Rayit & 2 others v Rayit (Environment & Land Case E159 of 2023) [2024] KEELC 4828 (KLR)
The bottom line
#A Kenyan court evicted a family member from inherited property, confirming that even relatives with long residence cannot override a registered owner's title.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs proved their claim to be entitled to the orders sought
Yes - the 3rd Plaintiff is the absolute beneficial owner under the will, the Defendant acted contrary to the valid and unvacated mediation agreement of 27/07/2017, and the Plaintiff's proved their claim on a balance of probability.
The Court found it undisputed that the 3rd Plaintiff is the absolute beneficial owner of the suit property per clause 2 of the will dated 31/05/2005, whose validity had never been successfully contested. The Defendant admitted running businesses and permitting entities on the property without the 3rd Plaintiff's consent, contrary to the mediation agreement dated 27/07/2017 which had not been set aside or vacated and was affirmed by the succession court. The Defendant thus had no legal right to remain on the property.
Whether the Court could rely on the ruling of 6/05/2024 revoking the grant, introduced only in the Plaintiff's written submissions
No - new issues cannot be raised in submissions and the Court would rely only on the evidence filed.
The Plaintiffs attempted to introduce, in their written submissions, evidence of a ruling delivered on 6/05/2024 by Hon. Lady Justice Maureen Odero revoking the grant and issuing a fresh one. The Court held that submissions are not pleadings and there was no affidavit evidence supporting them, so it declined to consider that material and relied only on the evidence filed when the suit was filed.
Who should bear the costs of the suit
Each party to bear their own costs, exceptional circumstances existing as the suit was between family members.
Although costs follow the event under Section 27 of the Civil Procedure Act and the successful party ordinarily gets costs, the Court found exceptional circumstances because the suit was filed between family members, and directed each party to bear their own costs notwithstanding the Plaintiffs' success.
Legal principles established
#- A certificate of title is prima facie evidence of ownership and can only be challenged on grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme.
- The rightful owner of land has a right to possession, occupation and use of the suit land.
- New issues cannot be raised in written submissions; submissions are not pleadings and are not evidence.
- Costs follow the event but the Court has discretion to order each party to bear their own costs in exceptional circumstances, such as suits between family members.
Court orders
#- 1.An eviction order is hereby issued against the Defendant, his servants, agents, employees, heirs and dependants or any other person claiming through him from Plot Number LR. 1870/Ix/59 Muthithi Road.
- 2.The Defendant is hereby ordered to forthwith deliver up the title of the property known as Plot Number LR. 1870/Ix/59 Muthithi Road to the 3rd Plaintifi.
- 3.The O.C.S. Parklands Police Station is hereby ordered to provide security and assistance during the enforcement of the orders above.
- 4.Each party shall bear their own costs.
- Jurisdiction invoked
- Article 162(2) of the Constitution (jurisdiction of the Environment and Land Court over disputes relating to use, occupation and title to land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rayit & 2 others v Rayit (Environment & Land Case E159 of 2023) [2024] KEELC 4828 (KLR)", Case Analysis (2024). Environment & Land Case E159 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4828/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.