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ELCPartially AllowedELC 338 of 2015· [2020] KEELC 2961 (KLR)

Jeremiah Nyambogo Mollo v Pithalis Odoro & 2 others [2020] KEELC 2961 (KLR)

Environment and Land Court
30 April 2020
AOA.O. Ombwayo
1,159 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kisumu Environment and Land Court revoked a rival's land registration and ordered encroachers evicted after 90 days, because they never defended the claim.

What this practically means

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Executive summary

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The plaintiff, Jeremiah Nyambogo Omollo, sued Pithalis Odoro, Ainda Ongaro and George Odhiambo claiming ownership of Land Parcel No. Kisumu/Buoye/1352 by way of oral will and inheritance, the parcel having been the matrimonial home of his grandmother, Masela Adongo Bwodo, who forwarded his name for registration during demarcation. He sought nullification of the 1st defendant's registration, removal of a restriction on the title, eviction of the 2nd and 3rd defendants, exhumation of a body buried on the land, and a permanent restraint against interference with his possession. The defendants were served but filed no response and did not attend court; the plaintiff's evidence was therefore uncontroverted. The court found as a fact that the suit parcel was the home of Masela Adongo Bwodo, mother of the plaintiff's father John Omollo Oruma, that Masela forwarded the plaintiff's name for registration during demarcation, and that the defendants had encroached. The plaintiff was held to have proved his entitlement on a balance of probabilities. The court revoked/nullified the 1st defendant's name over the parcel and directed registration in the plaintiff's name, removed the restriction on the title, granted eviction of the 2nd and 3rd defendants after expiry of a 90 days' notice to be issued by the plaintiff, and restrained the defendants and their agents from interfering with the plaintiff's peaceful possession. Costs of the originating summons were awarded to the plaintiff against the defendants. The judgment was delivered electronically pursuant to COVID-19 directions. The prayer for exhumation was not dealt with in the final orders.

Key legal issues

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01

Proof of ownership of the suit land on a balance of probabilities

Holding

The plaintiff, whose name was forwarded for registration during demarcation and whose claim was affirmed by a panel of clan elders, proved entitlement to the land which the defendants had encroached upon.

Reasoning

The plaintiff's evidence stood uncontroverted as the defendants were served but filed no response and did not attend court. The court found as a fact that the parcel was the home of the plaintiff's grandmother, Masela Adongo Bwodo, who forwarded the plaintiff's name for registration during demarcation. On that unchallenged evidence the plaintiff discharged the civil burden of proof, entitling him to nullification of the 1st defendant's registration and eviction of the encroachers.

p. 2

Legal principles established

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  • Uncontroverted evidence of ownership of land, if sufficient to establish entitlement on a balance of probabilities, will justify nullification of a wrongful registration

Court orders

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  1. 1.The 1st defendant's name registered on LR No. Kisumu/Buoye/1352 is revoked/nullified and the parcel registered in the plaintiff's name
  2. 2.Any restriction registered on LR No. Kisumu/Buoye/1352 is removed
  3. 3.An order of eviction against the 2nd and 3rd defendants from the suit property after expiry of a 90 days' notice to be issued by the plaintiff
  4. 4.An order restraining the defendants, their agents, servants and/or employees from interfering with the plaintiff's peaceful possession and occupation of LR No. Kisumu/Buoye/1352
  5. 5.Costs of the originating summons borne by the defendants
Jurisdiction invoked
Environment and Land Court, Environment and Land Court Act (original jurisdiction over land disputes); originating summons

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, "Jeremiah Nyambogo Mollo v Pithalis Odoro & 2 others [2020] KEELC 2961 (KLR)", Case Analysis (2020). ELC 338 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2961/eng@2020-04-30

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