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ELCAllowedPlaint dated 27/2/2015, filed 3/3/2015 (ELC Kitale)· [2021] KEELC 4701 (KLR)

Jackson Ekim Omaido v Lucia Ngaira Omunga & 11 others [2021] KEELC 4701 (KLR)

Environment and Land Court
18 January 2021
MNMwangi Njoroge
1,059 words in judgment
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The bottom line

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A Kenyan landowner won eviction of 11 former employees because their defence lacked evidence and they never proved the limitation period applied.

What this practically means

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Executive summary

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The plaintiff sued eleven defendants seeking their eviction from his land, Land Reference No. 8699/8, on the basis that they were his past employees and/or licencees entitled to reside there only by virtue of employment, which had terminated. The plaintiff, who inherited the land through succession from Alfred Arthur Durani Martineau, produced his grant and certificate of title, NSSF return forms, a master roll and a 1987 payments register linking various defendants or their relatives to his employment, demand letters dated 22/12/2014, and photographs of damage caused by the defendants' animals and tree-felling. None of the defendants testified: the 1st defendant's counsel closed her case without evidence, and the rest did not appear. The defendants' only submissions, filed 23/12/2020, relied on Section 7 of the Limitation of Actions Act. The court held that limitation is an issue requiring proof by evidence, including when the limitation period began to run, and that the untested defences remained bare. Finding the plaintiff's evidence unchallenged and sufficient on a balance of probabilities, the court declared the defendants trespassers without legal justification to remain and entered judgment for the plaintiff jointly and severally against all defendants. The court ordered their removal from, and in default eviction from, the suit land, with costs to the plaintiff. Judgment was delivered at Kitale by electronic mail on 18 January 2021.

Key legal issues

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01

Effect of defendants failing to testify

Holding

Their defences remained bare pleadings; the plaintiff's unchallenged evidence sufficed on a balance of probabilities.

Reasoning

All defendants failed to appear or give evidence at the defence hearing; counsel for the 1st defendant closed the case without evidence. The statements in the defences therefore remained unsupported allegations incapable of testing. The court held the plaintiff's evidence unchallenged and sufficient on a balance of probabilities, finding the defendants had no legal justification for continued occupation.

p. 2
02

Whether limitation under Section 7 of the Limitation of Actions Act defeated the claim

Holding

No, limitation is an issue requiring proof by evidence; without proof of when occupation began, Section 7 could not apply in the defendants' favour.

Reasoning

The defendants filed submissions relying solely on Section 7 of the Limitation of Actions Act but adduced no evidence of each defendant's occupation or the date from which the limitation period would run. The court held that limitation is subject to proof by way of evidence and declined to assume it applied, particularly as the defendants also did not contest the plaintiff's claim that they or their predecessors were his former employees.

p. 2

Legal principles established

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  • A party relying on statutory limitation under Section 7 of the Limitation of Actions Act must prove by evidence the date the limitation period began to run; it cannot be assumed on unsubstantiated submissions.
  • Defences supported by no evidence remain bare pleadings that do not displace a plaintiff's unchallenged proof on a balance of probabilities.

Court orders

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  1. 1.The defendants, their families, agents and/or servants shall remove themselves from, and in default be evicted from, the plaintiff's land Reference No. 8699/8 (Original No. 8699/6/2)
  2. 2.The defendants shall bear the costs of this suit

Authorities

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Legislation

  • Limitation of Actions ActSection 7
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (ELC, Kitale)

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, "Jackson Ekim Omaido v Lucia Ngaira Omunga & 11 others [2021] KEELC 4701 (KLR)", Case Analysis (2021). Plaint dated 27/2/2015, filed 3/3/2015 (ELC Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4701/eng@2021-01-18

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