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ELCPartially AllowedELC Case No. 17 of 2018· [2020] KEELC 2456 (KLR)

Ndambuki Mutule Mutweleli v Lazarus Muthiani Ngolota & 2 others [2020] KEELC 2456 (KLR)

Environment & Land Court of Kenya
26 May 2020
2,367 words in judgment
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The bottom line

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Kenya's Environment & Land Court confirmed a 1988 family land-sharing agreement and ordered the Makueni District Surveyor to rectify the land register to 6.5 hectares.

What this practically means

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Executive summary

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The Applicant filed an Originating Summons dated 28/02/2018 seeking an order compelling the Makueni District Surveyor to confirm that parcels Nzaui/Kalamba/615 and 269 measure 6.5 Ha and to rectify the register accordingly, plus a permanent injunction against the 1st and 2nd Respondents and costs. His case was that the suit lands formed his late father's unsurveyed ancestral land, that during adjudication his late brother took the larger parcel (10 Ha) while he received 3 Ha, and that a 1988 elders' meeting formalized an agreement to cede 3.5 Ha to equalize the shares. He feared losing the 3.5 Ha upon confirmation of a grant in Makueni High Court Succession Cause No. 17 of 2017. The Respondents denied the ancestral land's existence, denied the elders' meeting, alleged the agreement was void for want of execution, and claimed coercion, duress and undue influence. The court canvassed viva voce evidence. It found credible that the father owned unsurveyed land, accepted the minutes and testimony of two witnesses present at the 1988 meeting, held that the elders merely witnessed a pre-existing agreement so PW1's purchase of land from the Applicant did not compromise his evidence, and held non-execution of the agreement was not fatal. The 1st Respondent admitted adducing no proof of coercion. Judgment was entered for the Applicant: the Surveyor was ordered to confirm the 6.5 Ha and rectify the register, with costs to the Respondents. The injunction sought was not included in the final orders.

Key legal issues

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01

Whether the Applicant proved an agreement to equalize the family land between him and his late brother on a balance of probabilities

Holding

The Applicant proved his case to the required civil standard; the evidence of the 1988 elders' meeting and minutes established the agreement to cede 3.5 Ha

Reasoning

The court found the suit lands were part of the unsurveyed ancestral land of the parties' father. The Applicant produced minutes of the 08/09/1988 meeting and called two witnesses present when the agreement was made. The elders only witnessed an already-reached agreement, so PW1's purchase of land from the Applicant did not diminish his capacity as a witness. The 1st Respondent admitted he was not privy to the agreement and adduced no evidence of coercion.

p. 3
02

Whether the alleged coercion, duress and undue influence was proved by the Respondents

Holding

The allegation of coercion was not proved and remains an allegation

Reasoning

The 1st Respondent conceded on cross-examination that he had not produced evidence showing Muthiani was coerced to give the Applicant 3.5 Ha. Since the burden of proving coercion rested on the party asserting it, the claim failed. The court also noted that even absent a valid agreement, no justification existed for the heirs of Muthiani to end up with a larger portion of ancestral land.

p. 3
03

Whether non-execution of the 1988 agreement was fatal to the Applicant's case

Holding

Non-execution was not fatal since witnesses testified to the contents of the agreement

Reasoning

The 1st Respondent argued the agreement was null and void ab initio for want of execution. The court held that PW1 and PW2, who were present when the agreement was made, testified on its contents, which proved the agreement notwithstanding absence of thumbprints or signatures. In that era, people did not customarily sign or thumbprint minutes.

p. 3

Legal principles established

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  • Non-execution of an agreement is not fatal where witnesses who were present at its making testify to its contents
  • The standard of proof in civil cases is met if the proposition is more likely to be true than not true

Court orders

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  1. 1.An order compelling the Makueni District Surveyor to visit L.R NZAUI/KALAMBA/615 and NZAUI/KALAMBA/269 to confirm that the parcel of land is 6.5 Ha and rectify the register to read 6.5 Ha so as to amend the title to read 6.5 Ha
  2. 2.Costs to be borne by the Respondents

Authorities

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Legislation

  • Land Registration Actsection 21(1)

Cases cited (1)

  • Re B (2008) UKHL 35
    [2008] UKHL 35
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes)

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, "Ndambuki Mutule Mutweleli v Lazarus Muthiani Ngolota & 2 others [2020] KEELC 2456 (KLR)", Case Analysis (2020). ELC Case No. 17 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2456/eng@2020-05-26

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