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ELCPartially AllowedELC No 437 of 2017· [2021] KEELC 2699 (KLR)

Bakari Shaban Gakere v Mwana Idd Guchu & 3 others [2021] KEELC 2699 (KLR)

Environment and Land Court
5 July 2021
2,162 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court declared Mwana Idd Guchu the rightful owner of Plot No. 69 Mjini in Murang'a and ordered the plaintiff to vacate.

What this practically means

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Executive summary

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The Plaintiff sued for a declaration that he was the rightful owner of Plot No. Mjini/69 in Murang'a, revocation of its sub-division, cancellation of its allocation to the 1st Defendant, and a permanent injunction, alleging he purchased the plot from Ibrahim Mohammed in 1982 and that the 2nd Defendant had arbitrarily sub-divided and reallocated it. The 1st Defendant denied the claim, alleged fraud in the Plaintiff's acquisition of Plot No. 68, and counterclaimed for a declaration of ownership of Plot No. 69 and the Plaintiff's eviction. During trial the Plaintiff's witness was found to be the Plaintiff's father, and upon refusal of an adjournment the Plaintiff's suit was dismissed for want of prosecution on 22/2/2021, leaving the counterclaim for hearing. The 1st Defendant testified she was allocated Plot No. 69 by the county on relocation during the 1982 expansion of Mumbi Girls Secondary School, supported by two witnesses and the 2nd Defendant. The court found the 1st Defendant the rightful owner of Plot No. 69 (now Plot No. 174), noting the Plaintiff actually owns Plot No. 68 (now Plot No. 173), per a 2017 allotment letter. The court declined to declare the transfer of Plot No. 68 fraudulent because the 1st Defendant failed to prove she was the legal representative of Ibrahim Mohammed's estate. The Plaintiff's suit was dismissed; the counterclaim partially succeeded with an eviction order against the Plaintiff; each party was to bear their own costs.

Key legal issues

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01

Whether the 1st Defendant is the rightful owner of Plot No. 69 Mjini

Holding

Yes; she was allocated the plot on relocation during the 1982 expansion of Mumbi Girls Secondary School, and her evidence was supported by witnesses and the 2nd Defendant

Reasoning

The court reviewed committee minutes, county correspondences and testimony showing the 1st Defendant was relocated and allotted Plot No. 69, while the plot the Plaintiff claims (via Ibrahim Mohammed) is Plot No. 68, now renamed Plot No. 173. An allotment letter dated 9/6/2017 in the Plaintiff's name confirms he holds Plot No. 173, not Plot No. 69 (now 174).

p. 3
02

Whether the 1st Defendant could challenge the transfer of Plot No. 68 to the Plaintiff

Holding

No; she lacked capacity not having taken out letters of administration over Ibrahim Mohammed's estate

Reasoning

The counterclaim sought a declaration that the transfer of Plot No. 68 was fraudulent and its reversion to Ibrahim Mohammed. The court found the 1st Defendant had not established herself as legal representative of the estate and therefore could not advance any claim over that plot, leaving the question undetermined.

p. 3
03

Whether the Plaintiff's suit could proceed

Holding

No; it was dismissed for want of prosecution after adjournment was refused and no cogent reason for adjournment was advanced

Reasoning

The Plaintiff's witness turned out to be the Plaintiff's father, not the Plaintiff, prompting an unsuccessful adjournment application to file a power of attorney. The case, certified ready, was dismissed on 22/2/2021, leaving only the 1st Defendant's counterclaim for determination.

p. 2

Legal principles established

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  • A claimant in a land dispute must prove allotment with documentary evidence such as an allotment letter, application or minutes; unproduced allotment documents weaken the claim
  • Only a legal representative of a deceased's estate may advance claims over the deceased's land

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The 1st Defendant's counterclaim partially succeeds and judgment is entered in favour of the 1st Defendant that she is the rightful owner of Plot No. 69 Mjini area
  3. 3.The Plaintiff is ordered to vacate the said plot and in default be evicted accordingly
  4. 4.Each party to bear their costs of the suit

Authorities

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Legislation

  • Law of Succession ActSection 45
  • Land Registration Act 2012Section 26(1)

Cases cited (2)

  • Estate of Veronica Njoki Wakegito
    [2013] eKLR
  • Alice Chemutai vs Nickson Kipkurui & 2 others
    Kericho ELC Case No. 51 of 2014 [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited in the judgment)

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, "Bakari Shaban Gakere v Mwana Idd Guchu & 3 others [2021] KEELC 2699 (KLR)", Case Analysis (2021). ELC No 437 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2699/eng@2021-07-05

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