Gakio v Kurgat & 2 others (Environment & Land Case 155 of 2016) [2024] KEELC 6231 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered three defendants evicted after they failed to prove they bought the land they occupied, showing documented ownership records win land disputes.
What this practically means
#Executive summary
#Key legal issues
#Ownership of unregistered land where no title has been issued
The plaintiff proved ownership of the suit parcels through a complete documentary trail - the group's purchase agreement, share certificates, Certificates of Ownership, sketch maps and the surveyor's area list - whereas the defendants produced no evidence linking their purchased plots to the land they occupy
The court adopted the approach in Caroline Awinja Ochieng that ownership of unregistered land is established by tracing a chain of documentary records to a good root of title. The plaintiff showed acquisition through the Jijenge Self Help Group in 1998-2000. The defendants, who never testified, bought Plot 212 from David Keter in 2013 - a different parcel - and exhibited no chain connecting the plaintiff's land to their vendor. The surveyor confirmed on the ground that the plaintiff owns Plots 957 and 964.
Effect of defendants' failure to testify
Failure by the defendants to testify or call evidence meant their pleaded claims, including bona fide purchase, remained unproved mere allegations, but the plaintiff still had to prove her case on a balance of probabilities
Relying on Charterhouse Bank v Frank N. Kamau, the court held that pleadings are not evidence and no decision can be founded on unproved averments. The 2nd Defendant never even filed a defence. Nevertheless, per Kirugi v Kabiya, the plaintiff's burden was not lessened by the defendants' default; the court examined her evidence independently and found it sufficient to discharge the burden.
Entitlement to eviction orders
An owner of land is entitled to vacant possession and peaceful enjoyment, and eviction orders issue against persons occupying without permission, with 30 days allowed to vacate given the structures erected
Having found the plaintiff to be the rightful owner, the court applied Sections 24 and 25 of the Land Registration Act as explained in Anthony Ndun'gu Maina v Faith Wanjiku Maina, and Order 22 Rule 29(1) of the Civil Procedure Rules on delivery of possession. Because the defendants had put up structures, the court granted them 30 days to vacate, after which the plaintiff could evict without further reference to the court.
Legal principles established
#- Ownership of unregistered land is proved by tracing the root of title through an unbroken documentary chain leading to a good root of title
- A plaintiff must prove her case on a balance of probabilities even where the defendant fails to adduce evidence
- Pleadings are not evidence; averments remain mere allegations until proved
Court orders
#- 1.The 1st, 2nd and 3rd Defendants shall have 30 days to vacate the plaintiff's parcels of land previously known as Chemalmal 62A (2) and Chemalmal 62A (3), now known as Plot No. 957 and Plot No. 964 respectively, failing which the plaintiff may evict them without further reference to the court at the defendants' expense
- 2.A permanent injunction be and is hereby issued restraining the Defendants from trespassing, encroaching, entering into, selling, developing, dealing, or in any other manner interfering with the plaintiff's quiet possession and ownership of the said parcels
- 3.The Plaintiff is awarded costs of the suit to be paid by the Defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to ownership, possession and occupation of land
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwangi & another v Kamau & another (Environment and Land Appeal E020 of 2024) [2025] KEELC 1072 (KLR)[2025] KEELC 1072 (KLR)11 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Gakio v Kurgat & 2 others (Environment & Land Case 155 of 2016) [2024] KEELC 6231 (KLR)", Case Analysis (2024). Environment & Land Case 155 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6231/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.