Barisa v Omar & another

3. The Defendants led a joint statement of defence dated 25/6/2025. They denied the allegations raised by the Plainti and averred that the suit property belongs to the Kwa Maziwani Clan of the Pokomo tribe, which they are members, and thus have unfettered rights of access to the same. 4. The Plainti’s case was anchored on the testimonies of two witnesses. The Plainti (PW1) adopted his witness statement dated 11/5/2017 as his evidence-in-chief and produced the documents in the list of documents dated 8/4/2021 as PEXH 1 (a) – (f), being copies of photographs. He testied that he was born on the suit property and has been residing thereon for 54 years. He stated that he is 74 years of age. 5. Barisa Maro Mohamed (PW2) equally adopted his witness statement dated 11/5/2017. He told that the court that the Plainti is his father and that when he was born, his father was already on the suit property, and that the Plainti does farming activities thereon. He stated that he is 48 years of age. 6. Since neither the Defendants nor their advocate was present at the hearing, the court closed both the Plainti’s and Defendant’s case after the testimony of PW2, and directed ling of nal submissions. 7. The Plainti’s submissions were brief. Counsel submitted that the Plainti is entitled to the reliefs sought as he has not only adduced evidence of his long and continuous occupation of the suit property for not only his shelter but also vast agricultural activities. She added that the suit property being unsurveyed and unregistered land, the Plainti has ascertained his ownership. Counsel relied on the cases of Caroline Awinja Ochieng & Another v Jane Anne Mbithe Gitau & 2 Others [2015] eKLR; Wangui & 2 Others v Wangui & Another (Environment and Land Appeal 3 of 2021) [2022] KEELC 3755 (KLR); and Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others [2016] eKLR. Analysis And Determination 8. The main issue for determination is whether the plainti has proved his case against the Defendants to the required standard.Section 107 of the Evidence Act CAP 80 provides that: “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person” 9. The Plainti therefore had the burden of proof to show that the suit property belonged to him. The Plainti’s case was that he inherited the suit property from his late father and has been in occupation thereof for about 54 years. The evidence on record are copies of photographs showing a semi-permanent house, and numerous trees that seem mature. This evidence was uncontroverted. Moreover, the Defendants, although their case was unsubstantiated, admitted that the Plainti and particularly his late father was in occupation of the suit property, having been licensed to occupy the same by the community. I am satised that the requirements of Order 4 Rule 3 of the Civil Procedure Rules have been satised in that there is sucient description of the property that makes it identiable. 10. While the claim of the suit property being community land was proved or disproved, one fact remains, and that is, the Plainti has been in occupation of the suit property and has conducted developments thereon. However, it appears that there is great likelihood that the land is adjudicated community land and the suit parcel has not thus been registered in the names of any of the parties to the present suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18714/eng@2025-05-26 2

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11. Caroline Awinja Ochieng & another v Jane Anne Mbithe Gitau & 2 others [2015] eKLR (HC) held as follows: “ Unlike in the case of registered land where the register easily and on a prima facie basis reveals the owner, the burden and task is always heavier for the court to carry when the court has to trace the true owner of the unregistered parcel of land. The parties are never co-proprietors and neither do they so will. The court has to perform the rather delicate task of sorting out a muddle which has potentially long term serious consequences as only one party is to be determined as having the better title.” 12. Caroline Awinja Ochieng & another (supra) was a case regarding an urban plot in the suburbs of Nairobi city, of which the City Council was the overall title owner, designated for the Matopeni Squatters & Police Station Resettlement Scheme, but which could not qualify to be called community land; however, it must be construed as also oering a guideline as to what parameters the court ought to consider when considering mutually opposed claims to unregistered land of any kind. In the circumstances it would be amiss to seek evidence of proof of registered title to the land because in that case none of the opposing claims of the parties herein will stand; instead the court will be pragmatic and examine the available evidence of a prima facie claim of interest in the suit land by either party. 13. The court in Caroline Awinja Ochieng & another (supra) later on in the judgment stated as follows: 14. “ 24. In determining the above issue it would perhaps be appropriate to rst state that tracing ownership of unregistered land is dependent on tracing the root of title. Unlike registered land where ownership is domiciled and founded in the register of titles, ownership of unregistered land and the ascertainment or conrmation thereof involves the intricate journey of wading through documentary history. 25. The simple reason is that unregistered titles exist only in the form of chains of documentary records. The court has to perform the delicate task of ascertaining that the documents availed by the parties are not only genuine but also lead to a good root of title minus any break in the chain. It is the delivery of deeds or documents which assist in proving not only dominion of unregistered land but also ownership. The deeds must establish an unbroken chain that leads to a good root of title or title paramount. A good compilation of the documents or deeds relating to the property and concerning the claimant as well as any previous owners leading to the title paramount certainly proves ownership. It is such documents which are basically ‘the essential indicia of title to unregistered land’’: per Nourse LJ in Sen v Headley [1991] Ch. 425 at 437. 26. The documents in my view are limitless. It could be one, they could be several. They must however establish the claimant’s benecial interest in the property. Examples of the deed or documents include, at least in the Kenyan context: sale agreements, Plot cards, Lease agreements, allotment letters, payment receipts for outgoings, conrmations by the title paramount, notices, et al.” This court has no doubt that a claim of interest in land is capable of being established not just by way of documentary evidence but also by other evidence. By extrapolation of the practice of seeking root of registered title, it should be noted that when it comes to unregistered land devoid of documentation, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18714/eng@2025-05-26 3

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other means of proof such as oral evidence, possession and utilization over a period of time, and genealogy may be relied on to establish a claim of interest over the land. considering the evidence of the plainti as analysed in paragraphs 9 and 10 herein above, this court has no doubt that of the two opposing sides herein, it is the plainti, who is in possession, who has established that he has some interest in the suit land. 15. In the present case however, while fully aware of the prayers sought in the plaint, the court will only go to the limit of maintaining the status quo on the ground as there are statutory processes that are expected to be applied to community land in future that will eventually bear title in respect of the suit land and this court does not wish to pre-empt them. Arising from such considerations is this court’s verdict that it should give orders that should maintain peace on the ground between the parties. In the given circumstances, I hereby order an injunction order restraining the Defendants, their agents and servants and any one claiming under them from interfering with the suit property in any manner or trying to evict the Plainti from the suit premises, or in any other manner whatsoever interfering with the suit premises including entry or stay thereon, pending those statutory processes. Each party shall bear their own costs of this suit. DTED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 26TH DAY OF MAY 2025. MWANGI NJOROGE JUDGE, ELC MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18714/eng@2025-05-26 4

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