Moses Ogutu Odongo v Johnstone Otieno Olondo & 3 others [2021] KEELC 2142 (KLR)
The bottom line
#A Kenyan court ordered a family to exhume a relative buried on land they did not own, confirming that unproven fraud claims fail and registered owners win.
What this practically means
#Executive summary
#Key legal issues
#Sub judice
The suit is not sub judice; the earlier suit was struck out without touching its merits, and the defendants did not prove the counterclaim remained pending.
Both parties admitted Nyando PMCC No. 121 of 2011 involved the same parties and subject matter. The court examined the handwritten proceedings and found the earlier suit was struck out on 5/10/2011 for non-compliance with section 30(1) of the Land Adjudication Act, without consideration on the merits. The court never examined the counterclaim in that suit, and the defendants, who did not attend the hearing, failed to prove that the counterclaim was ongoing. Sub judice therefore did not apply.
Jurisdiction
The Court has jurisdiction; paragraph 12 of Gazette Notice No. 16268 confers jurisdiction and nothing in the notice precludes it.
The defendants invoked the Practice Direction of 9 November 2012 to deny jurisdiction. The court perused the gazette notice and found nothing precluding it from hearing the matter. The suit was filed in 2013 and, having been found not sub judice, paragraph 12 conferred jurisdiction. The defendants also did not identify the specific paragraph they relied upon.
Ownership of the suit land
The plaintiff proved ownership of Plot No. 7130-Kakola Adjudication Section through the sale agreement and land adjudication department correspondence.
The plaintiff produced a sale agreement dated 25/01/2008 with James Otieno Olondo, a letter dated 14/01/2008 confirming Olondo as proprietor, and a letter dated 16/3/2012 confirming transfer to the plaintiff via objection number 1068/2000. Further letters dated 21/08/2008, 30/12/2010 and 1/3/2012 confirmed registration in the plaintiff's name. A title deed issued 26/02/2016 was noted from the further list of documents.
Alleged fraud
The defendants failed to prove the alleged fraud since they did not attend court to substantiate it.
The defendants alleged the plaintiff procured registration by fraud, including a void sale agreement, failure to obtain consents and failure to inform the larger family. Having pleaded fraud, the defendants were duty-bound to prove it to the heightened standard. They did not attend court during the hearing to adduce evidence, so the allegation remained unsubstantiated and failed.
Trespass and exhumation
The burial of Dominic Onyango Olondo on the suit land by the 1st and 2nd defendants was wrongful and amounted to trespass, justifying exhumation.
By 2011, when the burial occurred, the plaintiff was already registered as owner per the 21/08/2008 letter. The 1st and 2nd defendants buried their brother on land in which they had no interest, acting on a family meeting decision despite protest. The defence averments denying trespass remained mere allegations absent evidence. The plaintiff's uncontroverted testimony was taken as fact.
Measure of damages for trespass
In absence of evidence of the property's value before and after trespass, nominal general damages of Kshs. 200,000/= were awarded.
The measure of damages for trespass is the difference in the property's value immediately after the trespass or the cost of restoration, whichever is less. The plaintiff led no evidence of the property's state before and after, making assessment difficult; nevertheless, he was entitled to reasonable recompense for being deprived of quiet possession. Considering also that eleven years had passed since the burial, the court awarded nominal damages of Kshs. 200,000/= with interest.
Legal principles established
#- A party who alleges fraud bears the burden of proving it, on a standard higher than balance of probabilities but lower than beyond reasonable doubt.
- A statement made on oath that is not expressly denied on oath remains fact and the truth.
- A defendant who does not adduce evidence cannot rely on averments in the defence; pleadings are not evidence.
Court orders
#- 1.Permanent injunction restraining the defendants jointly and severally from trespassing upon, erecting structures on, encroaching upon, accessing or in any manner interfering with the plaintiff's right of user and/or occupation of Plot No. 7130-Kakola Adjudication Section (now registered as Nyando/Kakola/7130)
- 2.The 1st and 2nd defendants ordered to exhume the remains of their deceased brother buried illegally on the plaintiff's land and have the same interred in any cemetery at their own cost
- 3.General damages for trespass of Kshs. 200,000/= awarded to the plaintiff with interest at court rates from the date of judgment until payment in full
- 4.Plaintiff to have the costs of the suit
- Jurisdiction invoked
- Paragraph 12 of the Practice Direction on Proceedings relating to Environment and the use and occupation of, and title to Land, Gazette Notice No. 16268 dated 9th November 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Ogutu Odongo v Johnstone Otieno Olondo & 3 others [2021] KEELC 2142 (KLR)", Case Analysis (2021). Kisumu ELC (Plaint dated 25/04/2013, filed 10/05/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2142/eng@2021-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.