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ELCAllowedNotice of motion dated 18th February 2016 in suit filed by plaint dated 21st October 2014 (Kisumu ELC)· [2016] KEELC 408 (KLR)

Fredrick Omollo Ochang (Suing as legal representative and administrator of the Estate of Patrick Onyango Ochang) v Mary Auma Kasera & 3 others [2016] KEELC 408 (KLR)

Environment and Land Court
26 October 2016
1,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land defendant's fraud conviction in criminal court meant her civil defence was struck out because there was nothing left to genuinely argue.

What this practically means

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Executive summary

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The Plaintiff, Fredrick Omollo Ochang, administrator of the estate of Patrick Onyango Ochang (deceased), moved the court by notice of motion dated 18th February 2016 seeking to strike out the statement of defence of the 1st Defendant, Mary Auma Kasera, on the ground that she had been convicted in Kisumu CM Criminal Case No.342 of 2010 for offences under Sections 347(a), 320 and 357(b) of the Penal Code relating to the suit land, Kisumu/Kogony/2788. The 1st Defendant opposed through a replying affidavit. The court framed three issues: whether the defence raised triable issues, whether it should be struck out, and costs. The court found that the land was first registered in the deceased's name in 1992; that the two subdivisions (Kisumu/Kogony/5324 and 5325) derived from it; that the 1st Defendant was convicted of fraud-related offences concerning documents over the suit land, fined Ksh.60,000, and lost her appeal in Kisumu H.C. Criminal Appeal No.87 of 2011; and that her own defence admitted registering and subdividing the land. Since the criminal standard of proof is higher than the civil standard, her guilt on the fraud was established and relitigating it would waste judicial time. The court held the defence disclosed no triable issues, allowed the motion, struck out the defence with costs, and ordered accordingly on 26th October 2016.

Key legal issues

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01

Whether the 1st Defendant's defence raised triable issues

Holding

The defence raised no triable issues because the defendant's fraud in obtaining registration of the suit land had been established in a criminal trial and upheld on appeal, and her defence admitted registration and subdivision of the land.

Reasoning

The court noted the title to Kisumu/Kogony/2788 was first registered in the deceased's name, and that the 1st Defendant was convicted in Kisumu CM Criminal Case No.342 of 2010 for making false documents, obtaining registration by false pretenses and uttering a document with intent to deceive, all relating to the suit land. Her appeal in Kisumu H.C. Criminal Appeal No.87 of 2011 was dismissed. Since the criminal standard of proof is higher than the civil standard, her guilt on the fraud was established, and relitigating the same issue would waste judicial time.

p. 2
02

Whether the defence should be struck out

Holding

Yes; the notice of motion dated 18th February 2016 was allowed and the defence struck out with costs.

Reasoning

Applying the finding that no triable issues were disclosed, the court concluded the motion had merit. The defence dated 5th August 2015 was struck out with costs, leaving the Plaintiff's claim based on fraud in obtaining and subdividing the suit land effectively undefended as against the 1st Defendant.

p. 3

Legal principles established

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  • A defence that does not raise triable issues should be struck out; where the defendant's fraud in obtaining title has already been established in criminal proceedings beyond reasonable doubt, no triable issue remains for the civil suit.

Court orders

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  1. 1.The notice of motion dated 18th February 2016 is allowed as prayed.
  2. 2.The 1st Defendant's statement of defence dated 5th August 2015 is struck out with costs.

Authorities

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Legislation

  • Penal CodeSection 347(a)
  • Penal CodeSection 320
  • Penal CodeSection 357(b)
On appeal from
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null
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel Kisumu/Kogony/2788 and its subdivisions

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, "Fredrick Omollo Ochang (Suing as legal representative and administrator of the Estate of Patrick Onyango Ochang) v Mary Auma Kasera & 3 others [2016] KEELC 408 (KLR)", Case Analysis (2016). Notice of motion dated 18th February 2016 in suit filed by plaint dated 21st October 2014 (Kisumu ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/408/eng@2016-10-26

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