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)
The bottom line
#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
#Executive summary
#Key legal issues
#Proof of the plaintiffs' title and the 1st defendant's unlawful occupation
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
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.
Abatement of suit against the 2nd defendant
The suit against the 2nd defendant abated one year after her death as no application for substitution was filed
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.
Legal principles established
#- 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
#- 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.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.A permanent injunction restraining the 1st defendant, her agents, servants and/or employees from entering into or disposing of the suit property
- 4.Costs to the plaintiffs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.