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ELCStruck Out· [2020] KEELC 3797 (KLR)

Samwel Ouma Ogalo v Zedekia Omolo Ogalo [2020] KEELC 3797 (KLR)

Environment and Land Court of Kenya
29 January 2020
GOG.M.A Ong'ondo
1,743 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost his eviction case because he couldn't prove he legally inherited the land, even though the defendant never showed up to defend it.

What this practically means

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Executive summary

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This first-instance judgment of the Environment and Land Court at Migori concerned land parcel North Sakwa/Kadera Lwala/710 (approximately 4.0 hectares), later subdivided into parcels 1793, 1794 and 1795. The plaintiff, Samwel Ouma Ogola, sued the defendant, Zedekia Omolo Ogalo, seeking a permanent injunction, eviction, and a declaration that he was the sole legal owner of the land, relying on a title deed dated 12th June 1995 and official searches. He alleged the defendant had placed a caution on the land, encroached, erected a homestead and cultivated it. The defendant filed a defence asserting that his late father had established a homestead for him on the land under Luo custom, that he had lived there for a long time and buried children there, and that clan elders had resolved the dispute in his favour; however, he adduced no evidence at the hearing. The suit, initially heard partly at Kisii, was transferred to Migori. The court framed three issues: proprietorship, the defendant's entitlement, and available reliefs. It held that although the plaintiff held a title deed conferring prima facie absolute proprietorship, he admitted under cross-examination that he had conducted succession over the estate of Adek Odamo without producing any grant or confirmation, so he was not the estate's legal representative. The court further found the defendant had been in occupation during the deceased's lifetime and had acquired title by implied trust under section 163 of the repealed Registered Land Act. Applying the principle that a plaintiff must prove his claim on a balance of probability even in formal proof, the court struck out the plaintiff's suit with costs to the defendant.

Key legal issues

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01

Whether the plaintiff proved proprietorship of the original land and the suit parcels

Holding

The plaintiff did not prove he was the legal representative of the estate of Adek Odamo from which he claimed the land, and so failed to prove his claim

Reasoning

PW1 relied on a title deed but admitted under cross-examination that he carried out succession in respect of the estate of Adek Odamo, his grandmother, yet produced no grant or confirmation. The estate of a deceased person vests in the legal representative; lacking such capacity, the plaintiff could not prove ownership of the land on a balance of probability.

p. 3
02

Whether the defendant had any entitlement to the original land

Holding

The court found that the defendant, having been in occupation during the lifetime of the deceased, acquired title to the portion he occupies by implied trust

Reasoning

PW1 testified that the defendant was already in possession of the disputed property during the lifetime of Adek Odamo. The court applied section 163 of the repealed Registered Land Act, which imported common law as modified by equity, to conclude that long occupation gave the defendant an implied trust over the portion he occupied.

p. 3
03

Burden of proof notwithstanding the defendant's failure to adduce evidence

Holding

Even though the defendant tendered no evidence and the claim was effectively undefended, the plaintiff still had to prove his claim on a balance of probability

Reasoning

The court invoked the settled principle that a plaintiff's claim does not become proved merely because it is unchallenged or heard by formal proof. Applying Kirugi v Kabiya, the court held that the burden remained on the plaintiff throughout, and since he failed to discharge it, the suit could not succeed despite the defendant's non-participation in the hearing.

p. 3

Legal principles established

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  • A plaintiff bears the burden of proving his claim on a balance of probability even where the case proceeds by way of formal proof
  • Where a registered proprietor's title is under challenge, he must go beyond the instrument of title and prove the legality of the acquisition
  • Long occupation by a person in occupation of land during the lifetime of a deceased may found title by implied trust
  • The estate of a deceased person is vested in the legal representative

Court orders

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  1. 1.The plaintiff's suit lodged by way of a plaint dated 22nd February 2013 and filed on 19th August 2013 be and is hereby struck out
  2. 2.Costs to the defendants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1)
  • Constitution of Kenya, 2010Article 40(6)
  • Constitution of Kenya, 2010Article 50(1)
  • Registered Land Act Cap 300 Laws of Kenya (Repealed)sections 27, 28, 30, 163
  • Land Registration Act, 2016 (2012)sections 2 and 26(1)
  • Civil Procedure Act (Cap 21) Laws of Kenyasection 2

Cases cited (6)

  • Galaxy Paints Co. Ltd –vs- Falcon Grounds Ltd
    (2000) 2EA 385
  • Munyu Maina –vs- Hiram Gathiha Maina
    (2013) eKLR
  • Trouistik Union International and another –vs- Jane Mbeyu and another
    (1993) eKLR
  • Mumo –vs- Makau
    (2002) 1 EA 170
  • Mutsonga –vs- Nyati
    (1984) KLR 425
  • Kirugi and another –vs- Kabiya and 3 others
    (1987) KLR 347
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (suit transferred from Kisii Environment and Land Court)

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, "Samwel Ouma Ogalo v Zedekia Omolo Ogalo [2020] KEELC 3797 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3797/eng@2020-01-29

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