Pius Mulwa Masai (Suing as Legal Representative of the Estate of Masai Kabolelya) v Nzembi Musili & 5 others [2020] KEELC 2018 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Ownership of the suit property and proof of the Plaintiff's claim
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
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.
Whether an eviction order should issue against the Defendants
An eviction order issued against all Defendants and persons claiming through them
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.
Whether a permanent injunction should issue
The injunction was refused because the Defendants had all along been in possession
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.
Legal principles established
#- 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
#- 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.The prayer for permanent injunction declined since the Defendants have all along been in possession
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.