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ELCPartially AllowedNot stated in judgment (plaint dated November 30, 2019)· [2023] KEELC 240 (KLR)

Mwazara & 4 others v Mwakazi & another (Environment & Land Case 147 of 2021) [2023] KEELC 240 (KLR)

Environment and Land Court (magistrates'/ELC, Kwale)
23 January 2023
1,651 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kwale court ordered two occupants evicted because a registered title and succession order trumped an unproven claim of long possession.

What this practically means

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Executive summary

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The plaintiffs, registered as absolute proprietors of plot Kwale/Ngombeni/274 as trustees, sued the two defendants for injunction, eviction, damages and costs, alleging trespass and erection of illegal structures. The defendants filed a defence claiming entitlement by actual physical possession and alleging the plaintiffs had frustrated criminal case No. 764 of 2018, but their advocate failed to attend the hearing and the suit proceeded ex parte with proof of service. The plaintiffs called one witness, PW1 Rashid Bakari Mwabohoya, who produced the title deed dated 28 June 2017, an official search and a Kadhi's order in Kwale Succession Cause No. 153 of 2017 vesting the land in the five plaintiffs on their own behalf and that of other heirs of the late Fatuma Suleiman. The court held that an unproved defence remains mere allegation while the plaintiff still bears the burden of proof on a balance of probabilities. It found the plaintiffs had proved ownership, but as heirs and trustees of other beneficiaries; the defendants were not named in the Kadhi's order and adduced no evidence of occupation. Judgment was entered for the plaintiffs: an injunction restraining the defendants from the suit land, an order of eviction within 90 days failing which lawful forced eviction is permitted, and costs to the plaintiffs. No finding was made on damages as counsel did not address the court on it.

Key legal issues

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01

Effect of defendant's failure to adduce evidence

Holding

The defence remains mere allegations and the plaintiff's evidence stands uncontroverted, but the plaintiff must still prove its case

Reasoning

The court relied on Kenya Power & Lighting Co Ltd v Rassul Nzembe Mwadzaya and John Wainaina Kagwe v Hussein Dairy Ltd for the proposition that averments unsupported by evidence remain mere allegations. It balanced this with Susan Mumbi v Kefala Grebedhin, holding that the burden remains on the plaintiff to prove the case on a balance of probabilities notwithstanding the defendant's non-appearance.

p. 3
02

Plaintiffs' ownership and capacity over the suit land

Holding

The plaintiffs proved on a balance of probabilities that they are registered owners of the suit land, but hold it as trustees/heirs for other beneficiaries under the Kadhi's succession order

Reasoning

The title deed issued on 28 June 2017 and the official search showed the plaintiffs as registered absolute proprietors as trustees, deriving title through Kadhi's Kwale Succession Cause No. 153 of 2017 vesting the land in the five plaintiffs on their own behalf and that of other heirs. The defendants were not named as heirs in the Kadhi's order.

p. 4
03

Defendants' claim of entitlement by actual possession

Holding

Rejected - the defendants led no evidence of actual occupation, and their names appear nowhere in the Kadhi's order as heirs

Reasoning

The court noted the defendants claimed entitlement by dint of actual physical possession but neither attended court nor called witnesses to substantiate occupation. The Kadhi's succession order distributing the estate did not include the two defendants as heirs to whom any shares were devolved, undermining their claim of entitlement.

p. 4

Legal principles established

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  • A defence on which no evidence is called remains mere allegation; he who asserts must prove
  • Failure by a defendant to adduce evidence does not relieve the plaintiff of the burden of proving its case on a balance of probability

Court orders

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  1. 1.An injunction restraining the 1st and 2nd defendants, their servants and/or agents from residing, trespassing and using any part of plot Kwale/Ngombeni/274
  2. 2.An order for eviction requiring the 1st and 2nd defendants to vacate plot Kwale/Ngombeni/274 within 90 days, failing which the plaintiffs may forcefully evict them in accordance with the law
  3. 3.Costs of the suit to the plaintiffs

Authorities

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Legislation

  • Evidence ActSections 107 and 108

Cases cited (4)

  • Kenya Power & Lighting Co Ltd v Rassul Nzembe Mwadzaya
    [2020] eKLR
  • Edward Muriga through Stanley Muriga v Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • John Wainaina Kagwe v Hussein Dairy Ltd
    [2013] eKLR
  • Susan Mumbi v Kefala Grebedhin
    Nairobi HCC No. 332 of 1993
Jurisdiction invoked
Original civil suit by plaint (title, trespass and eviction over land parcel Kwale/Ngombeni/274)

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, "Mwazara & 4 others v Mwakazi & another (Environment & Land Case 147 of 2021) [2023] KEELC 240 (KLR)", Case Analysis (2023). Not stated in judgment (plaint dated November 30, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/240/eng@2023-01-23

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