Wilson Onyango Akuma & 5 others v Town Council Nyamache & 4 others [2020] KEELC 2367 (KLR)
The bottom line
#A Kenyan court cancelled a title created only on paper over a family's land, ruling the landowner's unchallenged evidence prevails when government defendants produce nothing.
What this practically means
#Executive summary
#Key legal issues
#Whether land parcel Bassi/Bondonya/1734 was unlawfully created out of parcel 405
The court held parcel 1734 was superimposed on parcel 405 on paper only, without the registered owner's consent, and was unlawfully and illegally created; it does not exist on the ground, being fully occupied by the SDA Church and the plaintiffs' family developments.
The 1st plaintiff's uncontroverted evidence, corroborated by PW2 and PW3 and by documents from the Land Registrar and County Surveyor, showed he was allocated parcel 405 during adjudication, occupied it entire, and donated only the SDA church portion (later parcel 1840). The locus in quo visit and the County Surveyor's sketch plan confirmed permanent, long-standing developments by the plaintiffs and the church on the claimed parcel 1734, inconsistent with an unused public plot.
Whether the defendants' defence and the 2nd defendant's counterclaim were proved
Both were unproven because the defendants adduced no oral evidence and did not cross-examine the plaintiffs' witnesses; the counterclaim was dismissed.
Although served and represented at the outset, the 1st and 2nd defendants did not participate in the further proceedings and tendered no evidence. The court reasoned that a defence or counterclaim unsupported by evidence remains a mere statement of unproven facts, and unless the opposing party admits them, the court must find them unproven. The plaintiffs' consistent and credible evidence therefore stood unchallenged.
Whether the plaintiffs' occupation of parcel 1734 gives rise to any trust in favour of the defendants
No trust arose; the plaintiffs' occupation was as of right as the rightful owners.
Having found the creation of parcel 1734 unlawful, the court held that the plaintiffs' and the SDA Church's occupation of the land did not found any trust in favour of the defendants, since the land formed part of the 1st plaintiff's adjudicated parcel 405 and their occupation was by virtue of ownership, not any public purpose dedication.
Legal principles established
#- Where a party propounds a defence or counterclaim but fails to adduce evidence in support, it remains unproven and the uncontroverted evidence of the opposing party stands
- A title created on paper over land in a registered owner's possession, without his consent, is unlawful and liable to cancellation
Court orders
#- 1.The Land Registrar, Kisii ordered to cancel title number Bassi/Bondanya/1734 for having been unlawfully and illegally issued for nonexistent land
- 2.The plaintiffs declared entitled to the exclusive occupation and use of L.R Bassi/Bondonya/405 and/or any resultant subdivisions therefrom without any hindrance from the defendants
- 3.Each party to bear their own costs of the suit and counterclaim
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land parcels Bassi/Bondonya/405 and 1734 (Article 162(2)(b) environment and land jurisdiction inferred from court of first instance; the judgment does not expressly cite the provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Onyango Akuma & 5 others v Town Council Nyamache & 4 others [2020] KEELC 2367 (KLR)", Case Analysis (2020). ELC No. 419 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2367/eng@2020-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.