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ELCAllowedEnvironment & Land Case 363 of 2017· [2023] KEELC 19862 (KLR)

Mahugu & 13 others v Jepkorir & another

Environment and Land Court
19 September 2023
AOA Ombwayo
1,671 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Fourteen Kenyan land buyers won ownership of plots they purchased from a deceased seller because the sellers' family offered no evidence to challenge their claim.

What this practically means

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Executive summary

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Fourteen plaintiffs sued Catherine Jepkorir (widow) and Maina Kabuthia (father) as legal representatives of the estate of Charles Kabuthia Maina, who died on 7 July 2008. They claimed that between 2006 and 2008 they purchased various sub-divisions of LR Subukia/Subukia Block 1/331 (TETU) from the deceased and the 2nd Defendant, paid the purchase prices, obtained consent to subdivide and mutation forms, and took possession and developed their parcels. The deceased died before titles issued. In Nakuru High Court Succession Cause No. 605 of 2008 the defendants obtained a confirmed grant, rectified on 13 July 2012, which awarded the whole parcel to the 1st Defendant to the exclusion of the plaintiffs, who were never listed as purchasers. The plaintiffs sought a declaration of lawful ownership, an order compelling the defendants to execute transfer documents (with the Registrar authorized to execute in default) and a permanent injunction. The defendants filed a defence generally denying the claim but called no evidence at trial; the 1st plaintiff testified as sole witness, adopting statements and documents of the other plaintiffs. Relying on Edward Muriga v Schulter, Motex Knitwear v Gopitex and CMC Aviation v Crusair, the court held that uncontroverted evidence must be believed and that pleadings are not evidence. Judgment was entered for the plaintiffs: declaration of ownership, an order for execution of transfer documents with the Registrar authorized to execute in default, a permanent injunction, and costs to the plaintiffs.

Key legal issues

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01

Effect of a defendant's failure to adduce evidence

Holding

The plaintiffs' uncontroverted evidence stands and is to be believed; a defence filed but unsupported by evidence is not evidence.

Reasoning

The court relied on Edward Muriga v Schulter, Motex Knitwear v Gopitex and CMC Aviation v Crusair to hold that pleadings are not evidence and that where no witness testifies for the defence, the plaintiff's evidence stands unchallenged and uncontroverted, and must be believed.

p. 5
02

Entitlement to declaration, transfer orders and injunction on proved purchase

Holding

Plaintiffs who proved purchase, payment of consideration and possession are entitled to declaration of ownership, execution of transfer documents and a permanent injunction.

Reasoning

The 1st plaintiff testified that the plaintiffs purchased various sub-divisions from the deceased and the 2nd Defendant, paid the consideration, took possession and developed the land. The defendants filed a defence but called no evidence, so the purchases were uncontroverted and the prayers sought were granted.

p. 5

Legal principles established

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  • Where a defendant does not adduce evidence, the plaintiff's uncontroverted evidence is to be believed, as pleadings are not evidence.

Court orders

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  1. 1.Declaration that the plaintiffs are the lawful owners of the respective parcels of land they purchased from the deceased Charles Kabuthia Maina a.k.a Charles Maina Kabuthia and the 2nd Defendant
  2. 2.Order directing the Defendants to execute all necessary documents to effect transfer to each plaintiff of his respective portion, failing which the Registrar of the Court is authorized to execute the documents and effect transfer in favour of the plaintiffs
  3. 3.Order of permanent injunction restraining the Defendants, their assigns or agents and anyone claiming under them from interfering with the plaintiffs' possession, occupation, development and use of their respective parcels
  4. 4.Costs of the suit to the plaintiffs

Authorities

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Cases cited (5)

  • Edward Muriga Through Stanley Muriga Vs. Nathaniel D. Schulter
    Civil Appeal No.23 of 1997

    Where a defendant does not adduce evidence, the plaintiff's evidence is to be believed; defence allegations are not evidence.

  • Motex Knitwear Limited Vs. Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No.834 of 2002

    Uncalled defence evidence leaves plaintiff's evidence unchallenged and defence claims unsubstantiated.

  • Autar Singh Bahra And Another Vs. Raju Govindji
    HCCC No.548 of 1998

    Cited within Motex Knitwear for the same proposition on unchallenged evidence.

  • Edward Mariga through Stanley Mobisa Mariga vs. Nathaniel David Shulter & Another
    [1979] eKLR

    Where respondents do not give evidence, only the appellant's version of events stands.

  • CMC Aviation LTD vs. Crusair LTD (no.1)
    (1987) KLR 103

    Pleadings are not normally evidence; averments depend on evidence for proof of their contents.

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) Constitution / ELC Act) - not expressly stated 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, "Mahugu & 13 others v Jepkorir & another", Case Analysis (2023). Environment & Land Case 363 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19862/eng@2023-09-19

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