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Court of AppealDismissedCivil Appeal No 138 of 2018

Demutila Nanyama Pururmu v Salim Mohamed Salim [2021]] eKLR [2021] KECA 595 (KLR)

Court of Appeal
19 May 2021
2,556 words in judgment
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The bottom line

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The Court of Appeal dismissed a landowner's fraud claim, confirming that allegations of fraud in Kenya must be specifically pleaded and proved with strong, concrete evidence.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal (Ouko (P), Nambuye and Karanja, JJ.A) against the judgment of S.K. Mukunya J of the Environment and Land Court at Bungoma delivered on 29th November 2016 in ELC No. 52 of 2012, dismissing the appellant's claim that the respondent had fraudulently caused land parcel E. BUKUSU/SOUTH KANDUYI/381 to be transferred to himself by exploiting her illiteracy. The appellant sought cancellation of the respondent's registration and reinstatement of her ownership. The trial court had found that she voluntarily sold the whole land, received Kshs. 70,000 plus a further 30,000, applied for and obtained Land Control Board consent, and executed the transfer before an advocate. Before the Court of Appeal, the appellant raised five grounds attacking the findings on consent, fraud, the sale, the standard of proof, and the Judge's assessment of the evidence. The Court, exercising its duty under rule 29(1)(a) to re-evaluate the evidence afresh, identified four issues and held that the appellant bore the burden under sections 107, 109 and 112 of the Evidence Act of proving that the thumb prints on the transfer documents were not hers. Although adjournments and an order releasing the original documents for examination had been granted, counsel abandoned that course without explanation. Applying the settled principles that fraud must be specifically pleaded and distinctly proved to a standard higher than a balance of probabilities, the Court found her lone, uncorroborated testimony insufficient. The Court found no fault with the learned Judge, dismissed the appeal with costs to the respondent, thereby affirming the decision below.

Key legal issues

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01

Whether the appellant proved fraud in the transfer of the suit property

Holding

The burden lay on the appellant to prove that the thumb prints on the transfer documents were not hers; she was given adjournments and court orders to have the documents examined but abandoned the exercise, so fraud was not proved.

Reasoning

Sections 107, 109 and 112 of the Evidence Act place the burden of proving a fact on the party asserting it, especially where the fact is specially within that party's knowledge. The appellant alleged forgery of the transfer documents, sought adjournments and an order for release of the originals to a document examiner, but never presented the examiner's report or rebuttal evidence. Fraud must be distinctly proved to a standard higher than balance of probabilities; her bare denials and uncorroborated testimony could not discharge that burden.

p. 3
02

Whether the trial Judge misdirected himself in concluding that the Land Control Board consent was granted and that a sale occurred

Holding

No misdirection was established; the certified documents bore official signatures and stamps, and the respondent's account of the sale and payment of Kshs. 70,000 plus 30,000 was unrebutted.

Reasoning

The Court re-evaluated the exhibits, noting the documents bore signatures and official rubber stamps of government officers and were certified copies as required by law. In absence of credible evidence to the contrary, the trial court's findings that the appellant applied for consent, received the purchase price in the presence of witnesses, and executed the transfer before an advocate were sound. The absence of a written sale agreement did not defeat the sale where payment and execution were proved and unrebutted.

p. 3

Legal principles established

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  • Fraud must be specifically pleaded with particulars on the face of the pleading, and must be distinctly alleged and distinctly proved; it cannot be inferred from the facts.
  • Allegations of fraud attract a standard of proof higher than a balance of probabilities, and the burden lies on the party alleging fraud or forgery.
  • On a first appeal, the Court of Appeal must re-evaluate, re-assess and re-analyse the evidence on the record and reach its own conclusions, giving reasons either way.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
On appeal from
Environment and Land Court at Bungoma
E.L.C. No. 52 of 2012
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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Later judgments citing this (1)

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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, "Demutila Nanyama Pururmu v Salim Mohamed Salim [2021]] eKLR [2021] KECA 595 (KLR)", Case Analysis (2021). Civil Appeal No 138 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/595/eng@2021-05-19

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