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ELCAllowedOriginating Summons dated 18th December 2014 (filed 17th March 2015)· [2021] KEELC 2447 (KLR)

Amri Khamis & another v Slyvester Chibo Mwarome [2021] KEELC 2447 (KLR)

Environment and Land Court
16 July 2021
JOJ.O. Olola
2,060 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court declared two brothers the rightful owners of land bought in 1983, ordering the vendor's estate to complete the transfer within 45 days.

What this practically means

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Executive summary

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By an Originating Summons filed in 2015, Amri Khamis and Omar Khamis sought a declaration that Title No. Kilifi/Roka/750 (formerly Plot No. 364 A Chumani Tezo/Roka), registered in the name of Sylvester Chibo Mwarume as Administrator of the Estate of Masha Dena Kideshwe, belongs to them; an order compelling the Respondent to execute a transfer; and in the alternative, that the Deputy Registrar execute the transfer. The Applicants, acting in person, testified that on 27th June 1983 they and their late brother bought the plot from the registered vendor for Kshs 20,000/-, paying Kshs 5,000/- on execution. The vendor fell ill shortly after and asked them to complete payment for medication; he died later that year before the transfer was executed, leaving an elderly, childless widow in occupation, which the Applicants said explained their failure to take possession. The Respondent later obtained a grant in Malindi High Court Succession Cause No. 21 of 2003 as an alleged adopted son and was registered as proprietor; rival succession causes were also filed by Sulubu Charo Dena. The Respondent did not enter appearance or respond, and the matter proceeded by formal proof. The court found the claim unchallenged and uncontroverted, accepted the sale agreement and the explanation for delayed possession, and held that the Applicants had proved ownership on a balance of probabilities. The Originating Summons was allowed in terms of Prayers 3 and 4, with 45 days for the Respondent to execute the transfer, failing which the Deputy Registrar to do so, plus costs to the Applicants.

Key legal issues

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01

Whether the Applicants proved ownership of the suit property on a balance of probabilities

Holding

The Applicants proved their case; the sale agreement of 27th June 1983 and their explanation for non-possession established them as the rightful owners

Reasoning

The Applicants produced a written Sale Agreement showing purchase of Plot No. 364 A Chumani Tezo/Roka from the registered proprietor. Although the vendor died shortly after execution before transfer, the Applicants explained that they had paid the outstanding balance at the vendor's request for medication and had deferred possession out of consideration for the vendor's elderly, childless widow. The contradictory death dates in the two grants of letters of administration still corroborated the account that the vendor died soon after the sale.

p. 3
02

Effect of the Respondent's failure to enter appearance or respond

Holding

The claim proceeded by formal proof and was treated as unchallenged and uncontroverted

Reasoning

Despite being served with the suit papers, the Respondent neither entered appearance nor filed a response. The court therefore determined the matter on the Applicants' uncontroverted evidence and supporting documents, finding no reason to doubt their entitlement to the suitland.

p. 3

Legal principles established

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  • A plaintiff's unchallenged and uncontroverted evidence, if credible and supported by documents, may prove the claim on a balance of probabilities even where the suit proceeds by formal proof

Court orders

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  1. 1.Originating Summons allowed in terms of Prayers 3 and 4 - declaration that Title No. Kilifi/Roka/750 belongs to the Applicants and the Respondent to execute transfer of the title to the Applicants
  2. 2.Respondent given 45 days to execute the transfer documents, failing which the Deputy Registrar of the Court to execute the transfer as sought in alternative Prayer 5
  3. 3.Applicants awarded the costs of the suit
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over title to land (originating summons for declaration of ownership of Title No. Kilifi/Roka/750)

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, "Amri Khamis & another v Slyvester Chibo Mwarome [2021] KEELC 2447 (KLR)", Case Analysis (2021). Originating Summons dated 18th December 2014 (filed 17th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2447/eng@2021-07-16

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