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ELCAllowedEnvironment & Land Case E009 of 2020· [2024] KEELC 6136 (KLR)

Ndumbuthi v Mainga (Environment & Land Case E009 of 2020) [2024] KEELC 6136 (KLR)

Environment and Land Court
18 September 2024
2,524 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court confirmed a registered title holder's absolute ownership, ordering eviction and an injunction against trespassers on parcel Nzaui/Mumbuni/221.

What this practically means

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Executive summary

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The Plaintiff, Harrison Mutua Ndumbuthi, sued for eviction, a declaration of ownership and a mandatory injunction in respect of land parcel Nzaui/Mumbuni/221, alleging that the Defendant, registered proprietor of the adjoining parcel Nzaui/Mumbuni/222, had unlawfully trespassed onto his land, cleared vegetation and put up structures following a 2013 boundary determination. The Defendant filed a defence but did not attend the hearing on 31 May 2023 despite due service, and the suit proceeded as an undefended claim. The Plaintiff testified as the sole witness, adopting his witness statement and producing a certificate of official search, his title deed issued 8 December 2014, a Land Registrar's report dated 21 September 2021, a District Surveyor's report dated 4 October 2013 and survey sketch maps. The Land Registrar's report confirmed the boundary was known and that the real dispute was an ownership claim between the Plaintiff and the family of Musomba Kikwau, with two families living on parcel 221. The court, per Hon. T. Murigi J, held that even in an undefended suit the plaintiff bears the burden of proof on a balance of probabilities, citing Kirugi v Kabiya and Gichinga Kibutha v Caroline Nduku. Applying Sections 24, 25 and 26(1) of the Land Registration Act, the court found the Plaintiff's title unchallenged by any evidence of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme, and therefore absolute and indefeasible. Finding trespass proved, the court entered judgment for the Plaintiff: an order of eviction with police security, a declaration that parcel Nzaui/Mumbuni/221 belongs to the Plaintiff, a mandatory injunction restraining the Defendant from entering, trespassing, occupying, fencing or building on the land, and costs of the suit. Judgment was delivered on 18 September 2024 via Microsoft Teams.

Key legal issues

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01

Whether the Plaintiff is the registered proprietor of the suit property

Holding

The court found the Plaintiff is the registered proprietor, holding a title deed issued 8/12/2014, unchallenged by any evidence of fraud or misrepresentation.

Reasoning

The Plaintiff produced a certificate of official search and a title deed issued on 8/12/2014. Under Sections 24, 25 and 26(1) of the Land Registration Act, registration vests absolute and indefeasible ownership. No evidence was adduced showing the title was obtained through fraud, misrepresentation, illegally, unprocedurally or through a corrupt scheme. The court therefore held the suit property belongs to the Plaintiff.

p. 4
02

Whether the Defendant ought to be evicted from the suit property

Holding

The court found the Plaintiff entitled to an order of eviction as prayed.

Reasoning

The Land Registrar's report confirmed the boundary between parcels 221 and 222 was known and that two families were living on parcel 221 with adverse claims. The Plaintiff proved trespass through the District Surveyor's report and sketch maps showing the Defendant cleared vegetation and put up structures. Trespass violates the right to possession, which the Plaintiff held as registered proprietor. His evidence being uncontroverted, eviction was granted.

p. 5
03

Whether a mandatory injunction should issue against the Defendant

Holding

The court granted the mandatory injunction restraining the Defendant from trespassing and interfering with the suit property.

Reasoning

Relying on Kenya Breweries Ltd v Washington Okeyo, the court noted a mandatory injunction may be granted at the hearing where the case is clear. Having found the Plaintiff to be the registered proprietor with an unchallenged title, and no evidence that the title had been revoked or challenged, the court found him entitled to the mandatory injunction restraining the Defendant from all acts of possession, usage and wastage of the land.

p. 5
04

Burden of proof in an undefended suit

Holding

Even where the Defendant did not attend, the Plaintiff had to formally prove his case on a balance of probabilities.

Reasoning

The court relied on Kirugi v Kabiya and Gichinga Kibutha v Caroline Nduku for the principle that non-contest does not relieve a plaintiff of the evidentiary burden. The plaintiff must prove his case however much the opponent has not made a presence in the contest. The court applied this standard before assessing the documentary and oral evidence.

p. 3

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme
  • Failure by a defendant to contest a case does not absolve a plaintiff of the duty to prove the case on a balance of probabilities

Court orders

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  1. 1.An order of eviction issued against the Defendant, his agents, servants, family members and any person claiming through or under him, to be executed by court bailiff or licensed auctioneer with security provided by the O.C.S and/or Ward Commander Makueni Police Station
  2. 2.A declaration that all that parcel of land known as Nzaui/Mumbuni/221 belongs to the Plaintiff
  3. 3.An order of mandatory injunction compelling the Defendant, his agents, servants and family members from entering into, trespassing, occupying, fencing, building or engaging in any acts of possession, usage and wastage of Nzaui/Mumbuni/221
  4. 4.The Plaintiff awarded costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 26
  • Constitution of KenyaArticle 40
  • Land ActSection 152E
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25
  • Land Registration ActSection 26(1)

Cases cited (8)

  • Vijay Morjaria v Nansingh Madhusing Darbar & Another
    (2000) eKLR
  • Kinyajui Kamau v George Kamau
    (2015) eKLR
  • Atik Omar Atik & 3 Others v Joseph Katana & Another
    (2019) eKLR
  • Kenya Breweries Limited & Another v Washington O. Okeyo
    (2002) eKLR
  • Nation Media Group and 2 others v John Harun Mwau
    (2014) eKLR
  • Kirugi and Another Vs Kabiya & 3 others
    (1987) KLR 347
  • Gichinga Kibutha Vs Caroline Nduku
    (2018) eKLR
  • M'Mukanya Vs M'Mbijiwe
    (1984) KLR 761
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel Nzaui/Mumbuni/221

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, "Ndumbuthi v Mainga (Environment & Land Case E009 of 2020) [2024] KEELC 6136 (KLR)", Case Analysis (2024). Environment & Land Case E009 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6136/eng@2024-09-18

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