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ELCDismissedPetition dated August 9, 2016 (Meru)· [2022] KEELC 3540 (KLR)

Petitioners (Administrators of the Estate of Mukira Nabea, Deceased) v Leonard Gitonga & 2 others

Environment and Land Court
18 May 2022
3,849 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a family's land claim because they could not prove their relative died before the 1994 sale.

What this practically means

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Executive summary

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The petitioners, holding a limited grant ad litem issued on April 26, 2016 as administrators of the estate of Mukira Nabea, petitioned the Environment and Land Court at Meru seeking declarations that the 1994 subdivision and transfer of LR Ntima/Ntakira/1084 to the 1st respondent were illegal and unconstitutional, and rectification of the register. They asserted the deceased died on February 2, 1968 and could not have sold the land. The 1st respondent countered that he lawfully bought the land from Mukira Nabea under an August 24, 1993 agreement drawn by an advocate, obtained land control board consent, was registered on February 15, 1994, and that Mukira Nabea died only on May 20, 1997. The court framed a single issue: whether the transfer was lawful, turning on the date of death. Applying section 107 of the Evidence Act, it held the petitioners bore the burden of proving the 1968 death and failed: their witnesses were inconsistent about their relationship to the deceased and about Cypriano M'Kwaria, and PW2's evidence was hearsay. In contrast, the defence produced the death certificate (a 2014 late registration applied for by Cypriano M'Kwaria), transfer documents, and credible eyewitnesses including the advocate who drew the sale agreement and the local assistant chief. The court further found the fraud claims replicated earlier litigation (LDT No 61 of 2009, HCC No 162/2009, CMCC No 204/2013) and amounted to an abuse of process, the petition being an ordinary land claim disguised as a constitutional petition. The petition was dismissed with costs to the 1st respondent.

Key legal issues

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01

Burden of proving that Mukira Nabea died in 1968

Holding

The petitioners failed to discharge the burden; the death certificate and witness evidence established he died on May 20, 1997, after the sale

Reasoning

Section 107 of the Evidence Act places the burden on the party asserting. The petitioners offered no primary document for the 1968 death; their evidence was inconsistent on the relationship to the deceased and on Cypriano M'Kwaria, while the defence produced a death certificate, the sale agreement executed before an advocate, land control board consent, transfer documents and eyewitness testimony of the deceased's presence at the sale.

p. 5
02

Credibility of the petitioners' witnesses

Holding

The two sibling witnesses were found untruthful and their testimony muddled, warranting rejection

Reasoning

PW1 and PW3 gave contradictory accounts of whether they were grandchildren or nephews/nieces of the deceased, gave inconsistent evidence about Cypriano M'Kwaria, and oddly both claimed birth in 1953 without explaining twinship. PW2's evidence was pure hearsay from the 1st petitioner.

p. 6
03

Abuse of court process

Holding

Raising the same fraud claim in a petition after prior suits (LDT No 61 of 2009, HCC No 162/2009, CMCC No 204/2013) constituted an abuse of process

Reasoning

The petitioners had litigated the same fraud allegations in earlier suits, one of which ended in a decree in the 1st respondent's favour and others dismissed or struck out. The petition was an ordinary land claim disguised as a constitutional petition, with no demonstrated violation of rights.

p. 7

Legal principles established

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  • He who asserts must prove; the burden of proof lies on the party asserting the facts
  • Pursuing the same matter through successive or parallel court processes amounts to an abuse of court process

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs of the petition awarded to the 1st respondent

Authorities

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Legislation

  • Evidence Actsection 107

Cases cited (3)

  • BWK v EK & Another
    (2017) eKLR
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nadi
    (2013) eKLR
  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya
    [2020] eKLR
Jurisdiction invoked
Original petition jurisdiction (constitutional petition; no appellate jurisdiction invoked)

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, "Petitioners (Administrators of the Estate of Mukira Nabea, Deceased) v Leonard Gitonga & 2 others", Case Analysis (2022). Petition dated August 9, 2016 (Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3540/eng@2022-05-18

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