Nyamohanga v Keboye (Environment and Land Case 417 of 2017) [2026] KEELC 4425 (KLR)

the Civil Procedure Rules as well as Sections 1 and 3A of the Civil Procedure Act. He sought orders that: a) …Spent b) The Plaintiff's application dated 8th January 2026 filed by the Plaintiff/Applicant be struck out in its entirety with costs. c) The costs of this application be provided for. 3. The application is supported by the grounds set out on its face as well as those contained in the affidavit of Samwel Nicholas Keboye, the Applicant. The dispute herein is over the suit property land parcel number BUKIRA/BUHIRINGERANGERA/7 which is registered in the name of the respondent. Despite the said registration rather, the applicant stated the said property is jointly owned by the respondent and his brother, one Mokani Nyamohanga, in equal shares of 6.1 Ha to each party. He annexed a certificate of Confirmation of Grant dated 7 th December 2012 to show the respective shares of the two brothers. He also annexed to the affidavit a copy of the summons for certificate of confirmation of grant and referred the court to paragraph 7 thereof where the applicant requested the court to hold his brother’s land in trust until the said brother obtained an identity card. 4. The applicant asserted that the applicant does not have the locus standi to bring a suit over the entire suit property considering that his brother is entitled to half a share of the RULING ELC 417 OF 2017 2

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said property and the applicant has not obtained consent to file a suit on behalf of the said brother. He added that the applicant had not obtained a power of attorney to enable him file a suit on behalf of his brother. Moreover, the applicant drew this court’s attention to. 5. The applicant alleges that the respondent lacks locus standi to institute a suit on behalf of his brother Mokami Nyamohanga over the suit property. He also stated that the applicant did not disclose to this court the fact of an existing court order dated 24th December 2025, which bars him from interfering with his brother’s share of the suit property pending the hearing and determination of a suit brought against him by the said brother over the suit property. The said court order was annexed to the affidavit in support of the application. 6. In addition to the above stated, the applicant deponed that the respondent, despite holding a portion of the suit land in trust for his brother misled the court that he is the sole owner of the said land with the intention of disinheriting his brother and disposing the said land to third parties. 7. On the basis of the above stated grounds, the applicant contended that the applicant’s application dated 8 th January 2026 was made in bad faith, was lacking in merit and the same amounted to abuse of court process. He prayed that the said application be dismissed with costs. RULING ELC 417 OF 2017 3

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8. Regarding the application dated 08 th January 2026 the Respondent had moved this Court for orders that For the enforcement of the judgment delivered on 9 th July 2022; the defendant (now applicant) he forcibly evicted from the suit land parcel No. Bukira/Buhiringera/7; that a notice to show cause does issue requiring the defendant to appear before this to a show cause why he should not be cited for contempt of court for willful disobedience of the judgment and upon his failure to show cause the court be pleased to issue a warrant of arrest against the defendant for contempt of court; and costs of the application Response 9. The respondent did not file a response to this application. the application is therefore unopposed. Again, he did not attend Court when the inter partes hearing date came and the Area Assistant Chief and the Respondent’s brother attended court o shed light over the Respondent’s allegations that his brother had never come back from Tanzania. Oral Evidence on Availability of Respondent’s Brother 10. The court summoned the Area Assistant Chief as well as the applicant’s brother on 11th May 2026 and took down their oral testimony. The area Assistant Chief, Christine Masaka Kerege, testified that she was in charge of the Komakebe Sublocation where both Peter Nyamohanga and Mokami Nyamohanga hail from. She told the court that she wrote a letter dated 30 th RULING ELC 417 OF 2017 4

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March 2026 after Samuel Keboye visited her office to confirm whether Peter Marwa Nyamohanga and Mokami Myamohanga were actually brothers. She also indicated that she was aware of the land dispute between peter Nyamohanga and Mokami Nyamohanga although she had not spoken to Mokami Nyamohanga about the said dispute. It was her testimony that she learnt about the dispute when Peter Nyamohanga alleged that some people had entered into his land. however, the said people that Peter Nyamohanga was complaining about said that they had leased the land from Mokami Nyamohanga. Lastly, the area assistant chief told the court that Mokami Nyamohanga had returned from Tanzania and was actually in court. 11. On his part, Mokami Nyamohanga stated that he sold his portion of the land measuring 15 acres in the year 2003 to Samwel Keboye. He also stated that his brother turned against him and refused to give him his portion that he was supposed to inherit. Lastly, Mokami stated that he had sued his brother in Kehancha law courts over the said land. Issues, analysis and determination 12. After considering the application herein, the court forms the opinion that the issues that arise for determination are: whether the respondent’s application dated 8 th January 2026 should be dismissed /struck out, and who should bear the costs of the application. RULING ELC 417 OF 2017 5

