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ELCDismissedNot stated in the judgment (Plaint dated 24th July, 2023)

Karisa & 12 others (Suing thro. the Estate of Charo Karisa who died Intestate) v Rimba (Environment and Land Case E002 of 2023) [2025] KEELC 5168 (KLR)

Environment and Land Court
4 July 2025
5,913 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Mombasa court dismissed a land claim because the plaintiffs offered no evidence—their written complaint alone couldn't prove ownership of six acres.

What this practically means

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Executive summary

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The thirteen plaintiffs, beneficiaries of the estate of the late Charo Karisa, sued the defendant claiming that he sold their father six acres of land at Kashani, Bamburi in 2002, and sought a declaration of beneficial ownership, a permanent injunction, and an order compelling the Land Registrar and District Land Surveyor, Mombasa to survey and issue titles over the six acres. The defendant admitted selling land to the deceased but insisted it was only 2 1/2 acres under a sale agreement of 5th October, 2002 for Kshs. 32,500/-, the original agreement for six acres having been cancelled when the acreage was found smaller. The plaintiffs closed their case without calling any witnesses on 24th October, 2024, while the defendant testified through DW-1 and DW-2. The court framed three issues: beneficial ownership, entitlement to relief, and costs. Holding that ownership of unregistered land must be proved by tracing a root of title through documentary evidence, the court found that the plaintiffs produced no sale agreement and, having failed to adduce evidence, their pleadings remained unsubstantiated allegations, leaving the defendant's account unchallenged. Applying the balance-of-probabilities standard, which does not shift even absent rebuttal, the court concluded the plaintiffs had not proved their claim. Judgment was accordingly entered in favour of the defendant with costs to the defendant, borne by the plaintiffs. The judgment was delivered virtually at Mombasa on 4th July, 2025 by Hon. Mr. Justice L.L. Naikuni.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff is the beneficial owner of the suit property and thus established its case
  2. 2.Whether the Plaintiffs are entitled to the orders sought in the Plaint
  3. 3.Who bears the costs of the suit?

Key legal issues

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01

Whether the plaintiffs proved beneficial ownership of the six acres at Kashani

Holding

The plaintiffs did not. They closed their case without calling any witnesses and produced no sale agreement; unregistered title must be proved through documentary chains, which were not availed.

Reasoning

The court held that ownership of unregistered land is proved by tracing a root of title through documentary evidence such as sale agreements. The plaintiffs closed their case without calling witnesses, so their pleadings remained unsubstantiated allegations. The defendant's evidence of sale of 2 1/2 acres stood unchallenged. Under Article 40 of the Constitution and sections 24, 25 and 26 of the Land Registration Act, proprietary rights require proof, and the burden lay on the plaintiffs on a balance of probabilities.

p. 8
02

Whether the plaintiffs were entitled to the reliefs sought in the plaint

Holding

No, having failed to prove their claim on a balance of probabilities, none of the reliefs could issue.

Reasoning

The declarations, injunction and order for survey and issuance of title all rested on proof of the alleged 2002 sale of six acres. Since no evidence was tendered to substantiate the claim, the court found the claim had not been proved to the standard required and refused all relief sought in the plaint.

p. 10
03

Who bears the costs of the suit

Holding

The defendant, as the successful party, was awarded costs against the plaintiffs.

Reasoning

Costs are discretionary but follow the event under section 27(1) of the Civil Procedure Act. As the plaintiffs did not prove their claim, the defendant was entitled to costs for participating in the suit, and no exceptional circumstances were shown to depart from the general rule.

p. 11

Legal principles established

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  • Ownership of unregistered land is proved by tracing the root of title through documentary records forming an unbroken chain
  • A party who fails to adduce evidence leaves its pleadings as unsubstantiated mere statements, and the opposing evidence stands unchallenged subject to proof
  • The standard of proof in civil matters, including land matters, is on a balance of probabilities and does not shift even in the absence of rebuttal
  • Costs follow the event and the successful party is ordinarily entitled to costs

Court orders

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  1. 1.Judgment entered in favour of the Defendant as the Plaintiffs failed to prove their case in respect of the Plaint dated 24th July, 2023, with costs to the Defendant
  2. 2.Costs of the suit awarded to the Defendant, to be borne by the Plaintiffs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes in Bamburi, Mombasa County; the Defendant admitted the jurisdiction of the Court

Relief refused

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Declaration that the plaintiffs are jointly the lawful beneficial owners of six (6) acres at Kashani, Mombasa

Plaintiffs failed to adduce any evidence or produce a sale agreement to prove ownership on a balance of probabilities

p. 10

Permanent injunction restraining the Defendant from entering, remaining or selling any portion of the six (6) acres at Kashani, Bamburi

Claim not proved; pleadings without evidence remain mere allegations

p. 10

Order directing the Land Registrar and District Land Surveyor Mombasa to survey and issue title deed for six (6) acres to the plaintiffs

Plaintiffs did not prove purchase or beneficial ownership of the six acres claimed

p. 8

Costs

Costs of the suit awarded to the Defendant, to be borne by the Plaintiffs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That Judgment be and is hereby entered in favour of the Defendant as the Plaintifis have failed to prove their case in respect to the Plaint dated 24th July, 2023 with costs to the Defendant.
p. 11Final orders - dismissal of suit
That cost of the suit to be awarded to the Defendant to be borne by Plaintifi.
p. 11Costs order
tracing ownership of unregistered land is dependent on tracing the root of title
p. 6Proof of title to unregistered land
It is trite law that where a party fails to call evidence in support of its case, that party's pleadings remain mere statements of facts
p. 9Consequences of failure to adduce evidence
The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.
p. 10Standard of proof
the Plaintifis did not show or produce anything before court to show that there was a covenant of sale and purchase of the suit land
p. 8Absence of documentary proof of sale

Issues in the judgment

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minor

The court states it crafted four issues for determination but lists only three

minor

The court states the parties had fully complied with Order 11 but the plaintiffs closed their case without calling any witnesses

minor

DW-1's evidence on the first sale agreement is internally inconsistent on whether it covered 6 acres for Kshs. 50,000/- and was cancelled

minor

Costs provision is cited as 'Section 27 (1) of the Civil Procedure Rules Cap. 21' although Cap. 21 is the Civil Procedure Act, not the Rules

minor

The disposition grants judgment 'in favour of the Defendant' on a plaintiffs' suit without a counterclaim, rather than simply dismissing the suit

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, "Karisa & 12 others (Suing thro. the Estate of Charo Karisa who died Intestate) v Rimba (Environment and Land Case E002 of 2023) [2025] KEELC 5168 (KLR)", Case Analysis (2025). Not stated in the judgment (Plaint dated 24th July, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5168/eng@2025-07-04

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