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Court of AppealDismissedCourt of Appeal Civil Appeal (Nairobi)· [2017] KECA 156 (KLR)

Getao v Mokare & 4 others (Civil Appeal 361 of 2014) [2017] KECA 156 (KLR)

Court of Appeal of Kenya
1 December 2017
AMAsike MakhandiaDMD. K. MusingaSKS. Gatembu Kairu
7,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that land disputes fail unless fraud and constitutional violations are clearly pleaded and backed by solid evidence from the start.

What this practically means

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Executive summary

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This Court of Appeal bench of Makhandia, Musinga and Gatembu Kairu, JJA dismissed an appeal against a judgment of the Environment and Land Court (Mutungi, J.) of 25 September 2014, which had ordered the appellant to vacate and deliver vacant possession of L.R Kajiado/Kaputiei-South/2241 (now sub-divided into parcels 2625 and 2626) to the 1st respondent, failing eviction. The dispute arose from the dissolution and sub-division of Nkama Group Ranch among 519 members, in which the appellant's family received an alternative parcel (the 'allocated land') rather than the land their late father had occupied. The appellant alleged violations of Articles 27, 40, 47 and 50, claiming fraud, legitimate expectation and discrimination. The Court affirmed the trial court on every ground: fraud had to be specifically pleaded and strictly proved to a standard above the balance of probabilities, and Article 159(d) does not permit litigants to ignore pleading and evidentiary rules; no express, clear and unambiguous promise by a public authority gave rise to a legitimate expectation that members would retain occupied parcels; the discrimination claim was unsupported by material facts or comparatives and was raised belatedly through a supplementary affidavit; and the valuation report was rightly discounted as a novel issue that would have allowed the petitioner to amend his petition through the back door. The Court declined to lay down criteria for group ranch sub-division, holding this a matter for the members, noted the appellant's 15-year silence and his retention of the allocated land, and confirmed his right to property was substantially upheld given near-equal acreage. Costs were awarded against the appellant.

Key legal issues

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01

Pleading and proof of fraud and the effect of Article 159(d)

Holding

The trial court correctly declined to entertain the fraud claim absent particulars; the saving provisions do not override pleading and evidentiary rules

Reasoning

Fraud allegations are serious and may carry penal consequences, so particulars must be pleaded and the fraud strictly proved to a standard above the balance of probabilities. Article 159(d) elevates substantive justice but does not permit litigants to ignore the rules of evidence and procedure. Even on the merits, the appellant's case was devoid of evidence of fraud.

p. 9
02

Legitimate expectation in group ranch sub-division

Holding

No legitimate expectation arose; the consent letter creating the sub-division process contained no promise that members would retain occupied land

Reasoning

Applying the CCK v Royal Media Services criteria, there was no express, clear and unambiguous promise by a public authority that members would be allocated the parcels they occupied. Relocation of some members was inherent in sub-division, burial sites were not an allocation criterion, and extending the expectation to all members would be absurd and impracticable.

p. 10
03

Alleged discrimination under Article 27

Holding

The discrimination claim failed; no material facts, comparatives or evidence of discriminatory treatment were pleaded or proved

Reasoning

The appellant made bare assertions, raising tribal discrimination for the first time in a supplementary affidavit after pleadings had closed, denying respondents an opportunity to rebut. Equal treatment requires proof of differentiation on arbitrary grounds listed in Article 27(4), which was not established.

p. 10
04

Valuation report introduced by supplementary affidavit

Holding

The Judge acted judiciously in discounting the report; admitting it would have allowed the appellant to amend the petition through the back door

Reasoning

The valuation report and the tribal discrimination claim were novel issues introduced after pleadings closed, giving respondents no opportunity to respond. Parties are bound by their pleadings, and a supplementary affidavit cannot be used to smuggle in new matters.

p. 12
05

Compliance with the Anarita Karimi Njeru test for constitutional petitions

Holding

The appellant failed to demonstrate violations of Articles 27, 40, 47 and 50 with the required precision

Reasoning

A constitutional petitioner must set out with reasonable precision the complaint, the provisions infringed and the manner of infringement. Here the right to property was in substance upheld since the allocated land was nearly identical in acreage, and no particularised violation of Articles 47 and 50 was shown.

p. 12

Legal principles established

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  • Allegations of fraud must be specifically pleaded with particulars and proved on a standard higher than the balance of probabilities; Article 159(d) cannot excuse a party from the rules of evidence and pleading
  • Where constitutional violations are alleged, the petitioner must set out with reasonable precision the provision infringed and the manner of infringement
  • Parties are bound by their pleadings; new issues introduced via a supplementary affidavit after pleadings closed, denying opponents a chance to respond, are inadmissible
  • A first appellate court must re-appraise the evidence and draw its own inferences of fact
  • The criteria for sub-division of a group ranch upon dissolution are a matter for the members of the group ranch, not for the courts

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 27(4)
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 159(d)
  • Court of Appeal RulesRule 29(1)
  • Evidence ActSections 107 and 108
  • Land (Group Representatives) Act (Cap. 287) (repealed)Third Schedule
  • Registered Land Act (Cap. 300) (repealed)Sections 28 and 30(g)
  • Environment and Land Court Act, 2011Section 19(1)
  • Land Adjudication Act (repealed)Objection procedure (60 days)
  • Land (Group Representatives) Act, 1968 (repealed)
  • Civil Procedure Rules
  • Constitution of Kenya (Protection of Fundamental Right and Freedoms of the Individual Practice and Procedure Rules) (Mutunga Rules), 2013

Cases cited (12)

  • Lemanken Aramat v Harun Meitamei Lempaka & 2 others
    (2014) eKLR
  • Moindi Zailpine & 39 Others v Karatina University & Another
    (2015) eKLR
  • Bruce Joseph Bockle v Coquero Ltd
    (2014) eKLR
  • Kinyanjui Kamau v George Kamau Njoroge
    (2015) eKLR
  • Emfil Ltd v Registrar of Titles Mombasa & 2 Ors
    (2014) eKLR
  • Communication Commission of Kenya v Royal Media Services Ltd & 5 Others
    (2014) eKLR
  • Rosemary Wanjiku Murithi v George Maina Ndinwa
    (2014) eKLR
  • Meme v Republic
    [2004] 1 EA 124; (2004) eKLR 637
  • G.K Macharia & Another v Lucy N. Mungai
    (1995) eKLR
  • Selle v Associated Motor Limited Company
    [1968] EA 123
  • Anarita Karimi Njeru v Attorney General
    [1979] KLR 54
  • Mumo Matemu v Trusted Society of Human Rights Alliance and Others
    [2013] eKLR
On appeal from
Environment and Land Court
Constitutional petition (consolidated with Machakos HCCC No. 278 of 2012)
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules (rule 29(1)), re-appraising evidence from the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Getao v Mokare & 4 others (Civil Appeal 361 of 2014) [2017] KECA 156 (KLR)", Case Analysis (2017). Court of Appeal Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/156/eng@2017-12-01

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