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ELCAllowedNot stated in judgment· [2023] KEELC 669 (KLR)

Mbuthia & 2 others (Suing for and on behalf of Mpeketoni Jua Kali Savings & Credit Cooperative Society Limited) v Kilonzi & 4 others (Environment & Land Case 16 of 2020) [2023] KEELC 669 (KLR)

Environment and Land Court
6 February 2023
MOM A Odeny
1,205 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed a Sacco's ownership of a Mpeketoni plot, ordered trespassers to demolish structures and vacate within 30 days.

What this practically means

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Executive summary

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This was an undefended land suit in which the plaintiff society sought a permanent injunction, a declaration of ownership of commercial plot no 707 at Jua Kali area, Mpeketoni within Lamu County, and vacant possession. The plaintiff's case, led through PW1 Benson Chege Mbuthia, was that the society bought the 0.01 hectare plot for Kshs 600,000/- from the Mpeketoni Electricity Project under a sale agreement dated November 5, 2018, supported by an allotment letter dated August 23, 1998. From January 2019 the defendants laid claim to the plot, refilled holes dug by the plaintiffs, and the 5th defendant erected a semi-permanent wooden workshop, obstructing the plaintiffs' access and use. Despite service of summons, the defendants neither entered appearance nor filed a defence, and the suit proceeded undefended. The court framed two issues: whether the plaintiffs are the rightful owners of the plot and whether the 5th defendant trespassed. Relying on authority that even undefended claims must be proved on a balance of probabilities, and that uncontroverted evidence carries substantial weight, the court found the plaintiffs had discharged that burden. It declared the plaintiffs the rightful owners, issued a permanent injunction against the defendants, ordered the 5th defendant to demolish the wooden structures and give vacant possession within 30 days failing which an eviction notice would issue, and awarded the plaintiffs costs of the suit payable by the defendants.

Key legal issues

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01

Whether the plaintiffs proved ownership of plot no 707

Holding

The plaintiffs proved ownership on a balance of probabilities through the allotment letter of August 23, 1998 and the sale agreement of November 5, 2018 between the trustees of Mpeketoni electricity project and the plaintiffs' society.

Reasoning

The plaintiff produced an allotment letter and a sale agreement showing it purchased the 0.01 ha portion for Kshs 600,000/-. The defendants never entered appearance or filed a defence, so the evidence was uncontroverted. Applying authority that uncontroverted evidence carries weight provided the burden of proof is discharged, the court found the plaintiffs are the rightful owners and entitled to a declaration.

p. 3
02

Whether the defendants, and particularly the 5th defendant, were trespassers

Holding

The defendants had no right to continue on the land; their conduct amounted to trespass and justified a permanent injunction and an order for demolition and vacant possession.

Reasoning

Evidence and photographs showed the 5th defendant erected a semi-permanent wooden workshop on the plot, hindering the plaintiffs' access and use, and defendants refilled holes dug by the plaintiffs. Once ownership was established, continued occupation without right constituted trespass, warranting a permanent injunction, demolition of the structures, and vacant possession within 30 days.

p. 3

Legal principles established

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  • Even in an undefended suit, a plaintiff must still prove its case on a balance of probabilities.
  • Uncontroverted evidence bears substantial weight where the defence adduces no evidence.

Court orders

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  1. 1.Declaration that the plaintiffs are the rightful owners of commercial plot no 707 situated at Jua Kali area in Mpeketoni within Lamu County
  2. 2.Permanent injunction restraining the defendants from claiming ownership, selling, alienating, transferring, trespassing, fencing, encroaching or interfering with plot no 707
  3. 3.The 5th defendant to demolish the semi-permanent wooden structures erected on the suit plot and give vacant possession within 30 days failing which an eviction notice to issue
  4. 4.Costs of the suit to be paid by the defendants

Authorities

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Legislation

  • Land Registration Actsections 24, 25 and 26
  • Civil Procedure Actsection 25(1)(a) and (b)
  • Civil Procedure RulesOrder 7 rule 1; Order 21 [1]

Cases cited (5)

  • Dr Joseph Arap Ngok v Justice Moijo Ole Keiwua & 5 others
    Civil Appeal No. Nairobi 60 of 1997
  • Nyangeri Obiye Thomas v Yunuke Sakagwa & another
    [2014] eKLR
  • Philip Kiptoo Chemwolo & another v Augustine Kubende
    [1986] eKLR
  • Gichinga Kibutha v Caroline Nduku
    (2018) eKLR
  • Peter Ngigi & Another (suing as legal representative of the Estate of Joan Wambui Ngigi) v Thomas Ondiki Oduor & Another
    2019 eKLR
Jurisdiction invoked
Original jurisdiction in rem over ownership, trespass and occupation of 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, "Mbuthia & 2 others (Suing for and on behalf of Mpeketoni Jua Kali Savings & Credit Cooperative Society Limited) v Kilonzi & 4 others (Environment & Land Case 16 of 2020) [2023] KEELC 669 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/669/eng@2023-02-06

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