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ELCPartially AllowedE.L.C. Case No. 235 of 2014 (Formerly ELC Kerugoya 91 of 2013)· [2020] KEELC 2018 (KLR)

Pius Mulwa Masai (Suing as Legal Representative of the Estate of Masai Kabolelya) v Nzembi Musili & 5 others [2020] KEELC 2018 (KLR)

Environment and Land Court
27 February 2020
1,043 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court evicted six occupants from a deceased man's land after they failed to produce any evidence supporting their claim of council allocation.

What this practically means

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Executive summary

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The Plaintiff, as legal representative of the estate of Masai Kabolelya, sued six Defendants seeking a permanent injunction and eviction from parcel No. 1247 in Karaba Adjudication Section, alleging that they had entered and commenced construction on the deceased's property without consent. The Defendants denied trespass and claimed they had been allocated the suit property by the County Council of Mbeere, pleading laches, acquiescence and limitation. An ex parte judgment of 8th July 2019 substantially allowing the claim was set aside by consent on 7th October 2019 on condition of a fresh hearing and costs to the Plaintiff. At the fresh hearing the Defendants' advocate failed to secure an adjournment, and the Defendants closed their case without testifying. The Plaintiff, as sole witness, adopted his witness statement and produced a death certificate, a limited grant ad litem and a letter from the Land Adjudication Officer, Mbeere District, though he had no letter of allotment. The court held that the Defendants' failure to tender evidence left the Plaintiff's claim uncontroverted, and that on a balance of probabilities the suit property belonged to the Plaintiff's late father. Judgment was entered for the Plaintiff: an eviction order issued against all the Defendants and persons claiming through them, the prayer for a permanent injunction was declined because the Defendants had all along been in possession, and the Plaintiff was awarded costs of the suit. Judgment was delivered at Embu on 27th February 2020 by Y.M. Angima, J.

Key legal issues

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01

Ownership of the suit property and proof of the Plaintiff's claim

Holding

The Plaintiff proved on a balance of probabilities that the suit property belonged to his late father, per the records of the Land Adjudication Office, which was uncontroverted

Reasoning

The Plaintiff, as sole witness, adopted his witness statement and produced the death certificate, a limited grant ad litem, and a letter from the Land Adjudication Officer, Mbeere District. Although he lacked the letter of allotment, the Defendants tendered no evidence despite being given the opportunity, so the court accepted the Land Adjudication records as proof of ownership and found the claim proved on a balance of probabilities.

p. 2
02

Whether an eviction order should issue against the Defendants

Holding

An eviction order issued against all Defendants and persons claiming through them

Reasoning

Having found the property belonged to the deceased owner's estate and that the Defendants had entered and commenced construction without the owner's consent, and given their failure to adduce evidence supporting the alleged allocation by the defunct County Council of Mbeere, the court granted eviction as an incident of the proved ownership claim.

p. 2
03

Whether a permanent injunction should issue

Holding

The injunction was refused because the Defendants had all along been in possession

Reasoning

Although trespass was established, the court declined the injunctive relief on the practical ground that the Defendants were already in occupation; eviction was the appropriate remedy rather than an order restraining entry, which would serve no purpose against persons already in possession.

p. 2

Legal principles established

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  • Where defendants fail to tender evidence to controvert a plaintiff's claim despite being accorded an opportunity, the court may accept the plaintiff's uncontroverted evidence
  • Civil claims are determined on a balance of probabilities

Court orders

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  1. 1.An eviction order issued against all the Defendants, their agents, servants, employees or any other person claiming through them from parcel No. 1247 within Karaba Adjudication Section
  2. 2.The prayer for permanent injunction declined since the Defendants have all along been in possession
  3. 3.Plaintiff awarded costs of the suit against the Defendants
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property (parcel No. 1247, Karaba Adjudication Section)

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, "Pius Mulwa Masai (Suing as Legal Representative of the Estate of Masai Kabolelya) v Nzembi Musili & 5 others [2020] KEELC 2018 (KLR)", Case Analysis (2020). E.L.C. Case No. 235 of 2014 (Formerly ELC Kerugoya 91 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2018/eng@2020-02-27

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