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ELCPartially AllowedNot stated in judgment· [2019] KEELC 5099 (KLR)

Tunje v Jeu & 3 others (Environment & Land Case 18 of 2017) [2019] KEELC 5099 (KLR)

Environment and Land Court
26 June 2019
JOJ.O. Olola
1,202 words in judgment
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The bottom line

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A Kenyan court ruled that land sold in defiance of an adopted Land Disputes Tribunal decision conveyed nothing to buyers, and ordered the buyers evicted.

What this practically means

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Executive summary

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The plaintiff sued four defendants for vacant possession, eviction and a permanent injunction over an unregistered 2.5-acre parcel at Mbuyuni Village, Mwarakaya Sub-Location, Kilifi County, claiming beneficial ownership inherited from his ancestors. He alleged that in 2000 the 1st Defendant invaded the land and obstructed his family's use of it. The plaintiff successfully prosecuted Chonyi Division Land Disputes Tribunal Case No. 9 of 2000, which on 17th November 2000 decided in his favour and ordered the 1st Defendant to vacate. That award was adopted as an order of the Kilifi Senior Resident Magistrates Court on 25th October 2001. Unknown to the plaintiff, the 1st Defendant thereafter purported to sell the land to the 2nd, 3rd and 4th Defendants, who took possession and erected structures. All defendants entered appearance on 29th March 2017 through M/s Michira Messah & Company Advocates but filed no defence, so the suit proceeded by formal proof with the plaintiff as sole witness. The court held that the adopted Tribunal judgment bound the defendants, rendering the 1st Defendant's purported sale null, void and incapable of passing any valid interest. Finding the plaintiff's unchallenged evidence sufficient on a balance of probabilities, the court entered judgment for the plaintiff as prayed. Because no evidence of service of the notice of intention to sue was produced, the court made no orders as to costs. Judgment was delivered at Malindi on 26th June 2019 by J.O. Olola J.

Key legal issues

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01

Effect of adoption of a Land Disputes Tribunal award by the Magistrates Court

Holding

The adopted award became a binding judgment enforceable as a decree under the Civil Procedure Act

Reasoning

Section 7 of the Land Disputes Tribunal Act (now repealed) required the Tribunal's decision to be filed in the Magistrates Court, where judgment would be entered in accordance with it and a decree issued. The award was adopted by PM Mutani SM on 25 October 2001 in the presence of both parties, and no appeal or setting aside was shown. Consequently the sale by the 1st Defendant defeated by that judgment conveyed nothing to the 2nd to 4th Defendants.

p. 3
02

Standard of proof in an uncontroverted suit proceeding by formal proof

Holding

The plaintiff's unchallenged testimony proved his case on a balance of probabilities

Reasoning

The defendants entered appearance but filed no defence and adduced no evidence. The plaintiff testified as sole witness, showing ancestral/beneficial ownership, the 1st Defendant's invasion in 2000, the Tribunal decision in his favour, and the subsequent secret sale and continued wrongful occupation and construction. In the absence of any challenge, his testimony stood uncontradicted and satisfied the civil standard against all Defendants.

p. 3

Legal principles established

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  • A Land Disputes Tribunal decision adopted as judgment of the Magistrates Court is binding, and any alienation of the land in defiance of it is null and void and passes no interest

Court orders

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  1. 1.Judgment entered for the plaintiff as prayed in the Plaint
  2. 2.Vacant possession of the suit property and eviction of the Defendants with demolition of structures erected thereon (as prayed)
  3. 3.Permanent injunction restraining the Defendants from trespassing on, possessing, selling, alienating or dealing with the suit property (as prayed)
  4. 4.No orders as to costs

Authorities

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Legislation

  • Land Disputes Tribunal Act (now repealed)Section 7(1)
  • Civil Procedure Actenforcement of decree (s 7(2) reference)
Jurisdiction invoked
Original civil suit; first-instance claim for vacant possession and injunction over unregistered land in Kilifi County

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, "Tunje v Jeu & 3 others (Environment & Land Case 18 of 2017) [2019] KEELC 5099 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5099/eng@2019-06-26

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