Pauline Mutee Makumu & another v Ursula Kreszenntia Monika Herkenrath & 3 others [2017] KEELC 2170 (KLR)
The bottom line
#A Kenyan court refused to cancel a land transfer mid-case, ruling that fraud claims must be fully proven at trial with evidence properly before it.
What this practically means
#Executive summary
#Key legal issues
#Whether the court could declare the transfer null and void on an interlocutory application without the underlying documents being in evidence
No; the application failed because the impugned documents had been expunged and were extraneous, and no leave to re-open the case had been sought
The plaintiff had closed its case and the defence hearing was underway. The documents on which the fraud allegation rested had themselves been expunged at the plaintiff's instance after objection was sustained. Without leave to re-open the case and re-introduce the documents, the court could not act on them. The court also noted that fraud must be proved to a higher standard and tested at trial, with questions remaining as to whether the 2nd defendant was party to any alleged fraud.
Whether summary judgment procedure applied
No; the application was not brought under Order 36 or Order 2 rule 15 and the grounds relied on were not grounds for summary judgment
Summary judgment lies only for liquidated claims or recovery of land by a landlord under Order 36, or where a defence discloses no reasonable defence under Order 2 rule 15. The application invoked neither provision and sought a ruling that a fraudulently obtained document should not go to full trial. Parties having filed substantive pleadings and tendered evidence, the court was obliged to determine the issues on merits.
Distinguishability of the authorities cited by the plaintiff
The cited foreign and Kenyan cases were distinguishable because none involved judgment entered summarily as prayed
The foreign decisions concerned 'independent action' procedure following hearings, and the Alberta case turned on analysis of documentary evidence adduced by both sides at trial. None of the decisions had judgment entered summarily as the plaintiff sought, so they did not assist.
Legal principles established
#- A party cannot have documents expunged from the record and then seek to rely on the same documents; that is approbating and reprobating
- Allegations of fraud must be proved to a standard higher than in ordinary civil cases and must be tested at a full trial
- A substantive portion of a suit cannot be determined through an interlocutory application after a party has closed its case
Court orders
#- 1.The plaintiffs' notice of motion dated 4th October 2016 is dismissed
- 2.Costs of the application awarded to the 3rd & 4th defendants
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act and Articles 40(6) & 159 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pauline Mutee Makumu & another v Ursula Kreszenntia Monika Herkenrath & 3 others [2017] KEELC 2170 (KLR)", Case Analysis (2017). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2170/eng@2017-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.