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ELCPartially AllowedELC Suit No. 356 of 2017· [2020] KEELC 198 (KLR)

Nzomo Kaleli v Muthini Kilei & 5 others [2020] KEELC 198 (KLR)

Environment and Land Court
23 December 2020
MGMBOGO C. G.
4,783 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Makueni ruled that a registered owner's title prevails unless family members prove a trust, and ordered the Defendants evicted.

What this practically means

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Executive summary

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The Plaintiff, Nzomo Kaleli, sued six Defendants - his sister and her children - seeking a declaration that he is the bona fide registered sole proprietor of parcels Nzaui/Mumbuni/334 and Nzaui/Kilili/29, a permanent injunction against interference, an eviction order supervised by the OCS Wote, and costs. He pleaded that he had allowed the Defendants to live on the land as an act of kindness, but that they wasted the property, laid claim to it, and refused to move to a parcel bought for them at Kitengei 'B' Settlement Scheme. The Defendants jointly denied the claim, asserting that the suitlands were ancestral land held with customary and trust rights, and that the Plaintiff's registration did not extinguish those rights. The court identified the sole issue as whether the Plaintiff held the parcels in trust for himself and the Defendants, since registration was not disputed. It found the Defendants failed to discharge the evidential burden of proving a trust: their clan witnesses admitted the registration was not fraudulent and could not produce the clan minute book, and the clan minutes were made three days after the suit was filed and carried no probative value. The Defendants also failed to rebut evidence that land had been bought for them at Mtito Andei. On trespass, the court held the Plaintiff's licence had lapsed following complaints about cutting trees and the Defendants' refusal to vacate. Judgment was entered for the Plaintiff with a declaration of sole ownership, a permanent injunction, an eviction order enforced by the OCS Wote, and costs of the suit. No damages for trespass were awarded as none were sought.

Key legal issues

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01

Whether the Plaintiff holds the suitlands in trust for the Defendants

Holding

No trust was established; the Defendants failed to discharge the evidential burden of proving the alleged customary/ancestral trust

Reasoning

It was undisputed that the Plaintiff is the registered owner of the two parcels. The Defendants claimed the land was ancestral family land held in trust, but their witnesses admitted no fraud attended the registration and no clan minute book was produced. The clan minutes were made three days after suit was filed and had no probative value. The Defendants also failed to rebut evidence that land was bought for them at Kitengei 'B' Settlement Scheme.

p. 5
02

Whether the Defendants are trespassers

Holding

The Defendants became trespassers once the Plaintiff's licence was revoked and they refused to vacate

Reasoning

The letter from P. M. Mutuku & Company Advocates showed the Plaintiff had complained of the Defendants cutting down his trees, so the licence to remain had lapsed. Their refusal to move to the Kitengei 'B' parcel bought for the 1st Defendant meant they had become trespassers on the Plaintiff's land.

p. 5
03

Probative value of clan minutes produced in litigation

Holding

Clan minutes dated three days after filing of suit, in proceedings the plaintiff did not willingly participate in, carry no probative value

Reasoning

Although Article 159(2)(c) of the Constitution recognises alternative dispute resolution, the minutes dated 6th November 2017 were prepared with an eye to the suit, the Plaintiff did not willingly participate, and the clan ignored his reference to the pending suit.

p. 5

Legal principles established

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  • Registration as proprietor vests absolute ownership of the land
  • A party alleging a trust over registered land bears the evidential burden of proving it

Court orders

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  1. 1.A declaration that the Plaintiff is the bona fide registered sole proprietor of parcels Nzaui/Mumbuni/334 and Nzaui/Kilili/29
  2. 2.A permanent injunction restraining the Defendants, their agents and/or servants from cutting down trees, planting, grazing, cultivating, subdividing, selling or otherwise interfering with or dealing with the suit properties
  3. 3.An order of eviction against the Defendants, their family members or anyone purporting to derive right of entry or re-entry from them from the suit parcels, with supervision of/enforcement by the Officer Commanding Station, Wote Makueni County
  4. 4.Costs of the suit to the Plaintiff
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court Act)

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, "Nzomo Kaleli v Muthini Kilei & 5 others [2020] KEELC 198 (KLR)", Case Analysis (2020). ELC Suit No. 356 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/198/eng@2020-12-23

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