Muli v Munini (Environment & Land Case 436 of 2017) [2024] KEELC 6328 (KLR)

Both parties produced materially similar agreements dated 30th December 2004 and 23rd April 2005 with the same vendor, dates and consideration. The plaintiff produced no document examiner to discredit the defendant's agreements, while DW2, the vendor, testified that he sold to David Muindi Muli and that the defendant paid the final instalment. The defendant produced a Cooperative Bank letter evidencing the loan used for purchase, while the plaintiff's claim of a Ukulima Cooperative loan was unsupported by documents.

Applying Sections 107, 108 and 109 of the Evidence Act and the Supreme Court's decision in Raila Amolo Odinga v IEBC, the court held that the legal burden is static and remains with the plaintiff, while the evidential burden shifts to whoever would lose if no further evidence were adduced. Since the plaintiff sought judgment, it was upon her to prove her claim and discredit the defendant's assertions; the failure by the defendant to plead fraud did not relieve the plaintiff of this burden.

The court held that succession proceedings are concerned with distribution of a deceased's estate, not ascertaining ownership, and that the probate court lacks jurisdiction to determine ownership. Lawful ownership is anchored on proof of lawful acquisition under Article 40(1) and (6) of the Constitution. Further, the succession cause was filed by the Public Trustee and referred only to monies in the bank.

Though the parties made much of whether the plaintiff was married to David Muindi Muli, the court held that since it is not a probate and administration court it would not determine whether the plaintiff was a widow; any such question may be raised in Machakos HCC P&A 320 of 2013. Construction of a house on the land was likewise a non-issue, as construction could not confer ownership.