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ELCDismissedNot stated in the judgment text provided· [2025] KEELC 3211 (KLR)

Makero v Etyang (Environment & Land Case E010 of 2020) [2025] KEELC 3211 (KLR)

Environment and Land Court
7 April 2025
BOBOAZ N. OLAO
2,417 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Even when the other party skips court, you must still prove your land claim with solid evidence, especially if you allege fraud.

What this practically means

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Executive summary

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Charles Emodo Makero sued Fejenia Ikinyala Etyang seeking a declaration that her late husband, David Sebastian Etyang Emuria, had been registered as proprietor of land parcel South Teso/Osurette/1011 in trust for him; cancellation of entries 4 and 5 in the register; cancellation of the deceased's name and of restrictions entered by the defendant; and costs. The plaintiff claimed the deceased took advantage of his minority and his step-mother's vulnerability to register himself as trustee, and that after the deceased's death the defendant obtained letters of administration in Busia Chief Magistrate's Court Succession Cause No 420 of 2016 and apportioned half the land to herself without his consent. The defendant, acting in person, denied the trust and asserted ownership by the deceased, but did not attend the trial, which proceeded ex parte. Boaz N. Olao J held that although the defence amounted to mere unproven averments, the plaintiff still bore the burden of proving his case on a balance of probabilities, and more where fraud was alleged. The allegations of fraud and illegality were neither specifically pleaded nor proved, and the plaintiff's own application to revoke the grant had been dismissed, showing the acquisition flowed from an untainted court process. Joint registration made the parties tenants in common, which does not create a trust; a trust is implied only in cases of absolute necessity. The suit was dismissed with no orders as to costs, judgment delivered electronically on 7th April 2025.

Key legal issues

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01

Effect of the Defendant's non-attendance and failure to testify

Holding

The uncontroverted nature of the Plaintiff's evidence did not relieve him of the duty to prove his case on a balance of probabilities; the defence remained mere averments.

Reasoning

Counsel argued that the defendant's absence meant the plaintiff's case stood uncontroverted. The court accepted that pleadings unsupported by evidence count for nothing, but insisted that even in a formal proof the plaintiff must adduce credible evidence capable of standing in the absence of rebuttal. The Court of Appeal authority in Charterhouse Bank was applied to that effect.

p. 4
02

Proof of fraud and illegality

Holding

The allegations of illegality and fraud were neither specifically pleaded nor proved to the higher standard required; property acquired through a court process not overturned cannot be attacked as fraudulent.

Reasoning

The plaintiff pleaded that the registration was premised on a mischievous and fraudulent grant but did not plead particulars of fraud. Further, his own application to revoke the grant in the succession court had been dismissed, demonstrating the succession process was untainted. Applying Vijay Morjaria and Ndolo v Ndolo, the fraud claim failed.

p. 5
03

Whether a trust was created in favour of the Plaintiff

Holding

No trust could be implied; joint registration made the parties tenants in common with distinct shares, which does not make one a trustee of the other.

Reasoning

The plaintiff himself pleaded that he and the deceased were joint registered proprietors, which the court held made them tenants in common, each with a distinct share. Relying on Peter Ndungu Njenga v Sophia Watiri Ndungu, a trust is only implied in a case of absolute necessity, which was absent here.

p. 5

Legal principles established

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  • A defendant's failure to adduce evidence does not lessen the plaintiff's burden to prove its case to the required standard.
  • Fraud must be specifically pleaded, its particulars stated on the face of the pleading, and distinctly proved; it cannot be inferred from the facts.
  • Where fraud or forgery is alleged, the standard of proof is higher than the ordinary balance of probabilities.
  • A court will only imply a trust in a case of absolute necessity; co-ownership as tenants in common does not of itself create a trust.
  • Pleadings are not evidence; averments remain unproven until proved or admitted.

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Evidence ActSection 3 (definition of evidence)
  • Evidence ActSection 107(1) and (2)
  • Evidence ActSection 109

Cases cited (8)

  • Motex Knitwear Mills Ltd
  • Autar Bahra & Another -V- Raju Govind
    H.C.C.C. NO 548 of 1998
  • CMC Aviation Ltd -V- Cruisair Ltd (NO 1)
    1978 KLR 103 [1976-80 1 KLR 835]
  • Charterhouse Bank Limited (under Statutory Management) -v- Frank N. Kamau
    2016 eKLR
  • Vijay Morjaria v- Nansingh Madhusing Darbar & Another
    2000 eKLR
  • Kinyanjui Kamau -v- George Kamau
    2015 eKLR
  • Ndolo -v- Ndolo
    2008 1 KLR (G&F) 742
  • Peter Ndungu Njenga -v- Sophia Watiri Ndungu
    2000 eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel South Teso/Osurette/1011 (Article 162(2)(b) basis not expressly cited in the judgment)

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, "Makero v Etyang (Environment & Land Case E010 of 2020) [2025] KEELC 3211 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3211/eng@2025-04-07

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