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Court of AppealDismissedFirst appeal from Kakamega ELC Cause No. 15 of 2013· [2021] KECA 241 (KLR)

Kaitano Ashiono Embali Lukutsa v Sebenzia Achitsa Amuti (suing As The Personal Representative of The Estate of Abraham Mukanzi Alias Ibrahim Mukanzi)

Court of Appeal of Kenya
3 December 2021
6,317 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 cancelled a land title obtained through fraud, confirming that a certificate of title will not protect someone whose acquisition was tainted or irregular.

What this practically means

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Executive summary

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This is a first appeal in which Kaitano Ashiono Embali Lukutsa challenged the judgment of N. A. Matheka, J. of the Environment and Land Court at Kakamega delivered on 24th October 2018, which cancelled his title to LR No. Idakho/Shivagala/2542, a subdivision of land originally registered in the name of the respondent's deceased father, ordered reversion of the title to the deceased's name for succession purposes, and directed the appellant's eviction. The respondent had pleaded fraud, illegality, irregularity and unprocedurality in the subdivision and transfer, pointing to a wrong passport photograph on the transfer form, a discrepancy between Kshs.300,000 in the sale agreements and Kshs.50,000 in the transfer form, an unlicensed surveyor, and the deceased's condition as a bedridden illiterate who could only thumbprint. A coram of Nambuye, Karanja and ole Kantai, JA, in a single joint judgment, restated the duty of a first appeal court under Rule 29(1)(a) of the Court of Appeal Rules and Selle v Associated Motor Boat Company Ltd, framed five issues, and answered each against the appellant. The Court held that the burden of proof in civil litigation is two-pronged and shifts; once the respondent proved the deceased's incapacity and illiteracy, the burden shifted to the appellant to prove regularity, which he failed to discharge. Adopting the Patel v Lalji Makanji and Ndolo thresholds, the Court found fraud proved to the required standard, held the appellant was not a bona fide purchaser, and affirmed the vitiation and cancellation of his title under sections 24(a), 26(1) and 80 of the Land Registration Act. The Court declined to entertain the appellant's attack on the respondent's locus standi as it had not been raised before the trial court, and refused to consider documents annexed to submissions. The appeal was dismissed on 3rd December 2021.

Key legal issues

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01

Whether the trial Judge misapprehended the facts

Holding

No misapprehension or misdirection of the facts; the Judge properly appreciated and considered the contested subdivision and transfer.

Reasoning

The Court reappraised the record, noting the discrepancy between the sale agreements (Kshs.300,000) and the transfer form (Kshs.50,000), the wrong photograph on the transfer form, and the surveyor's failure to prove licensure or follow up the CID report. These findings aligned with the trial Judge's analysis, so the complaint of misapprehension was rejected.

p. 6
02

Whether the contested property was legally and procedurally acquired by the appellant

Holding

The appellant failed to discharge the burden shifted to him; the entire acquisition process was tainted with fraud, illegality, irregularity and unprocedurality.

Reasoning

The respondent proved the deceased was bedridden and illiterate and could only thumbprint. The burden then shifted to the appellant to disprove the allegations, which he failed to do, offering no explanation for the discrepancies in the documents or the failure to summon the alleged son or follow up the CID investigations. The inference drawn was that the transaction was a product of a corrupt scheme.

p. 7
03

Whether the appellant qualified as a bona fide purchaser for value without notice

Holding

He did not; the ingredients of good faith, absence of knowledge of fraud and non-participation in fraud were not satisfied.

Reasoning

Applying the Lawrence Mukiri ingredients, the Court held that although the appellant held a certificate of title, the purchase was not in good faith; the fingerprints and signatures on the sale agreements were never proved to be the deceased's; the consideration discrepancies were unexplained; and the appellant's hands were tainted with irregularity, illegality and fraud.

p. 10
04

Whether the trial Judge's reliance on documents annexed to submissions vitiated the judgment

Holding

The complaint failed because the record showed the impugned judgment did not rely on those documents.

Reasoning

The Court revisited the record and found that although some documents were annexed to the respondent's submissions, nowhere in the judgment was there any indication that they were taken into consideration or formed the basis of the conclusions reached.

p. 11

Legal principles established

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  • On a first appeal, the Court has power to reappraise the evidence and draw its own inferences of fact, while making allowance for not having seen or heard the witnesses.
  • The burden of proof in civil litigation is not fixed; once the party asserting fraud or illegality discharges the initial burden, it shifts to the other party to disprove the assertions.
  • The standard of proof of fraud is slightly above a balance of probabilities but not as high as beyond reasonable doubt, and fraud must be specifically pleaded and distinctly proved.
  • A registered title may be vitiated and the register rectified where the registration was obtained by fraud, misrepresentation, illegality, unprocedurality or corrupt scheme, and no such tainted title can be passed to a third party.
  • A person claiming to be a bona fide purchaser for value without notice must prove good faith purchase, absence of knowledge of fraud, vendor's apparent valid title, and non-participation in fraud.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The trial Judge's judgment cancelling the appellant's title to LR No. Idakho/Shivagala/2542, ordering reversion of the title to the deceased's name, and ordering the appellant's eviction stands affirmed
On appeal from
Environment and Land Court at Kakamega
Cause No. 15 of 2013
Jurisdiction invoked
First appeal under Rule 29(1)(a) of the Court of Appeal Rules

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, "Kaitano Ashiono Embali Lukutsa v Sebenzia Achitsa Amuti (suing As The Personal Representative of The Estate of Abraham Mukanzi Alias Ibrahim Mukanzi)", Case Analysis (2021). First appeal from Kakamega ELC Cause No. 15 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/241/eng@2021-12-03

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