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ELCAllowed· [2024] KEELC 5527 (KLR)

Oldeane Limited v Orioki & another (Environment & Land Case E090 of 2022) [2024] KEELC 5527 (KLR)

Environment and Land Court
25 July 2024
LKL. Komingoi
1,149 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court restored a company's ownership of 89.5 hectares after someone fraudulently altered land records, confirming even uncontested claims must be properly proven.

What this practically means

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Executive summary

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The Plaintiff, a registered company, sued the 1st Defendant and the Chief Land Registrar (2nd Defendant) by plaint dated 1st November 2022, claiming ownership of Kajiado/Ewuaso Kedong/1557 measuring approximately 89.5 hectares. It alleged that it purchased the property through Peter Kariuki Njoroge from Lekuura Ole Tumanga, obtained title on 16th July 2013, and remained in possession until 2019 when the 1st Defendant fraudulently caused the green card and register entries to be altered to show her as owner, with the 2nd Defendant aiding the concealment. The Plaintiff sought a declaration of ownership, expungement of the 1st Defendant's name from the register, entry of its own name, a permanent injunction, surrender of title documents for shredding, and costs. Neither defendant filed a defence or participated; the 1st Defendant only entered appearance. PW1, a director, adopted her witness statement and produced exhibits including the title deed, searches, transfer documents and evidence of electronic funds transfers totalling Kshs.7,177,000/=. The court framed two issues: entitlement to the prayers sought, and costs. Applying Section 107 of the Evidence Act and the Kenya Power & Lighting case, the court held that even uncontested evidence must be interrogated and proved on a balance of probabilities. Finding the plaintiff's case uncontroverted and proved, judgment was entered for the Plaintiff: a declaration of lawful ownership, expungement of the 1st Defendant's name and restoration of the Plaintiff's registration within 60 days, a permanent injunction, surrender of title documents for shredding within 60 days, and costs against the Defendants.

Key legal issues

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01

Whether the plaintiff, in an uncontested suit, is still bound to prove its claim to the required standard

Holding

Yes; the plaintiff must prove its case on a balance of probabilities notwithstanding non-appearance by the defendants, and on the documentary evidence produced the claim was proved

Reasoning

The court invoked Section 107 of the Evidence Act to hold that the burden of proof lies with the party asserting a claim, even where the suit proceeds uncontested. Relying on the Kenya Power case, it held that uncontroverted evidence must be interrogated. The plaintiff produced its title deed, searches, transfer documents and proof of payment, which together satisfied the standard.

p. 2
02

Whether the plaintiff proved ownership of Kajiado/Ewuaso Kedong/1557 and entitlement to restoration of its title

Holding

Yes; the plaintiff proved purchase and registration in 2013 and the fraudulent alteration of records by the 1st Defendant, entitling it to declaration, expungement, entry of its name, injunction and surrender of documents

Reasoning

The plaintiff produced a title deed issued on 16th July 2013, searches showing prior registration of Lekuura Ole Timanga, electronic funds transfers of Kshs.7,177,000/= to Peter Kariuki Njoroge, and evidence that the green card was altered to reflect the 1st Defendant as owner. The defendants did not contest the claim, and the court found the case proved on a balance of probabilities.

Legal principles established

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  • Uncontroverted evidence must still be interrogated and a plaintiff must prove its case on a balance of probability even where the evidence is unchallenged

Court orders

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  1. 1.Declaration that the Plaintiff is the lawful owner of the whole of property known as Kajiado/Ewuaso Kedong/1557 measuring 89.5 hectares
  2. 2.2nd Defendant directed to expunge the name of the 1st Defendant from the register held at Ngong registry including the green card within 60 days
  3. 3.2nd Defendant directed to ensure the Plaintiff's name is entered on the records as proprietor of the suit property within 60 days
  4. 4.Permanent injunction restraining the 1st Defendant, her agents, servants or those claiming through or under her from dealing with the suit property
  5. 5.1st Defendant to surrender all title documents in her possession relating to the suit property to the Chief Registrar of Land for immediate shredding within 60 days
  6. 6.Defendants to bear costs of the suit

Authorities

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Legislation

  • Evidence ActSection 107
  • Land Registration ActSection 26

Cases cited (1)

  • Kenya Power & Lighting Company Ltd Vs. Nathan Karanja Gachoka & Another
    (2016) eKLR
Jurisdiction invoked
Original civil jurisdiction under the Environment and Land Court Act in respect of title to land (Kajiado/Ewuaso Kedong/1557)

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, "Oldeane Limited v Orioki & another (Environment & Land Case E090 of 2022) [2024] KEELC 5527 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5527/eng@2024-07-25

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