Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2021] KEELC 4394 (KLR)

Arthur Shikanga Mulama v Elphas Nandi [2021] KEELC 4394 (KLR)

Environment and Land Court
11 February 2021
3,178 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The plaintiff, claiming to be the legal representative of the estate of Deborah Chitilwa Amahwa under a grant ad litem, sued the defendant seeking a declaration that 5 acres out of LR No. 7393 belonged to the deceased's estate and an injunction against alleged encroachment. The plaintiff alleged Deborah purchased the 5 acres from Matthew Mulabu Lubobi in 1986, and that the defendant forcefully entered the land in 2015. The defendant denied the claim and testified that he bought the land in 2008 from John Shikanga, Deborah's brother, who acted under a power of attorney from Eunice Ambutsi, Deborah's sister, with the family's consent, paying Kshs 1,560,000 by banker's cheque and occupying the land for 8 years. The court framed two issues: whether Deborah bought the 5 acres and whether the defendant trespassed. It held that the 1986 agreement (P. Exhibit 3) was not a sale agreement since it disclosed no consideration and only allowed joint 'holding' of the land; Deborah did not feature in the list of purchasers; and the certificate of confirmation of grant produced was in respect of one 'Deborah Musinya', a different person, and did not include the suit land, so the plaintiff failed to prove purchase or his authority to sue. The court found the whole family, led by Eunice Ambutsi, consensually sold the land to the defendant, who thus acquired a valid and registrable interest, negating trespass. The court drew an adverse inference from the plaintiff's failure to call key family witnesses. The suit was dismissed with costs to the defendant.

Key legal issues

#
01

Whether the plaintiff proved that Deborah Chitilwa Amahwa purchased the suit land

Holding

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).

Reasoning

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.

p. 2
02

Whether the plaintiff had capacity/authority to sue on behalf of the estate

Holding

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.

Reasoning

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.

p. 3
03

Whether the defendant trespassed on the suit land

Holding

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.

Reasoning

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.

p. 4
04

Whether the plaintiff's failure to call key family witnesses was fatal

Holding

Yes. The persons said to have participated in the sale were deceased or abstained, justifying an adverse inference against the plaintiff's claim.

Reasoning

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.

p. 4

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. 1.The plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the defendant

Authorities

#

Cases cited (2)

  • Nganga -vs- R
    [1981] eKLR 483
  • Kenya Akiba Micro Finance Ltd -vs- Ezekiel Chebii & 14 Others
    HCCC No. 644 of 2005
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.