registrar the alleged registration error could not be established

Reasoning

The title deed and green card show registration in the names of M M and Winnie Wambui as trustees of MM-Minor, which does not match the Plaintiffs' description of themselves (M M A and B). The transfer document was not produced and the Land Registrar was not called, so the alleged clerical error could not be verified. Absent evidence of dissolution of the trust, the 2nd Plaintiff remained a stranger to the registered ownership.

p. 3
02

Whether the suit could properly proceed in the absence of Winnie Wambui, the registered co-owner/trustee

Holding

No; the co-owner and trustee was a necessary party and her omission violated natural justice

Reasoning

Winnie Wambui is a registered co-owner in her capacity as trustee and any orders on the suit land would affect her adversely without hearing her. The court invoked Article 50(1) of the Constitution and case law on the right to be heard to hold that condemning her unheard would offend natural justice.

p. 4
03

Whether undefended claims dispense with proof

Holding

No; even in an undefended suit the plaintiff must discharge the burden of proof

Reasoning

The suit proceeded ex parte after service, but the court held that absence of contestation does not relieve a plaintiff of the evidential burden. The registered proprietor's rights vest under Section 24 of the Land Registration Act, 2012, subject to trusts, and the Plaintiffs' filings alone could not shift the registered ownership.

p. 3

Legal principles established

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  • A plaintiff bears the burden of proving its case even where the claim is undefended
  • A person likely to be adversely affected by orders of the court must be joined and afforded a right to be heard before such orders issue
  • A trustee of registered land is legally obligated to account to the beneficiary and should be made a party where orders affecting the trust asset are sought

Court orders

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  1. 1.The suit is struck out for being non-suited
  2. 2.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24
  • Registered Land Act, Cap 300 (repealed)Section 27
  • Registered Land Act, Cap 300 (repealed)Section 28
  • Registered Land Act, Cap 300 (repealed)Section 30
  • Registered Land Act, Cap 300 (repealed)Section 32(2)
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (2)

  • J M K Vs M W K & Anor
    (2015) EKLR
  • Mbaki & Others Vs Macharia & Anor
    (2005) 2 EA 206
Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly 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, "Mukunya Mugo A & another v Elizabeth Mugure Mukunya [2019] KEELC 3938 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3938/eng@2019-03-28

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