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Court of AppealDismissedCivil Appeal No. 342 of 2010· [2013] KECA 423 (KLR)

Kamau v Nandi (Civil Appeal 342 of 2010) [2013] KECA 423 (KLR)

Court of Appeal of Kenya
25 July 2013
AVAlnashir VisramMartha Karambu KoomeMartha KoomeOTOtieno-Odek
3,843 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that land obtained through fraud can have its title cancelled, even if the fraudulent owner has occupied the land for years.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Visram, Koome & Otieno-Odek, JJ.A.) dismissed an appeal against the judgment of Sergon, J. in H.C.C.C No. 42 of 2009, which had cancelled the registration of Moses Kamau O. Mwangi (deceased) as proprietor of LR No. NGINDA/SAMAR/BLOCK 2/315 and directed reinstatement of the respondent, Humphrey Mbaka Nandi, as registered proprietor. The appellant, the deceased's personal representative, challenged the trial court on the framing of issues, failure to make a specific forgery finding, absence of handwriting expert evidence, the appellant's de facto possession since 1998, limitation, and the alleged shifting of the burden of proof. The Court, as a first appellate court, re-evaluated the evidence and affirmed the trial court's finding that fraud was strictly proved: the discrepancies in the register and title deed dates, the undated land control consent application, and the attesting advocate's evidence that the signatures differed from the respondent's identity card established that the deceased did not genuinely obtain title. The Court held that de facto possession is no defence where the root of title is in issue; that the twelve-year limitation period for recovery of land had not lapsed; and that under Section 112 of the Evidence Act the burden lay on the appellant to explain how the deceased lawfully acquired title. The appeal was dismissed with costs.

Key legal issues

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01

Framing of the sole issue for determination

Holding

The trial judge did not err in framing the single issue of whether the deceased acquired title by fraudulent means, since the whole suit depended on proof of fraud

Reasoning

The relief sought in the plaint was cancellation of title, which could only be granted if fraud was proved or disproved. From the pleadings, the success or failure of the entire suit depended on whether the deceased's fraud was proved, so the single issue framed captured the case correctly.

p. 3
02

Proof of fraud and forgery

Holding

Fraud was strictly proved; the finding that the deceased did not genuinely obtain title was a finding of fraud, and the discrepancies in documents supported it

Reasoning

Applying R.G. Patel v Lalji Makani, fraud must be strictly proved. The Court re-evaluated the testimony of the respondent, the attesting advocate, and the Land Registrar. Discrepancies in dates of title issuance, an undated land control consent application, and the advocate's evidence that the signatures differed established the fraudulent acquisition of title.

p. 4
03

Handwriting expert evidence and burden of proof

Holding

The evidential burden lay on the appellant to prove the signatures belonged to the respondent and, if necessary, to call an expert; she did not discharge it

Reasoning

Sections 107 and 109 of the Evidence Act place the burden on the party asserting a fact, and Section 108 places it on the party who would fail if no evidence were given. The respondent gave direct evidence he never signed the forms; if expert evidence was necessary, the appellant had to call it.

p. 5
04

De facto possession as a defence

Holding

Possession is not title; where the root of title is in issue, de facto possession is not a defence to an action to recover land

Reasoning

While possession is nine-tenths ownership, possession is not title nor proof of ownership. The presumption favours the person with title being in possession, and a person with a superior title can challenge the title of one in de facto possession. The issue being the competing roots of title, possession cannot override a fraudulently acquired registration.

p. 5
05

Limitation

Holding

The claim, being one for recovery of land, was governed by the twelve-year limitation period and was therefore filed in time; fraud cannot found a cause of action for limitation purposes

Reasoning

Under Section 7 as read with Section 9 of the Limitation of Actions Act, recovery of land carries a twelve-year limitation period running from 1998, expiring in 2010; the suit filed on 5th March 2009 was in time. The appellant failed to specify the tort alleged; if trespass, trespass continues while possession persists, so limitation had not run.

p. 6
06

Shifting of the burden of proof

Holding

Section 112 of the Evidence Act properly placed the burden on the appellant, as personal representative, to explain how the deceased lawfully obtained title

Reasoning

The lawful steps by which the deceased came to be registered as proprietor were facts especially within the knowledge of the deceased and, by extension, of the appellant as his personal representative. Section 116 (ownership presumed from possession) did not displace Section 112 in these circumstances, so the trial judge did not err.

p. 6

Legal principles established

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  • Registration of a person as proprietor of land (other than a first registration) can be cancelled on proof of fraud
  • Allegations of fraud must be strictly proved; something more than a mere balance of probabilities is required
  • Where the root of title and the legality of the acquisition of title are in issue, de facto possession of the land is not a defence
  • A person who enters and expels another in possession of land does not thereby acquire possession enabling him to maintain possession and acquire title, unless the expelled person submits to the expulsion by delaying to re-expel within a reasonable time
  • Fraud cannot be the basis of a cause of action for limitation purposes; a party cannot claim the limitation period commenced when the fraud was committed
  • Where a fact is especially within the knowledge of a party (such as the lawful steps by which a deceased acquired title), the burden of proving or disproving that fact lies on that party under Section 112 of the Evidence Act
  • A suit for recovery of land has a limitation period of twelve years under Section 7 as read with Section 9 of the Limitation of Actions Act
  • On a first appeal, the Court has a duty to analyze and re-assess the evidence on record and reach its own conclusions

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent
  3. 3.The judgment of the High Court cancelling the registration of Moses Kamau O. Mwangi (deceased) and directing reinstatement of the respondent as proprietor of LR No. NGINDA/SAMAR/BLOCK 2/315 stands

Authorities

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Legislation

  • Evidence ActSection 107
  • Evidence ActSection 108
  • Evidence ActSection 109
  • Evidence ActSection 112
  • Evidence ActSection 116
  • Limitation of Actions Act, Cap 22, Laws of KenyaSection 4(2)
  • Limitation of Actions Act, Cap 22, Laws of KenyaSection 7
  • Limitation of Actions Act, Cap 22, Laws of KenyaSection 9

Cases cited (8)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
  • Jabane - v- Olenja
    [1986] KLR 664
  • Ephantus Mwangi v Duncan Mwangi Wambugu
    (1982-88) 1 KAR 278
  • Mwanasokoni vs. Kenya Bus Services
    (1982-88) 1 KAR 870
  • R. G. Patel vs. Lalji Makani
    (1957) E.A. 314
  • Mutsonga vs. Nyati
    (1984) KLR 425
  • Canvey Island Commissioners - v- Preedy
    {1922} 1 Ch. 179
On appeal from
High Court of Kenya at Nyeri
H.C.C.C No. 42 of 2009
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate jurisdiction of the Court (the judgment does not cite a specific provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (20)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kamau v Nandi (Civil Appeal 342 of 2010) [2013] KECA 423 (KLR)", Case Analysis (2013). Civil Appeal No. 342 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/423/eng@2013-07-25

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