Arthur Shikanga Mulama v Elphas Nandi [2021] KEELC 4394 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved that Deborah Chitilwa Amahwa purchased the suit land
The plaintiff did not prove purchase. P. Exhibit 3 was not a sale agreement (no consideration and only a right to 'hold' the land jointly), and Deborah does not feature in the list of heirs/purchasers (P. Exhibit 6).
The court examined the documentary evidence. The 1986 agreement contains no consideration and uses loose language of 'holding' land jointly pending subdivision, which does not entitle Deborah to title. Deborah does not appear in the purchasers' list, and PW2's corroborative claim was unsupported by any records he failed to produce.
Whether the plaintiff had capacity/authority to sue on behalf of the estate
The certificate of confirmation of grant produced was in respect of one 'Deborah Musinya', not Deborah Chitilwa Amahwa, and the suit land was not among its assets; the plaintiff thus failed to prove authority and the identity of the deceased.
The court held that 'Deborah Musinya' and 'Deborah Chitilwa Amahwa' must be presumed different persons until proved otherwise. The certificate lists only two share accounts, not the suit land, and no explanation was given for the omission. No evidence of the alleged granddaughter's existence or authority was tendered.
Whether the defendant trespassed on the suit land
No trespass was established. The land was sold to the defendant consensually by the family, led by Eunice Ambutsi, through John Shikanga acting under a power of attorney, and the defendant held possession for 8 years without demur.
The court found the family, including Eunice, David and John, agreed to the sale and shared proceeds. The defendant paid Kshs 1,560,000 by banker's cheque and utilized the land for 8 years. The claim, lodged long after the consensual sale, cast doubt on the plaintiff's intentions.
Whether the plaintiff's failure to call key family witnesses was fatal
Yes. The persons said to have participated in the sale were deceased or abstained, justifying an adverse inference against the plaintiff's claim.
Citing Nganga v R and Kenya Akiba Micro Finance Ltd v Ezekiel Chebii, the court held that where a party withholds evidence from persons who could confirm or contradict a claim, the court may infer the evidence would be adverse. Key actors in the sale were neither summoned nor produced.
Legal principles established
#- Where a party fails to call witnesses who could have confirmed his claim and who would be expected to support his case, the court may draw an inference that their evidence would have been adverse to his claim
- An agreement lacking consideration and expressed only as a right to 'hold' land does not confer title to any portion of the land
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.Costs of the suit awarded to the defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (not expressly invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arthur Shikanga Mulama v Elphas Nandi [2021] KEELC 4394 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4394/eng@2021-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.