Kariuki & another v Thondu & 5 others (Environment and Land Case 138 & 146 of 2018 (Consolidated)) [2024] KEELC 5542 (KLR)
The bottom line
#A Kajiado court cancelled a fraudulently obtained land title and returned the property to its rightful owner, who had sued alone after the other side died.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved lawful ownership of Kajiado/Kipeto/1452
Yes - the plaintiff proved on a balance of probabilities that the transfer to the 1st Defendant was fraudulently effected
The green card showed the plaintiff was issued title in 1994 and that the property was transferred to David Mahugu Thondu on 22nd January 2013. The plaintiff alleged forgery of his signature on the transfer instruments and LCB consent. The 1st Defendant's suit abated on his death and was not prosecuted. The court was satisfied the plaintiff discharged his burden on a balance of probabilities despite the exparte proceeding.
Whether the burden of proof applies in an exparte suit
Yes - the plaintiff must still prove allegations even without contest
The court applied Sections 107 to 109 of the Evidence Act, holding that the doctrine that he who alleges must prove must be upheld regardless of whether the evidence is contested, and cited Palace Investments on proof on a balance of probabilities.
The fate of the 1st Defendant's counterclaim
Dismissed
The 1st Defendant died before prosecuting his suit; ELC 146 of 2018 was marked abated by order dated 26th April 2023. With no evidence supporting the adverse claim, the counterclaim fell away once the plaintiff proved his case.
Legal principles established
#- Even in an undefended/exparte suit, the plaintiff bears the burden of proving the case on a balance of probabilities
Court orders
#- 1.Permanent injunction restraining the 1st Defendant, his servants and/or agents from trespassing upon, harassing, intimidating, threatening, evicting, constructing structures, selling, allotting, alienating or denying the Plaintiff's access to, or in any way interfering with Kajiado/Kipeto 1452
- 2.Order directing the land registrar Ngong' to cancel title number Kajiado/Kipeto 1452 in the name of the 1st Defendant and revert the title to the Plaintiff with rectification of the green card
- 3.Declaration that the 1st Defendant's actions of entering into, transferring, or consents involving the property without the Plaintiff's consent contravened the Plaintiff's constitutional rights to own and acquire property
- 4.Declaration that the acts of the 1st to 4th defendants of aiding and/or abetting the transfers are illegal and be reversed as unconstitutional
- 5.Declaration that title Kajiado/Kipeto 1452 and any subsequent subdivisions and transfers are null and void and be cancelled
- 6.Costs of the suit to be borne by the 1st Defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land ownership, title and fraud claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki & another v Thondu & 5 others (Environment and Land Case 138 & 146 of 2018 (Consolidated)) [2024] KEELC 5542 (KLR)", Case Analysis (2024). ELC Case No. 138 of 2018 (consolidated with ELC Case No. 146 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5542/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.