Joseph Kipkoech Chemor v Kimaiyo Chemor & another [2019] KECA 525 (KLR)
The bottom line
#Kenya's Court of Appeal cancelled a land ruling because fraud claims weren't properly proven, confirming that whoever alleges fraud must prove it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether fraud was proved against the appellant to the standard required in law
- 2.Whether the trial court properly evaluated the evidence on record
- 3.Which statute governs the impeachment of the title - the repealed Registered Land Act or the Land Registration Act
- 4.Whether the appeal against the 1st respondent abated on his death without substitution
Key legal issues
#Governing statute for impeaching a pre-2012 registration
The RLA, not the LRA, governs the dispute because the registration occurred in 1998 and the suit was filed in 2009; the LRA has no retrospective application.
The RLA was repealed on 2nd May 2012 when the LRA commenced, but the property was registered under the RLA in 1998 and the suit filed on 19th March 2009. Transitional provisions - section 162(1) of the Land Act, section 106(3)(a) of the LRA and section 23(3) of the Interpretation and General Provisions Act - preserve rights accrued under repealed law. The trial court erred in applying both statutes; the RLA is the relevant and applicable law.
Proof of fraud
Fraud was not proved; the particulars pleaded were not established to the heightened standard required, and the trial court wrongly shifted the burden of proof to the appellant.
Fraud must be pleaded with particularity (Order 2 Rule 10 CPR) and proved by the party alleging it to a standard above balance of probabilities. The star witness admitted the register showing plot allocations was not produced; the land buying company and Land Registrar were never joined to prove fraud in registration. The trial court's findings rested on conjecture and on shifting the burden to the appellant, who had no burden to disprove the allegation.
Protection of registered title under the RLA
Under sections 27, 28 and 143 of the RLA, a registered proprietor's title is insulated from challenge except through the mechanisms in the Act, and rectification for fraud is unavailable for a first registration.
Section 27 vests absolute ownership on registration; section 28 protects the proprietor's rights from defeat except as provided in the Act. Section 143 permits rectification for fraud or mistake save for a first registration. The trial court found the appellant was the second registered owner after the Government of Kenya; that finding does not detract from the principles applicable to proving fraud even where registration is not the first one.
First appellate court's duty on re-evaluation of evidence
The appeal was considered by way of retrial, with due deference to trial court findings of fact, but interference was warranted because the findings were based on no evidence and wrong principles.
Relying on Rule 29(1)(a) of the Court of Appeal Rules, the court re-evaluated the evidence as a first appellate court. Citing Jabane vs Olenja and Mwangi vs Wambugu, it held it was entitled to depart from the trial court's findings because they were based on conjecture, ignored material evidence (the unproduced registers, receipts of payment), and dismissed the appellant's rebuttal evidence without basis.
Legal principles established
#- Fraud must be specifically pleaded with particulars and strictly proved to a standard above a balance of probabilities but not beyond reasonable doubt; it cannot be inferred from the facts.
- The party alleging fraud bears the burden of proving it; a trial court errs by shifting that burden to the party denying the fraud.
- The Land Registration Act, 2012 has no retrospectivity; rights acquired under the repealed Registered Land Act continue to be governed by the RLA by virtue of transitional provisions.
- An appellate court may interfere with findings of fact where they are based on no evidence or where the trial court acted on wrong principles.
Court orders
#- 1.The judgment and orders of the Environment and Land Court made on 25th September, 2014 are set aside
- 2.An order is substituted dismissing the suit filed by the respondents
- 3.The costs of the appeal as well as the costs of the lower court shall be borne by the 2nd respondent, Barnaba Chumo Chemor, and not the estate of the deceased
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Eldoret
- ELC Case No. 499 of 2012
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules (Rule 29(1)(a) invoked for retrial evaluation); appeal as of right against the ELC judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowerable to leave fraud to be inferred from the facts.
With respect, the LRA had no retrospectivity and therefore ought not to have been applied despite being the current law at the time of judgment.
We think the biggest error of law made by the trial court was to shift the burden of proving fraud from the respondents to the appellant who had no burden to disprove the allegation
On those findings, we must hold that this appeal is meritorious. We allow it with the result that the judgment and orders of the Environment and Land Court made on 25th September, 2014 are hereby set aside.
Issues in the judgment
#The judgment records two different dates for the appellant's registration - 9th November 1998 in the defence narrative and 19th November 1998 in the court's recital of common ground.
Quotation of Vijay Morjaria contains a typographical error ('allowerable') in the transcribed quote.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Joseph Kipkoech Chemor v Kimaiyo Chemor & another [2019] KECA 525 (KLR)", Case Analysis (2019). Civil Appeal No. 111 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/525/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.