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ELCDismissed· [2020] KEELC 1833 (KLR)

Jane Awuor Ondiege & another v Ali Yusuf Malumbo & 4 others; Rural Electrification Authority (Third Party) [2020] KEELC 1833 (KLR)

Environment and Land Court
4 June 2020
4,011 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The court dismissed a family's land claim in Mombasa because they couldn't prove the sale, took too long to sue, and sued the wrong power company over cut trees.

What this practically means

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Executive summary

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The plaintiffs sued in 2013 claiming beneficial ownership of Kwale/Mabokoni/353, alleging the 1st plaintiff's deceased husband purchased it in 1983 from the 1st to 3rd defendants for KShs. 7,000/-, though transfer was never effected. They sought declarations of ownership through purchase and adverse possession, revocation of the 4th defendant's title, an injunction, and compensation for over 300 trees cut for a power line authorised by the 4th defendant and executed allegedly by the 5th defendant, Kenya Power. REA was joined as Third Party. The court first held the suit was not brought on behalf of the deceased's estate, so the plaintiffs could not enforce the alleged sale agreement. The sale agreement itself was unproved: the vendors denied it, the attesting witness was not called, and PW-1 retracted her claim to have witnessed it. Any 1983 sale also lacked Land Control Board consent and was time barred under Section 7 of the Limitation of Actions Act. The adverse possession claim failed because the plaintiffs never proved when they took possession, produced no tangible evidence of occupation, and a 2008 Tribunal complaint by the 4th defendant contradicted quiet possession. The tree compensation claim failed under quicquid plantatur solo solo cedit, for want of proof of the number and value of trees, and because the wrong party was sued - REA, not KPLC, constructed the line. The suit was dismissed with costs to the defendants; the Third Party suit was dismissed with no orders as to costs.

Key legal issues

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01

Capacity to enforce a contract of sale made by a deceased person

Holding

The plaintiffs, not having sued for and on behalf of the estate of the deceased, had no locus to enforce the sale agreement.

Reasoning

The title of the case did not indicate it was brought for the estate, no averment in the plaint stated so, and no prayer sought a declaration for the estate's benefit. The court therefore approached the suit as one by the plaintiffs on their own behalf, which defeated any claim to enforce the deceased's alleged contract.

p. 3
02

Proof of the sale agreement

Holding

The sale agreement was not proved; the attesting witness was never called and PW-1 retracted her claim to have witnessed it.

Reasoning

The alleged vendors denied execution. Under Section 70 of the Evidence Act the plaintiffs had to prove the signatures, but the sole witness conceded she did not witness the agreement and did not know the vendors' handwriting. The named attesting witness, Philip Aseka Oluchina, was never called.

p. 4
03

Enforceability for want of Land Control Board consent and limitation

Holding

Any 1983 sale of agricultural land required Land Control Board consent and a suit to enforce it was time barred under Section 7 of the Limitation of Actions Act.

Reasoning

There was no evidence of consent having been applied for or obtained under the Land Control Act. A 1983 agreement should have been enforced by 1995 under the 12-year limitation period; the 2013 suit was clearly time barred.

p. 4
04

Adverse possession

Holding

The claim failed: the plaintiffs did not prove when they took possession, the nature of their occupation, or quiet and continuous possession for 12 years.

Reasoning

PW-1 never stated when possession was taken, produced no tangible evidence of residence or occupation, and a 2008 Land Disputes Tribunal complaint by the 4th defendant contradicted peaceful possession. The court found the plaintiffs' approach to the suit too casual.

p. 4
05

Compensation for cut trees

Holding

The claim failed as trees follow the land, no evidence of number or value of trees was given, and the wrong party (KPLC instead of REA) was sued.

Reasoning

Having dismissed the land claim, the tree claim fell with it. Even otherwise, the evidence of DW-3 showed the line was constructed by REA, which received the way-leave consent from the 4th defendant, and the plaintiffs did not sue REA as a principal defendant.

p. 4

Legal principles established

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  • A person alleging that a document was signed by another must prove the signature or handwriting under Section 70 of the Evidence Act.
  • Adverse possession requires open, quiet, peaceful and continuous possession for an uninterrupted 12 years, proved by cogent evidence including the date possession was taken.
  • Trees form part of the land under the principle quicquid plantatur solo solo cedit.

Court orders

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  1. 1.The plaintiffs' suit is dismissed with costs to the defendants
  2. 2.The Third Party suit is dismissed with no orders as to costs

Authorities

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Legislation

  • Evidence ActSection 70
  • Land Control ActCap 302 (consent requirement)
  • Limitation of Actions ActSection 7
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jane Awuor Ondiege & another v Ali Yusuf Malumbo & 4 others; Rural Electrification Authority (Third Party) [2020] KEELC 1833 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1833/eng@2020-06-04

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