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ELCPartially AllowedNakuru ELC Case (not stated in excerpt)· [2019] KEELC 5114 (KLR)

Gachoka & another (Suing as the Administrators of the Estate of the Late Gachoka Kahawa) v Nduta & another (Environment and Land Case 22 of 2014) [2019] KEELC 5114 (KLR)

Environment and Land Court
22 May 2019
809 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Nakuru court ordered an occupier to vacate land she built on without the owner's consent, showing estate administrators can enforce a deceased relative's land title.

What this practically means

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Executive summary

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By amended plaint filed on 11th February 2014, the plaintiffs, administrators of the estate of Gachoka Kahawa (deceased), sued the defendants for encroaching on Nakuru Municipality Block 3/1104 and developing it without consent, seeking eviction and a permanent injunction. The 1st defendant did not enter appearance, file a defence or attend the hearing. The 2nd defendant entered appearance but filed no defence and died on 6th June 2014; no substitution application was made, so the suit against her abated on 6th June 2015 under Order 24 Rule 4 of the Civil Procedure Rules. At the hearing only the 1st plaintiff testified, producing the certificate of confirmation of grant in High Court Succession Cause No. 178 of 1998 (Nakuru) and the certificate of lease dated 12th November 1993. She explained that the defendants claimed the plot was allotted to them by the Municipal Council of Nakuru for charcoal selling but that the council had written to them on 10th November 1992 requiring them to vacate. The court found that the plaintiffs held the suit property in half shares each following distribution of the deceased's estate, that the 1st defendant occupied the land and had constructed wooden and mud walled houses without consent, and that the claim was proved on a balance of probabilities. Judgment was entered against the 1st defendant: she was ordered to vacate within thirty days, failing which eviction would follow under section 152G of the Land Act; a permanent injunction was granted; costs were awarded to the plaintiffs.

Key legal issues

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01

Proof of the plaintiffs' title and the 1st defendant's unlawful occupation

Holding

The plaintiffs, as administrators of the estate of the registered proprietor, proved on a balance of probabilities that the 1st defendant occupied the suit property and constructed structures thereon without consent

Reasoning

The plaintiffs produced the certificate of confirmation of grant and the certificate of lease showing the deceased owned the suit property, which was distributed to the plaintiffs in half shares each. The 1st defendant neither filed a defence nor attended the hearing, so the evidence stood uncontroverted. The plaintiffs testified that the 1st defendant constructed wooden and mud walled houses without consent, having refused to vacate despite the council's earlier notice.

02

Abatement of suit against the 2nd defendant

Holding

The suit against the 2nd defendant abated one year after her death as no application for substitution was filed

Reasoning

Counsel informed the court that the 2nd defendant died on 6th June 2014 and no application for substitution was filed. Under Order 24 Rule 4 of the Civil Procedure Rules the suit against her abated on 6th June 2015, so no relief could be granted against her.

p. 2

Legal principles established

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  • An uncontroverted claim supported by evidence may be proved on a balance of probabilities
  • A suit against a deceased defendant abates where no application for substitution is made within one year of death under Order 24 Rule 4

Court orders

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  1. 1.The 1st defendant to vacate the parcel of land known as Nakuru Municipality Block 3/1104 within thirty (30) days from the date of delivery of the judgment
  2. 2.In default, the 1st defendant to be evicted, the eviction to be done in accordance with section 152G(1)(d) to (h) of the Land Act, 2012
  3. 3.A permanent injunction restraining the 1st defendant, her agents, servants and/or employees from entering into or disposing of the suit property
  4. 4.Costs to the plaintiffs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 4
  • Land ActSection 152G(1)(d) to (h)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes; Land Act, 2012 section 152G; Civil Procedure Rules Order 24 Rule 4

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, "Gachoka & another (Suing as the Administrators of the Estate of the Late Gachoka Kahawa) v Nduta & another (Environment and Land Case 22 of 2014) [2019] KEELC 5114 (KLR)", Case Analysis (2019). Nakuru ELC Case (not stated in excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5114/eng@2019-05-22

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