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ELCDismissedELC Suit No. 34 of 2017 (Consolidated with ELC Suit No. 22 of 2018)· [2020] KEELC 2382 (KLR)

Alphonce Ngungi Wambua v Alphonce Ngungi Wambua & 4 others [2020] KEELC 2382 (KLR)

Environment & Land Court
28 May 2020
4,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a brother's land claim because he never challenged the family land sharing while his mother was alive, and now he must vacate.

What this practically means

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Executive summary

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This consolidated first-instance dispute before the Environment and Land Court at Makueni arose between brothers over family land in the Ukia/Kilala area. In ELC No. 34 of 2017 the Plaintiff, registered owner of Ukia/Kilala/767 (1.3 ha), claimed that his elder brother, the 1st Defendant and registered owner of Ukia/Kilala/524 (2.8 ha), had fraudulently acquired an extra 1.5 hectares when overseeing the subdivision of their late parents' unsurveyed land. He sought consolidation and equal subdivision of the two titles, or alternatively carving out 0.75 Ha, plus an easement over an access road. In the consolidated ELC No. 22 of 2018, the 1st Defendant claimed the Plaintiff was trespassing on his parcel Ukia/Kilala/672, bought from Kyonda by their late mother. The court framed two issues: whether the two parcels should have been shared equally, and whether the Defendant was entitled to the orders sought in his plaint. The court held that it was the parties' mother who decided how the land was shared during adjudication; the Plaintiff failed to challenge the disparity during his parents' lifetime and his claim was non-suited for failure to take out letters of administration to represent his late parents' estate. The court found the suit malicious. On parcel 672, it accepted the Defendant's uncontroverted evidence that he financed the purchase. The Plaintiff's suit was dismissed with costs to the 1st, 2nd and 3rd Defendants; judgment was entered for the Defendant on the counterclaim, with the Plaintiff given 120 days to vacate parcel 672, failing which eviction could be sought, plus costs.

Key legal issues

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01

Whether parcels Ukia/Kilala/524 and 767 were to be shared equally from the parents' unsurveyed land

Holding

No. The mother subdivided the land during the adjudication process and the Plaintiff never questioned the disparity during her lifetime; the Plaintiff also failed to obtain letters of administration.

Reasoning

Both parcels were originally the parents' unsurveyed land. During adjudication the mother, then alive, had the land subdivided and instructed the sons to collect their title deeds. The Plaintiff's assertion that the 1st Defendant oversaw the adjudication was tenuous, contradicted by the Defendant and unsupported by records. The Plaintiff did not challenge the sharing during his parents' lifetime and did not take out letters of administration to represent the estate, so the claim was non-suited.

p. 5
02

Whether the Defendant (Plaintiff in ELC No. 22/18) is entitled to orders over Ukia/Kilala/672

Holding

Yes. The 1st Defendant proved on a balance of probabilities that he gave his mother money for the purchase of the land, and the Plaintiff was ordered to vacate.

Reasoning

It was common ground that the land was bought from Kyonda by the parties' late mother. The 1st Defendant gave uncontroverted evidence that he was in gainful employment when the land was bought and gave his mother Kshs.11,000/= towards the purchase. The court believed him, noting he was a candid witness who had allowed the Plaintiff to occupy his house. The claim in ELC No. 22/18, treated as a counterclaim, thus succeeded.

p. 5
03

Whether the removal of the caution by the Land Registrar was unprocedural

Holding

No. The Plaintiff admitted in cross-examination that he was served with the notice of the caution by the Registrar, so the removal was not unprocedural.

Reasoning

Counsel for the Plaintiff submitted that no notice was given to the cautioner and no objection proceedings were produced, relying on s.73 of the Land Registration Act and the Rutere case. However, the court noted that the Plaintiff himself admitted in cross-examination that he was served with notice concerning the caution, which defeated the argument that the removal process was illegal.

p. 4

Legal principles established

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  • A person who feels aggrieved by how a parent dealt with property during the parent's lifetime must question it during the parent's lifetime, and cannot wait until after death
  • A claim to a deceased parent's land must be pursued through succession, by taking out letters of administration to represent the estate

Court orders

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  1. 1.Dismissal of the Plaintiff's suit with costs to the 1st, 2nd and 3rd Defendants
  2. 2.Judgment entered for the Defendant against the Plaintiff in the counterclaim (ELC No. 22 of 2018 treated as a counterclaim)
  3. 3.The Plaintiff has 120 days from the date of judgment to vacate from the Defendant's land parcel number Ukia/Kilala/672, failing which the Defendant may apply for an order of eviction
  4. 4.Costs of the suit to the Defendant

Authorities

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Legislation

  • Evidence ActSection 107(1)
  • Land Registration ActSection 73

Cases cited (2)

  • Lawrence Mugambi Rutere vs. Nelly Wachira & Another; District Land Registrar Mbeere (Interested Party)
    [2019] eKLR
  • Paul Kathuni Gichunge vs. Victor Polycarp Ntwiga & 2 Others
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over land parcels in Makueni County

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, "Alphonce Ngungi Wambua v Alphonce Ngungi Wambua & 4 others [2020] KEELC 2382 (KLR)", Case Analysis (2020). ELC Suit No. 34 of 2017 (Consolidated with ELC Suit No. 22 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2382/eng@2020-05-28

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