Jane Awuor Ondiege & another v Ali Yusuf Malumbo & 4 others; Rural Electrification Authority (Third Party) [2020] KEELC 1833 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Capacity to enforce a contract of sale made by a deceased person
The plaintiffs, not having sued for and on behalf of the estate of the deceased, had no locus to enforce the sale agreement.
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.
Proof of the sale agreement
The sale agreement was not proved; the attesting witness was never called and PW-1 retracted her claim to have witnessed it.
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.
Enforceability for want of Land Control Board consent and limitation
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.
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.
Adverse possession
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.
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.
Compensation for cut trees
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.
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.
Legal principles established
#- 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
#- 1.The plaintiffs' suit is dismissed with costs to the defendants
- 2.The Third Party suit is dismissed with no orders as to costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- JULIUS KIAMBI M’IKIARA v LOISE KIENDE KIARA & 2 others[2024] KEELC 3689 (KLR)7 Mar 2024
- Leanard Otwori Juma v Francis Ongaki Mamboleo [2022] KEELC 803 (KLR)[2022] KEELC 803 (KLR)14 Mar 2022applied
Cite this brief
#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.