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Court of AppealPartially AllowedCivil Appeal No. 41 of 2014· [2015] KECA 954 (KLR)

Peter Githinji & Another v. Julius Kiruma Kariuki & Others

Court of Appeal
24 February 2015
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
3,239 words in judgment
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The bottom line

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Kenya's Court of Appeal cancelled a land title ruling because fraud claims need strong proof and parties must be heard in person.

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.) allowed a first appeal against a High Court judgment (Makhandia, J., 18 June 2009) cancelling the 1st appellant's title to Loc. 8/Matharite/Kiaheho/698 and reverting it to the 1st respondent. The trial court had entered judgment on the basis of a consent order directing a Murang'a District Surveyor to fix the boundary and report, the report to form the basis of final submissions, without oral evidence. The Court of Appeal held that the 1st respondent's claim rested on fraud, which must be strictly proved - something more than a balance of probabilities. The surveyor's report showed only an unexplained 0.4-hectare discrepancy between ground measurements and registry records and attributed no fraud to any party; a provincial surveyor's letter showed prior records could not be traced. Cogent, orally tested evidence was therefore required. The Court also held that although a consent order has contractual effect and binds unless vitiated by fraud, collusion or misapprehension, the dispute could not justly be determined without oral evidence. It set aside the consent order to the extent it barred oral evidence, set aside the High Court judgment, and remitted the suit for retrial by viva voce evidence, leaving limitation, res judicata and locus issues to the trial court. Each party was directed to bear its own costs. The appeal succeeded only to the extent of the set-asides and remittal.

Key legal issues

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01

Standard of proof of fraud

Holding

The trial court erred: fraud was pleaded but not strictly proved; the surveyor's report alone could not establish fraud to the required standard.

Reasoning

The 1st respondent pleaded particulars of fraud. The surveyor's report merely showed an acreage discrepancy of 0.4 hectares between the ground measurement and the registry documents; it attributed no mistake or fraud to any party. Missing records meant cogent evidence of how the disputed parcel came into existence was required, testable through oral evidence.

p. 5
02

Effect of the consent order dispensing with oral evidence

Holding

The consent order was set aside to the extent it barred oral evidence, since the dispute could not justly be determined without oral testimony.

Reasoning

A consent order has contractual effect and binds unless obtained by fraud, collusion, or in misapprehension of material facts. Here, the issue of fraud required testing of testimony; the waiver of oral evidence prevented a just determination, justifying setting the consent order aside to that extent only.

p. 6
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Duty of the Court on a first appeal

Holding

The Court has a duty to re-evaluate the evidence and draw its own conclusions.

Reasoning

As a first appeal, the Court re-examines the record and evidence afresh, guided by Selle v Associated Motor Boat Co., before deciding whether the trial court's findings were proper.

p. 4

Legal principles established

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  • Allegations of fraud must be strictly proved; something more than a mere balance of probabilities is required.
  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside.
  • On a first appeal, the Court of Appeal has a duty to analyze and re-evaluate the evidence and draw its own conclusions.

Court orders

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  1. 1.Set aside the consent order issued on 2nd December, 2008, to the extent it restricts/bars the matter from going for oral evidence
  2. 2.Set aside the judgment of the High Court dated 18th June, 2009
  3. 3.Remit the suit for retrial and hearing at the High Court by viva voce evidence
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Government Proceedings ActSections 13A & 16

Cases cited (8)

  • Selle & Another v. Associated Motor Boat Co. Ltd.
    [1968] 123

    Duty of first appellate court to re-evaluate evidence and draw own conclusions

  • Rosemary Wanjiku Murithi –vs- George Maina Ndinwa
    Civil Appeal No. 9 of 2014

    Raising fraud in pleadings is not proof of fraud

  • Ratilal Gordhanbhai Patel –vs- Lalji Makanji
    (1957) E.A. 314

    Allegations of fraud must be strictly proved; more than balance of probabilities required

  • Flora Wasike –vs- Destimo Wamboko
    [1982 – 88) 1 KAR 625

    Consent judgment has contractual effect; set aside only on contract-setting-aside grounds

  • J. M. Mwakio –vs- Kenya Commercial Bank Limited
    Civil Appeal No. 28 of 1982 and 69 of 1983

    Cited within Wasike on setting aside consent orders

  • Purcell vs. F. C. Trigell Ltd
    (1970) 3 All ER 671

    Consent order set aside only on grounds justifying setting aside a contract

  • Brooke Bond Liebig (T) Limited –vs- Mallya
    [1975] E.A. 266

    Circumstances in which a consent judgment may be interfered with

  • Hirani –vs- Kassam
    (1952), 19 EACA 131

    Consent orders binding; cannot be varied unless fraud, collusion, or misapprehension of material facts

On appeal from
High Court of Kenya at Nyeri
H.C.C.C No. 64 of 2003
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (first appeal against High Court judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Peter Githinji & Another v. Julius Kiruma Kariuki & Others", Case Analysis (2015). Civil Appeal No. 41 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/954/eng@2015-02-24

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