Mbaruk & another v Chengo (Environment & Land Case 167 of 2018) [2023] KEELC 200 (KLR)
The bottom line
#A Kilifi land dispute was dismissed because the claimants couldn't prove ownership of unsurveyed land — whoever asserts ownership must prove it with solid evidence, not hearsay.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof in a claim of beneficial ownership of unsurveyed land
The Plaintiffs bore the legal burden and failed to discharge it; their claim of tenancy was hearsay, whereas the Defendant's evidence of ancestral purchase was uncontroverted
Relying on sections 107(1), 109 and 112 of the Evidence Act and the Anne Wambui Ndiritu and Evans Nyakwana authorities, the court held the initial burden lay on the Plaintiffs. Their evidence consisted of assertions of beneficial ownership without documents, and the claim that the Defendant's family were tenants was hearsay. The Defendant produced letters from the Village Elder and Chief corroborating family ownership. In the absence of contrary evidence, the land was found to belong to the Defendant's family.
Standard of proof - balance of probabilities
A party must persuade the court that its allegations are more likely than not (51% versus 49%) to have occurred; the Plaintiffs did not meet this threshold
Applying William Kabogo Gitau v George Thuo, the court reiterated that civil cases are decided on a balance of probabilities. The Plaintiffs admitted the land was unsurveyed and produced no documents; their evidence of ownership was hearsay. The court was not satisfied that the Defendant's family were tenants, finding it unlikely on the evidence, and accordingly dismissed the suit.
Legal principles established
#- The legal burden of proof lies on the party who asserts the affirmative of the issue and must prove facts on a balance of probabilities
Court orders
#- 1.The suit is dismissed
- 2.Plaintiffs to pay costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction over land claims (plaint seeking injunction and damages for trespass)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbaruk & another v Chengo (Environment & Land Case 167 of 2018) [2023] KEELC 200 (KLR)", Case Analysis (2023). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/200/eng@2023-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.