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ELCPartially AllowedNot stated in judgment· [2022] KEELC 943 (KLR)

Martin Muhindi (Suing as the personal representative of the Estate of Grace Muhindi-Deceased) v Peter Mbuti & another [2022] KEELC 943 (KLR)

Environment and Land Court
10 March 2022
OAO. A. Angote
2,417 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, son and administrator of the Estate of Grace Muhindi (deceased), sued the Defendants claiming permanent injunction, a declaration of ownership, exhumation of the 1st Defendant's wife buried on Plot V805, and eviction from Plots V804 and V805 in Ruai, Nairobi. He averred the deceased purchased the plots from the 2nd Defendant in 1999 and that in March 2014 the 1st Defendant fenced off the plots and in April 2014 buried his wife Miriam Wambui Mbuti on Plot V805. The Defendants neither entered appearance nor filed defences, so the suit proceeded by formal proof on 6th October 2021. The Plaintiff adopted his witness statement and produced letters of administration ad litem, Non-member Certificates of Plot Ownership, payment receipts, a sketch map, a funeral program and two letters from the 2nd Defendant confirming the deceased's ownership. The court framed a single issue: whether the Plaintiff was entitled to the orders sought. Applying sections 107, 109 and 112 of the Evidence Act and the balance-of-probabilities standard, and following Caroline Awinja Ochieng on proof of ownership of unregistered land, the court found the documentary evidence established an unbroken chain to the root of title and that the plots belong to the Estate. It further found the fencing and burial constituted trespass. However, exhumation was refused because the funeral program did not show the place of interment and the order carries serious consequences. Judgment was entered declaring the Estate the absolute proprietor of the plots, issuing a permanent injunction, ordering the 1st Defendant to vacate within 60 days failing which eviction would issue, with costs to the Plaintiff against the 1st Defendant.

Key legal issues

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01

Ownership of unregistered plots V804 and V805

Holding

The Plaintiff proved on a balance of probabilities that the plots belong to the Estate of Grace Muhindi through share certificates, receipts and confirmation letters

Reasoning

The Plaintiff produced Non-member Certificates of Plot Ownership, payment receipts, a sketch map and two letters from the 2nd Defendant confirming the deceased's ownership. Following Caroline Awinja Ochieng, the documents established an unbroken chain leading to the root of title notwithstanding the absence of registered titles.

p. 3
02

Trespass and eviction of the 1st Defendant

Holding

Fencing off the plots and burying the 1st Defendant's wife thereon constituted trespass justifying eviction

Reasoning

The Plaintiff's testimony that he found the plots fenced off was uncontroverted. Applying the Halsbury definition of trespass, the 1st Defendant wrongfully took possession of and placed things on the land; the court found trespass proved and ordered vacation and eviction.

p. 3
03

Exhumation of Miriam Wambui Mbuti

Holding

Exhumation was refused for lack of evidence of the exact burial location

Reasoning

The funeral program did not indicate the place of interment. Because exhumation orders carry serious and far-reaching consequences, the court required sufficient evidence of the exact burial location, which was absent.

p. 3

Legal principles established

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  • Proof of ownership of unregistered land depends on documentary evidence establishing an unbroken chain leading to the root of title
  • An undefended suit does not lessen the burden of proof on the plaintiff
  • Trespass justifies eviction of a person who fences and buries a body on another's land without consent

Court orders

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  1. 1.A declaration that the Estate of the late Grace Muhindi (deceased) is the absolute proprietor of Plots Nos. V804 and V805 situate in Ruai, Nairobi
  2. 2.A permanent injunction restraining the 1st Defendant, his agents and/or servants from harassing, threatening, intimidating, trespassing upon, demolishing and/or interfering with Plots Nos. V804 and V805
  3. 3.The 1st Defendant to vacate and deliver vacant possession of Plots Nos. V804 and V805 to the Plaintiff within 60 days, failing which an order of eviction to issue
  4. 4.The 1st Defendant to bear the costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Evidence ActSections 107(1)(2), 109 and 112

Cases cited (8)

  • Danson Kimani Gacina & Another vs Embakasi Ranching Company Ltd
    [2015] eKLR
  • Caroline Awinja Ochieng & Another vs Jane Anne Mbithe Gitau & 2 others
    [2014] eKLR (also cited as [2015] eKLR)
  • Nyangeri Obiye Thomas vs Yunuke Sakagwa & another
    [2014] eKLR
  • Mumbi M'Nabea vs David M.Wachira
    [2016] eKLR
  • Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited
    Civil Appeal No. 101 of 2000 [2005] 1 EA 280
  • Palace Investments Limited vs Geoffrey Kariuki Mwenda & another
    [2015] eKLR
  • Miller –vs- Minister of Pensions
    [1947] 2 All ER 372
  • Sen v Headley
    [1991] Ch 425
Jurisdiction invoked
Original civil jurisdiction over land claims (Environment and Land Court); suit instituted by Plaint dated 3rd July, 2014

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, "Martin Muhindi (Suing as the personal representative of the Estate of Grace Muhindi-Deceased) v Peter Mbuti & another [2022] KEELC 943 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/943/eng@2022-03-10

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