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ELCDismissedELC Case No. 27 of 2016· [2019] KEELC 4371 (KLR)

Thomas Anzeze Musira v Samson Jarena [2019] KEELC 4371 (KLR)

Environment and Land Court
28 February 2019
NMN.A. MATHEKA
306 words in judgment
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The bottom line

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The court threw out an eviction claim because the land parcel had been subdivided and the owner relied on a 21-year-old title copy without a current search.

What this practically means

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Executive summary

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The plaintiff, claiming to be the registered owner of land parcel Kakamega/Viyalo/1, sued the defendant for an order of eviction and costs, alleging that the defendant had entered the property without lawful cause and refused to vacate. The defendant filed no defence and did not participate in the proceedings. Notwithstanding the undefended nature of the claim, the court examined whether the plaintiff had proved his case on a balance of probabilities. It noted the plaintiff's own admission of a prior, similar suit, Palasina Sibiro Lubeka v Thomas Anzeze, ELC Case No. 8 of 2015, in which judgment had been delivered on 27 September 2017, and in which it was established that parcel Kakamega/Viyalo/1 had ceased to exist, having been subdivided into North Maragoli/Viyalo/1654 and North Maragoli/Viyalo/1655. The court further observed that there was no current search certificate in the present matter and that the copy of the title produced was dated 1998. Concluding that the suit was frivolous and an abuse of the court process, the court found that the plaintiff had failed to prove his case and dismissed the suit with no orders as to costs. Judgment was delivered, dated and signed at Kakamega in open court on 28 February 2019 by N.A. Matheka, Judge.

Key legal issues

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01

Whether the plaintiff was entitled to an eviction order against the defendant

Holding

The suit was dismissed because the plaintiff failed to prove his case on a balance of probabilities; the suit property no longer existed and no current search certificate was produced.

Reasoning

The defendant did not defend the suit, but the plaintiff's own admissions undermined the claim. He acknowledged a prior suit, Palasina Sibiro Lubeka v Thomas Anzeze, ELC No. 8 of 2015, in which it was established that land parcel Kakamega/Viyalo/1 had ceased to exist, having been subdivided into North Maragoli/Viyalo/1654 and 1655. Judgment in that matter was delivered on 27 September 2017. The plaintiff produced no current search certificate, and the copy of the title produced was dated 1998. The court held the matter frivolous and an abuse of process.

p. 2

Legal principles established

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  • A plaintiff claiming eviction must prove his case on a balance of probabilities, including a current title; a stale title and a suit property that has ceased to exist render the suit frivolous and an abuse of court process.

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.No orders as to costs

Authorities

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Cases cited (1)

  • Palasina Sibiro Lubeka v Thomas Anzeze
    ELC Case No. 8 of 2015

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, "Thomas Anzeze Musira v Samson Jarena [2019] KEELC 4371 (KLR)", Case Analysis (2019). ELC Case No. 27 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4371/eng@2019-02-28

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