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Court of AppealDismissedCivil Appeal No. 193 of 2010

C O Okere v Esther Nduta Kiiyukia & 2 others [2019] KECA 798 (KLR)

Court of Appeal of Kenya
22 March 2019
4,252 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed a landowner's appeal because he never proved the plot he was allotted was the same land he sued over.

What this practically means

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Executive summary

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The appellant, Dr. C. O. Okere, sued the City Council of Nairobi, Esther Muthoni and Esther Nduta Kiiyukia seeking a permanent injunction, a declaration that he owned Nairobi/Block 63/305 (originally Plot No. 281 Jamhuri Phase II), and general damages, alleging the Council fraudulently sold land allotted to him in 1992 to the 2nd respondent, who sold it to the 1st respondent. The High Court (Rawal, J.) dismissed the suit on 4th May 2007, finding no fraud or negligence proved, that the 1st respondent was a bona fide purchaser for value without notice, and that the appellant had not shown Plot No. 281 was the same as the suit property. On first appeal, the Court of Appeal (Waki, Musinga and Otieno-Odek, JJA) reassessed the evidence as it was entitled to do. It held the trial judge's reference to LR No. Nairobi/Block 63/281 was a typographical error for Plot No. 281. On identity, it held that a survey plan, Registry Index Map or approved sketch map is the best evidence of a parcel's location, and no such document was tendered; the Council's letter confirming the appellant as original allottee did not prove identity. On fraud, applying Vijay Morjaria, the court held fraud must be specifically pleaded and distinctly proved; the plaint pleaded only negligence, which was fatal. The 1st respondent, holding a certificate of title and a sale agreement, was an uncontroverted bona fide purchaser. The claimed refund was special damages that had to be specifically pleaded and proved, and no prayer or amount was pleaded; general damages could not be assessed absent established liability. The court distinguished Dickson Ndegwa Mbugua on the basis that identity of the plot was the decisive issue here. The appeal was dismissed with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial judge erred by referring to a non-existent parcel, LR No. Nairobi/Block 63/281
  2. 2.Whether Plot No. 281 Jamhuri Phase II is the same parcel as LR No. Nairobi/Block 63/305
  3. 3.Whether fraud was pleaded and proved against any of the respondents
  4. 4.Whether the 1st respondent was a bona fide purchaser for value without notice
  5. 5.Whether the trial court erred in failing to assess general damages or order a refund of monies paid by the appellant

Key legal issues

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01

Identity of the suit property - whether Plot No. 281 is the same as Nairobi/Block 63/305

Holding

The appellant failed to prove the two parcels are the same; a survey map or approved sketch map is the best evidence of location and none was tendered

Reasoning

The court examined the allotment letter of 10th February 1992 and the official search, noting differing plot sizes (0.02 vs 0.0186 hectares). The City Council letter confirming the appellant as original allottee did not prove location. Without a survey plan, Registry Index Map or approved sketch map, the identity of the plots was not established, so the trial court's finding stood.

p. 4
02

Pleading and proof of fraud

Holding

Fraud was not pleaded in the amended plaint (only particulars of negligence) and therefore the fraud claim failed

Reasoning

Relying on Vijay Morjaria, the court held fraud must be specifically pleaded and distinctly proved to a standard above balance of probabilities. The plaint contained only particulars of negligence against the 1st and 2nd respondents and none against the 3rd. Failure to plead fraud was fatal to the claim.

p. 4
03

Bona fide purchaser for value without notice

Holding

The 1st respondent proved she was a bona fide purchaser for value and the appellant led no evidence to controvert this

Reasoning

The 1st respondent tendered her certificate of title and sale agreement with the 2nd respondent and denied knowledge of the appellant's interest. Applying the Katende elements, the appellant adduced no evidence of the 1st respondent's knowledge of his interest or of any fraud, so her title was unimpeached.

p. 5
04

Refund and general damages

Holding

No refund or damages could be awarded because neither was specifically pleaded or prayed for, and liability was not established

Reasoning

A claim for refund is a claim in special damages which must be expressly pleaded and specifically proved. The amended plaint contained no prayer for refund nor any amount indicated. Following Caltex Oil, damages cannot be plucked from the air. Further, damages are assessed only where liability is established, and the appeal failed on liability.

p. 5

Legal principles established

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  • Fraud must be specifically pleaded with particulars on the face of the pleading and distinctly proved; it cannot be inferred from the facts
  • A survey map, Registry Index Map or duly approved sketch map is the best evidence of the location of a parcel of land; letters between parties do not prove location
  • Special damages, including a claim for refund, must be specifically pleaded and specifically proved
  • A court cannot award damages or a refund not specifically pleaded and prayed for in the plaint
  • Elements a purchaser must prove to rely on the bona fide purchaser doctrine

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
High Court Civil Case No. 2 of 2004
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute (not expressly cited in the judgment)

Relief refused

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Declaration of ownership of Nairobi/Block 63/305

No survey map or approved sketch plan proved Plot No. 281 was the same as the suit property

p. 4

Permanent injunction against the respondents

Appeal failed on liability; appellant's allotment could not defeat the registered proprietorship of the 1st and 2nd respondents

p. 5

Refund of monies paid to the 3rd respondent

Refund is a claim for special damages that must be pleaded and specifically proved; no such prayer or amount was pleaded

p. 5

General damages

Liability was not established, so damages could not be assessed

p. 5

Costs

Each party is to bear its own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In totality, for the various reasons stated above, we find that this appeal has no merit and is hereby dismissed. Each party is to bear its own costs.
p. 5Disposition
It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading.
p. 4Pleading fraud
A survey plan or duly authorized sketch map is the best evidence that shows the location of a given parcel of land.
p. 4Proof of land location
it is now trite law that special damages must not only be pleaded but must also be specifically proved.
p. 5Special damages
A trial court cannot grant an order for refund of an amount that has not been specifically pleaded nor prayed for in the Plaint.
p. 5Relief must be pleaded
Being a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions.
p. 3Duty of first appellate court

Issues in the judgment

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minor

The judgment states 'neither negligence nor fraud was not proved' in summarising the 1st respondent's submissions - a double negative that appears to be a drafting error

minor

The judgment refers to the 'Jamuhuri Estate allocations' with a different spelling ('Jamuhuri') from elsewhere ('Jamhuri')

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "C O Okere v Esther Nduta Kiiyukia & 2 others [2019] KECA 798 (KLR)", Case Analysis (2019). Civil Appeal No. 193 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/798/eng@2019-03-22

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