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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 5207 (KLR)

Makhanu & another v Land Registrar Bungoma County (Environment & Land Case E013 of 2021) [2024] KEELC 5207 (KLR)

Environment and Land Court
11 July 2024
ECE. C. Cherono
2,179 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Bungoma dismissed a family's bid to reverse a land subdivision because they failed to prove the registrar acted wrongly.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Shem Makhanu Katila (deceased), sued the Land Registrar Bungoma seeking cancellation of parcels Ndivisi/Khalumuli/2537 and 2538 and restoration of the original parcel Ndivisi/Khalumuli/1354 to the deceased's name, plus costs. They alleged the defendant irregularly closed the title and created new numbers during the pendency of Succession Cause No 156 of 2006. The defendant denied the claim, asserting the subdivision was done lawfully pursuant to a court order in Webuye SRM Misc. Application No 265 of 1997 adopting a Land Disputes Tribunal award, with the deceased's own participation during his lifetime. Two plaintiffs' witnesses and one defence witness testified. The court framed a single issue: whether the plaintiffs were entitled to the orders sought. On the evidence, the tribunal proceedings concerned Ndivisi/Muchi/1354, a different parcel. However, the mutation form bearing the deceased's thumbprint, registered on 4/2/2003, and a letter of 8th July 2003 from the area chief confirmed that the deceased sanctioned the subdivision, which was effected on 2/9/2003 before his death on 26th March 2004. The court applied sections 107 of the Evidence Act and the balance-of-probabilities standard, and held that the plaintiffs' claim was contradicted by their own search certificates showing closure of title in 2003, three years before the succession cause. The suit was dismissed with costs. The defendant did not file submissions.

Key legal issues

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01

Whether the plaintiffs proved that the defendant irregularly closed and subdivided Ndivisi/Khalumuli/1354

Holding

Suit dismissed; plaintiffs failed to discharge the burden of proof on a balance of probabilities

Reasoning

Although the tribunal order relied on by the defendant related to a different parcel (Ndivisi/Muchi/1354), the mutation form bearing the deceased's thumbprint and the chief's letter of 8th July 2003 showed the deceased sanctioned the subdivision during his lifetime. The title was closed on 2/9/2003, before the deceased's death on 26th March 2004 and before the 2006 succession cause. The plaintiffs' pleadings contradicted their own search certificates.

p. 4

Legal principles established

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  • He who alleges must prove; the burden of proof in civil cases lies on a balance of probabilities
  • Parties are bound by their pleadings and evidence at variance with the pleadings must be disregarded

Court orders

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  1. 1.The suit is dismissed with costs

Authorities

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Legislation

  • Evidence ActSection 107

Cases cited (4)

  • William Kabogo Gitau v George Thuo & 2 others
    [2010] eKLR
  • Palace Investments Ltd v Geoffrey Kariuki Mwenda & another
    [2015] eKLR
  • Miller v Minister of Pension
    (1947) ALL ER 372
  • Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcels (not expressly 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, "Makhanu & another v Land Registrar Bungoma County (Environment & Land Case E013 of 2021) [2024] KEELC 5207 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5207/eng@2024-07-11

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