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ELCAllowedMachakos ELC Case (plaint dated September 19, 2017) - number not stated in judgment· [2023] KEELC 798 (KLR)

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)

Environment and Land Court
15 February 2023
1,859 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff, sole legal wife of the late Josiah Nyamai Musyemi, sued four defendants seeking a permanent injunction restraining them from entering, cutting trees, claiming ownership of, or dealing with plot number 1, part of LR 355/25 West of Machakos municipality at Katheka-Kai. She testified that her late husband had been jointly registered as member number 60 of Katheka-Kai Co-operative Society with his mother, Agnes Kavuli Nyamai, and that on her husband surviving the mother-in-law, the land devolved to him. She took out letters of administration intestate in Machakos High Court Succession Causes No 798 of 2013 and 838 of 2013 and obtained confirmed grants, being allocated the suit land to hold in trust for the beneficiaries. In 2014 the 1st to 3rd defendants entered the land, cut trees, erected structures and sold an acre to the 4th defendant. The defendants filed a defence but did not attend the hearing or file submissions. The court framed three issues: proprietorship, trespass and injunction, and costs. Relying on the principle that a defence unsupported by evidence leaves the plaintiff's case uncontroverted, and applying Giella v Cassman Brown and the Mrao Ltd definition of a prima facie case, the court declared the plaintiff the legal owner of the suit land, found the defendants to be trespassers who should have lodged objections in the succession causes, and granted the permanent injunction. Costs were awarded against the 1st, 2nd and 3rd defendants.

Key legal issues

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01

Ownership of the suit land

Holding

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.

Reasoning

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.

p. 3
02

Trespass and permanent injunction

Holding

The defendants are trespassers on the suit land and a permanent injunction is warranted against them.

Reasoning

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.

p. 4
03

Effect of defendant's failure to adduce evidence

Holding

A defence filed but unsupported by evidence leaves the plaintiff's evidence uncontroverted.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the suit to be borne by the 1st, 2nd and 3rd defendants

Authorities

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Legislation

  • Land Actsection 49

Cases cited (6)

  • Kenya Power & Lighting Co Ltd v Sheriff Molana Habib
    (2018) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No 77 of 2012 (2014) eKLR
  • Janet Kaphiphe Ouma & another v Marie Stopes International (Kenya)
    Kisumu HCCC No 68 of 2007
  • Edward Muriga through Stanley Muriga v Nathaniel D Schulter
    Civil Appeal No 23 of 1997
  • Giella v Cassman Brown
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd
    [2003] eKLR
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

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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, "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.