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Court of AppealDismissedCivil Appeal No. 9 of 2014· [2014] KECA 624 (KLR)

Rosemary Wanjiku Murithi v George Maina Ndinwa [2014] KECA 624 (KLR)

Court of Appeal of Kenya
13 May 2014
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
2,335 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that alleging fraud is not enough; land buyers must actually prove it, and second appeals only revisit questions of law, not facts.

What this practically means

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Executive summary

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This is a second appeal before the Court of Appeal at Nyeri (Visram, Koome and Otieno-Odek, JJ.A.) arising from a trespass dispute over Land Parcel No. INOI/NDIMI/1939. The respondent, the registered proprietor, sued the appellant in the Senior Principal Magistrate's Court at Embu, alleging she entered the land, cut coffee stems, and began constructing without consent. The trial magistrate found the appellant, who claimed she had bought land from Edward Mwai Ndinwa and alleged fraud and a doctored mutation form, to be a trespasser. Karanja, J. dismissed the first appeal, holding the appellant had no claim to Parcel 1939 and had trespassed. On second appeal, the appellant argued that fraud had been raised, that the trial court lacked jurisdiction given the Land Dispute Tribunal Act, that the courts relied on an altered mutation form, and that Section 6 of the Land Control Act was not complied with. The Court held that a second appeal is confined to matters of law; that merely pleading fraud does not prove it, and the concurrent findings that no forgery affected the parcels would not be disturbed; that a fraud-based claim lies outside the Land Dispute Tribunal's jurisdiction; and that the land control consent ground was abandoned. The Court was satisfied the appellant purchased Parcel 1937 and trespassed on Parcel 1939. The appeal was dismissed with no order as to costs, affirming the decision of the High Court.

Key legal issues

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01

Whether the second appeal disclosed a point of law on the alleged fraud

Holding

Mere pleading of fraud is not proof of fraud; the two courts below concurrent-found that fraud was not proved and no error of law was demonstrated

Reasoning

The Court held that proof of fraud is a question of fact, and simply raising it in a defence and counterclaim does not discharge the burden of proving it. Both courts below found no forgery: the allegedly doctored mutation form page did not change the position of Parcels 1937 and 1939, Plot 'E' remaining the respondent's. As the Judge had properly re-evaluated the evidence, the Court would not interfere on a second appeal.

p. 3
02

Jurisdiction of the trial court over the fraud-based counterclaim

Holding

A claim based on fraud lies outside the jurisdiction of the Land Dispute Tribunal, so the trial court properly entertained the counterclaim grounded on fraud

Reasoning

The appellant had argued that trespass should have been litigated under Section 3 of the Land Dispute Tribunal Act. The Court held that because the appellant's own counterclaim was grounded in fraud, a matter outside the Tribunal's jurisdiction, the trial court properly had jurisdiction over it. The land control consent issue was deemed abandoned as not canvassed on appeal.

p. 4
03

Identity of the parcel purchased by the appellant

Holding

The appellant purchased the portion of Edward Mwai Ndinwa, being Land Parcel No. INOI/NDIMI/1937; her entry onto Parcel 1939 constituted trespass

Reasoning

The sale agreement was for 0.114 ha out of Parcel 1245, being the seller Edward Mwai Ndinwa's portion. Parcel 1937 was registered in the appellant's name on 16th July 2003, before she signed the sale agreement, and the Judge found it dishonest to deny knowledge of what she was buying. The Court concurred that the appellant knowingly acquired Parcel 1937 and trespassed on the respondent's Parcel 1939.

p. 4

Legal principles established

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  • On a second appeal the Court of Appeal confines itself to matters of law and will not interfere with concurrent findings of fact unless no evidence supports them or matters were considered that should not have been, or omitted that should have been considered
  • A claim based on fraud is outside the jurisdiction of the Land Dispute Tribunal

Court orders

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  1. 1.Appeal dismissed with no order as to costs

Authorities

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Legislation

  • Land Dispute Tribunal ActSection 3
  • Land Control ActSection 6

Cases cited (5)

  • Jabane – vs- Olenja
    [1986] KLR 661, 664
  • Ephantus Mwangi -vs- Duncan Mwangi Wambugu
    (1982-88) 1 KAR 278
  • Mwanasokoni vs. Kenya Bus Services
    (1982-88) 1 KAR 870
  • Kenya Breweries Limited -vs- Godfrey Odoyo
    Civil Appeal No. 127 of 2007
  • Giella – v- Cassman Brown
On appeal from
High Court of Kenya at Embu
H.C.C.A. No. 76 of 2006
Jurisdiction invoked
Second appeal to the Court of Appeal under the appellate jurisdiction of the Court of Appeal (matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Rosemary Wanjiku Murithi v George Maina Ndinwa [2014] KECA 624 (KLR)", Case Analysis (2014). Civil Appeal No. 9 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/624/eng@2014-05-13

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