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ELCDismissedMalindi ELC Civil Suit (Plaint dated 15th August, 2017)· [2022] KEELC 809 (KLR)

Veronica Mwikali Forster (suing through Attorney Salim Swaleh Mohamed) v Mustafa Ali Shekue [2022] KEELC 809 (KLR)

Environment and Land Court
15 March 2022
MOM.A. Odeny
1,213 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, Veronica Mwikali Forster, sued the Defendant, Francis Kazungu, by plaint dated 15th August 2017, seeking a permanent injunction restraining him from entering, occupying or dealing with apartments No. 1 and 2 on 'Villa Veronica' on Plot No. 21 Watamu, or alternatively an order of eviction, plus costs. Her case, pleaded through a special power of attorney held by Salim Swaleh Mohammed, was that she bought a quarter-acre undivided share of Plot No. 21 Watamu from Abdalla Bakshwein in 1983, built Villa Veronica, and leased the apartments to Maria Eyer, who died in March 2017, after which the Defendant took possession claiming ownership. The suit proceeded undefended after the Defendant's advocates filed no defence. The court, M.A. Odeny J, held that an undefended suit is not a 'free ticket': the Plaintiff still had to prove her case on a balance of probabilities, citing Kenya Power & Lighting Co Ltd v Nathan Karanja Gachoka & another [2016] eKLR. Examining the Certificate of Title, the court noted that entry No. 12 recorded the 1983 transfer in the name of 'Villa Veronica', not the Plaintiff, and that her connection to that name (possibly a business name) was never explained despite being flagged in an earlier interlocutory ruling by Olola J. Entries 13 to 79 showed unexplained transfers to strangers, and the Plaintiff had previously failed in an eviction attempt (Malindi PM CC No. 350 of 2008) and faced a forcible detainer charge (Malindi Criminal Case No. 727 of 2013). The suit was dismissed with no orders as to costs.

Key legal issues

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01

Burden of proof in an undefended suit

Holding

A plaintiff must prove its case on a balance of probabilities even where the evidence is uncontroverted

Reasoning

Relying on Kenya Power & Lighting Co Ltd v Nathan Karanja Gachoka & another [2016] eKLR, the court held that uncontroverted evidence must still be interrogated. The dismissal of the earlier injunction application had flagged the mismatch between the Plaintiff's name and 'Villa Veronica' on entry No. 12, and the Plaintiff offered no explanation at trial.

p. 2
02

Proof of ownership of the suit property

Holding

The Plaintiff failed to prove she is the registered owner of Villa Veronica

Reasoning

Entry No. 12 on the Certificate of Ownership records the transfer of 26th November 1983 in the name of 'Villa Veronica', which may be a business name. Subsequent entries 13 to 79 show transfers to third parties not before the court, unexplained. Prior unsuccessful eviction attempts and a forcible detainer charge further undermined the claim.

p. 2

Legal principles established

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  • An undefended suit is not automatically granted; the plaintiff must still prove its case on a balance of probabilities

Court orders

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  1. 1.The suit is dismissed for failure to prove the case on a balance of probabilities
  2. 2.No orders as to costs

Authorities

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Legislation

  • Penal CodeSection 90 (forcible detainer)
  • Civil Procedure RulesOrder 21(1)

Cases cited (1)

  • Kenya Power & Lighting Company Limited v Nathan Karanja Gachoka & another
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over ownership of and dealings with land

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, "Veronica Mwikali Forster (suing through Attorney Salim Swaleh Mohamed) v Mustafa Ali Shekue [2022] KEELC 809 (KLR)", Case Analysis (2022). Malindi ELC Civil Suit (Plaint dated 15th August, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/809/eng@2022-03-15

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