Nyamai (Suing as the representative of the Estate of Josiah Nyamai Musyemi - Deceased) v Mutiso & 3 others (Environment & Land Case 413 of 2017) (15 February 2023) (Judgment) (with dissent) [2023] KEELC 798 (KLR)
The bottom line
#The Machakos Environment and Land Court confirmed a widow's ownership of family land and permanently barred relatives who claimed it without evidence.
What this practically means
#Executive summary
#Key legal issues
#Ownership of the suit land
The plaintiff is the legal owner of the suit land, having obtained confirmed grants in the succession causes relating to the estates of her late husband and mother-in-law.
The plaintiff produced certificates of confirmation of grant in Machakos High Court Succession Causes No 798 of 2013 and 838 of 2013, and in the former she was granted the suit land to hold in trust for the beneficiaries of the deceased's estate. PW3 confirmed the land had been allocated to her late husband by their mother. The defendants, despite filing a defence, did not attend court to tender evidence or challenge the plaintiff's case, leaving her evidence uncontroverted.
Trespass and permanent injunction
The defendants are trespassers on the suit land and a permanent injunction is warranted against them.
Applying the Giella v Cassman Brown principles and the Mrao Ltd definition of a prima facie case, the court found the plaintiff had established a prima facie case. PW2 and PW3 confirmed encroachment, and photographs showed the 1st defendant had sold a portion to the 4th defendant and attempted to construct structures. The defendants should have lodged objection proceedings in the succession causes if aggrieved; having failed to do so and having tendered no evidence, they are trespassers who will cause irreparable harm if not restrained.
Effect of defendant's failure to adduce evidence
A defence filed but unsupported by evidence leaves the plaintiff's evidence uncontroverted.
The court adopted the decision in Edward Muriga through Stanley Muriga v Nathaniel D Schulter, favourably cited in Janet Kaphiphe Ouma & another v Marie Stopes International (Kenya), holding that even where a defence is filed, failure to adduce evidence in support of its assertions means the plaintiff's evidence remains uncontroverted. The defendants were frequently and properly served but did not attend the hearing or file submissions.
Legal principles established
#- Where a defendant files a defence but fails to adduce evidence to support the assertions made therein, the plaintiff's evidence remains uncontroverted.
Court orders
#- 1.A permanent injunction restraining the defendants and/or their agents, relatives/heirs and or whosoever from entering, cutting trees, claiming ownership, disposing of and/or dealing and or doing any activity whatsoever on the land parcel plot number 1 part of LR 355/25 West of Machakos municipality situated at Katheka-Kai
- 2.Costs of the suit to be borne by the 1st, 2nd and 3rd defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (plaint dated September 19, 2017); specific constitutional/statutory provision not cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyamai (Suing as the representative of the Estate of Josiah Nyamai Musyemi - Deceased) v Mutiso & 3 others (Environment & Land Case 413 of 2017) (15 February 2023) (Judgment) (with dissent) [2023] KEELC 798 (KLR)", Case Analysis (2023). Machakos ELC Case (plaint dated September 19, 2017) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/798/eng@2023-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.