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13. The issue here in is that the respondent filed the application dated 8th January 2026 contrary to the orders of the court in Kehancha in MCELC No. E062 of 2025 which were issued on 24th December 2025 of which he was duly served. Further, that the application was an abuse of the process of the court because the respondent did not own the entire parcel of land in dispute. 14. To begin with, it important to note the respondent did not file a reply to the applicant, hence the same was unopposed. Where a party does not tender evidence to counter allegations contained in pleadings, those allegations are generally deemed as uncontroverted. E077 of 2023) In Abdul v Mokua [2025] KEHC 4105 (KLR) (Civil Appeal (1 April 2025) (Judgment), the observed that: ‘’42. However, Odunga, J as he then was, in Bernard Philip Mutiso v Tabitha Mutiso [2022] eKLR, brought out the question of controverting evidence that I fully agree with, as follows: 53. In this case the only people who could have explained the circumstances under which the accident occurred were Musyoka Mutiso who was ahead of the deceased, PW2 and the Appellant. PW2 gave evidence that tended to show that the accident was caused by the negligence of the Appellant while Musyoka Mutiso was not called to RULING ELC 417 OF 2017 6

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testify. In those circumstances one would have expected the Appellant to testify in order to controvert the evidence of PW2 but he chose not to do so. Accordingly, I find that not only was the evidence of PW2 uncontroverted but the conduct of the Appellant invited the inference that his evidence, had he testified, would have been adverse to his case as pleaded. 43. The court could have only one consistent set of evidence, that of the Respondent. The accident was caused by the Appellant; there was no evidence to the contrary...’’ 15. However, the fact of having uncontroverted evidence does not negate the burden of proving the existence of the facts on the part of the party making the allegations. In Equity Bank (K) Limited v Wambua E246 of 2023) & 2 others (Civil Appeal [2025] KEHC 2555 (KLR) (17 February 2025) (Judgment) the court held that: 26. The fact that a defence is held as mere allegations in no way lessens the burden on the 2plaintiff to prove her case. The court in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR the court stated: “I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only RULING ELC 417 OF 2017 7

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that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not. (See Kirugi and Another v Kabiya and Others [1983] e KLR).” 16. The applicant adduced evidence that shows that the suit land is registered in the name of the respondent. However, half of the entire acreage is held in trust for the applicant pursuant to request made to the succession court to hold the same as such since the applicant did not have a national identity card as captured in paragraph 7 of the summons for confirmation of gran dated 7th December 2022. The applicant also adduced evidence of a court order dated 24 th December 2025 barring the respondent from dealing with entire suit property as his own. When the area Assistant Chief appeared before this court, she also testified that the person, Mokami Nyamohanga, who is said to have sold the suit land to the applicant is a brother to the respondent. Further, that there was a dispute between the two brothers over the suit property. The applicant’s testimony was to the effect that the respondent is trying to disinherit his brother by taking away his rightfully inherited portion of land. 17. Moreover, I have carefully analysed annexture SNK 3 annexed to the supporting Affidavit of the instant application. It is a copy of a court Order was issued by the Senior Principal Magistrate in Kehancha MCELC No. E062 of 2025. It was an injunction issued RULING ELC 417 OF 2017 8

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barring the to respondent from entering, reentering, encroaching onto, alienating, trespassing onto, occupying, possessing or cultivating the half share of land parcel No. Bukira/Buhiringera/7 pending the hearing and determination of the suit. The suit is between Nyamohanga Mokami (as the plaintiff) and Peter Maroa Nyamohanga (as the Defendant). Therefore, for this court to permit the respondent herein to urge and maintain an application contrary to the said orders is to interfere with existing lawful orders on the suit land through the prayers of a subsequent application which is the one dated 8th January 2026. It would be an absurdity. It would be an indirect way of going around the Orders 24 th December 2026. The said application is aimed at demeaning the orders of the Senior Principal Magistrate Court in Kehancha hence an abuse of the process of this court. 18. The court also finds that the respondent having abused the trust that was created by the court by which he was registered as owner of 6.1 Ha in trust for his brother Mokami Nyamohanga, he does not have locus standi to bring the application dated 08th January 2026 over the part of the parcel of land that does not belong to him, that is to say, which he held in trust for the brother who is now back in the country and wishes to be given his share yet the Plaintiff clings to it for selfish interests, claiming the entire parcel of land as his. The facts deposed in the instant application being uncontroverted, and both the area Assistant Chief and the said Mokami Nyamohanga having testified over the ownership of the half of RULING ELC 417 OF 2017 9

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the suit land, that is, approximately 6.1 Ha, the instant application succeeds. The Application dated 08 th January 2026 is hereby struck out for being frivolous and an abuse of the process of the Court. 19. Given that the Respondent held a half of the said land in trust for the brother, he is hereby ordered to forthwith demarcate the half parcel of the land and hand over by registration the portion of approximately 6.1 Ha, which he held in trust for his brother to the said brother. 20. The upshot of the foregoing is that the applicant’s application succeeds. On the issue of costs, this court will exercise its discretion and award costs to the applicant who has succeeded in this application. 21. Orders accordingly Ruling Dated, Signed and Delivered virtually via the Teams Platform this 8th day of July 2026. HON. DR. IUR NYAGAKA, JUDGE In presence of, Md. Rhobi for Applicant online Plaintiff present in open Court. RULING ELC 417 OF 2017 10

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