Thomas Omer & another v Land Registrar Kisumu & another [2021] KEELC 881 (KLR)
The bottom line
#A Kenyan court nullified illegally subdivided Kisumu land parcels, restoring them to the family of the original owner.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the subdivisions and transfers creating KISUMU/DAGO/990, 1208 and 1209
The subdivisions and transfers were illegal because the proprietors of the original parcels never participated in the subdivision
The court considered the plaintiff's uncontroverted evidence that the original parcel KISUMU/DAGO/509, registered to his grandfather Onyando Omer, was subdivided into KISUMU/DAGO/989 and 990 and eventually into 990, 1208 and 1209 without the knowledge or participation of the proprietor or the beneficiaries. The 1st defendant, though having filed pleadings and documents, called no evidence. The plaintiff's testimony therefore stood unchallenged, and the court found the transactions invalid, warranting nullification of the registers.
Effect of the defendant's failure to adduce evidence
The plaintiff's evidence was not controverted and was accepted as proved
Although the 1st defendant filed its defences and a witness statement was on record, the state called no evidence at the hearing. The court held that in the absence of any evidence rebutting the plaintiff's account of the subdivisions and transfers, the plaintiff's evidence was uncontroverted and could safely be acted upon, satisfying the court that the plaintiff had demonstrated the illegality of the transactions.
Legal principles established
#- A subdivision and transfer of land carried out without the participation of the proprietor of the original parcel is illegal
- Uncontroverted evidence stands admitted, including where a defendant fails to call any evidence
Court orders
#- 1.Orders compelling the 1st defendant to nullify the register of land parcels EAST KISUMU/DAGO/990, 1208 and 1209
- 2.That the said parcels revert in the names of the plaintiff's father Onyango Omer
- 3.Costs of the suit to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to the registration and rectification of registers of land parcels
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Omer & another v Land Registrar Kisumu & another [2021] KEELC 881 (KLR)", Case Analysis (2021). ELC Case No. 259 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/881/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.