Nabule & another v Tamu & another (Environment and Land Appeal E003 of 2024) [2025] KEELC 7101 (KLR)
The bottom line
#A Kenyan court confirmed that winning an undefended land case still requires documentary proof of ownership—uncontested claims don't automatically succeed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the Appellants proved their claim before the trial court
- 2.Whether or not the trial court erred in dismissing the Appellants' suit
- 3.Whether or not the Appellants are entitled to the relief sought herein
- 4.Costs of the appeal
Key legal issues
#Whether the Appellants proved ownership of and entitlement to possession of the suit land
They did not; no documents of ownership were produced and the 1965 sale agreement conferred no ownership rights as the transaction was never completed with Land Control Board consent or transfer.
The Appellants pleaded ownership based on a 1965 sale agreement and 56 years of occupation. The court found the agreement alone did not confer ownership: there was no Land Control Board consent under section 6 of the Land Control Act, no executed transfer, and no title certificate. The claim in the trial court was based on trespass and ownership, not adverse possession, and the magistrate's court lacked jurisdiction to grant adverse possession relief under section 38 of the Limitation of Actions Act.
Whether a plaintiff must prove its case where the suit is undefended
Yes; the burden of proof remains on the plaintiff on a balance of probabilities notwithstanding the absence of a defence.
Relying on Karugi v Kabiya and Gichinga Kibutha, the court held that formal proof still requires the plaintiff to adduce evidence convincing the court on a balance of probabilities. An uncontested claim does not automatically succeed, and without documents of ownership the Appellants failed to discharge that burden.
Whether the trial court erred in awarding costs to the Respondents
Yes; the Respondents did not file a defence or attend the hearing, so they were not entitled to costs of the suit.
The proceedings showed the Respondents neither filed a defence nor attended court for the hearing. Having not participated in the prosecution or defence of the case, they could not be treated as successful parties entitled to costs, and the trial court's discretion on costs was accordingly disturbed on appeal.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses.
- The burden of proof on a plaintiff is not lessened by the fact that the case is undefended or heard by way of formal proof.
- Undefended evidence does not automatically entitle a claimant to judgment; the burden of proof must still be discharged.
Court orders
#- 1.The order awarding costs to the Respondents is set aside
- 2.The rest of the judgment of the trial court is upheld
- 3.Each party to bear own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Vihiga Principal Magistrate's Court (ELC)
- 69 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the trial magistrate's court (Memorandum of Appeal dated 16th February 2024)
Relief refused
#Appeal be allowed / trial magistrate's orders of 18th January 2024 be set aside / prayers in the plaint be granted
The Appellants produced no documents of ownership and did not discharge the burden of proof even though the suit was undefended
Costs of the suit in the trial court to the Respondents
The Respondents never filed a defence nor attended the hearing, and so were not entitled to costs
Costs
The order awarding costs to the Respondents in the trial court was set aside; each party to bear own costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Without documents of ownership of the land the Plaintifi/appellants did not discharge the burden of proof.
Although the suit was undefended, the Plaintifi still had a duty to prove his case on a balance of probabilities as required by the law.
Further the trial court had no jurisdiction to entertain a claim of adverse possession under section 38 of the Limitation of Actions Act.
The order awarding costs to the Respondents is hereby set aside. The rest of the judgment of the trial court is upheld.
Each party to bear own costs of the appeal.
Issues in the judgment
#The Appellants' claim in the trial court was framed in trespass and ownership, yet counsel's submissions argued adverse possession, a claim the court noted was neither pleaded nor within the trial court's jurisdiction.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nabule & another v Tamu & another (Environment and Land Appeal E003 of 2024) [2025] KEELC 7101 (KLR)", Case Analysis (2025). Vihiga ELC Appeal (Memorandum of Appeal dated 16th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7101/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.