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ELCDismissedCivil Suit No 9 of 2009· [2017] KEELC 2927 (KLR)

Henry George Mkangi & 9 others v William George Mkangi & another [2017] KEELC 2927 (KLR)

Environment and Land Court
12 May 2017
OAO. A. AngoteJOJ. O. Olola
2,874 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed seven siblings' claim that their brother fraudulently registered family land in his name, because they proved nothing.

What this practically means

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Executive summary

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In a plaint dated 10th February 2009, seven siblings sued their brother, the 1st Defendant, and the Land Registrar, Kilifi, seeking a declaration that they were the bona fide proprietors of six plots in Kilifi (Kinunguna, Chauringo and Forodhani) and an order for rectification of the register by cancelling the 1st Defendant's name and substituting theirs. They alleged the 1st Defendant had fraudulently, maliciously and irregularly caused the plots to be registered in his name, and that some were family ancestral land held in trust, while plots 67 and 99 were personally purchased by the 1st Plaintiff. The 1st Defendant denied the claims, asserting the plots were properly adjudicated and registered to him, and that he had sold plots 13 and 99. The 2nd Defendant denied the allegations and raised lack of notice and the Plaintiffs' want of locus standi. The court found the Plaintiffs produced no registration documents for plot 13, did not call the alleged vendors of plots 67 and 99 or produce sale agreements, and never objected to the adjudication registrations since 1983. Adjudication records and title deeds showed the 1st Defendant registered as proprietor of plots 99, 78 and 140 without dispute. The court held that fraud must be pleaded with particulars and proved, and the Plaintiffs pleaded none. On a balance of probabilities, the Plaintiffs failed to prove fraudulent, irregular or mistaken registration. The suit was dismissed with costs to the Defendants.

Key legal issues

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01

Proof of fraudulent registration of the suit properties

Holding

The Plaintiffs failed to prove fraud, misrepresentation or mistake on a balance of probabilities

Reasoning

The court reviewed the evidence of PW1 and PW2 against the adjudication records and title deeds produced by the defence. The records showed the 1st Defendant registered as proprietor of plots 99, 78 and 140 without any successful objection by the Plaintiffs since 1983. The Plaintiffs did not plead particulars of fraud and produced no sale agreements or registration documents supporting their claims of purchase or family trust.

p. 6
02

Burden of proof regarding plot number 13

Holding

The claim over plot 13 failed for want of evidence of registration in the name of the family or the late Samson Chemange

Reasoning

Neither party produced registration documents for plot 13; the lands registry official could not trace the records. The plot had also been sold to a third party not joined in the suit. The Plaintiffs further did not demonstrate locus standi to sue over the estates of deceased individuals, and produced no adjudication records or title to establish any trust.

p. 5
03

Claims over plots 48, 67, 99 and 140

Holding

These claims failed because the Plaintiffs did not call the alleged vendors, produce sale agreements, or show registration in the 1st Defendant's name (plots 48 and 67)

Reasoning

The alleged purchases of plots 67 and 99 by the 1st Plaintiff were unsupported by vendor testimony or sale agreements. The adjudication record showed plot 99 registered to the 1st Defendant in 1989 following a successful objection. For plots 48 and 67, no evidence showed they were even registered in the 1st Defendant's name; title deeds for some had not been issued.

p. 6

Legal principles established

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  • He who asserts must prove - the burden of proving facts lies on the party asserting them (section 107, Evidence Act)
  • Particulars of fraud must be specifically pleaded in a plaint
  • A party alleging registration in trust must produce adjudication records, title deed or register to prove the trust

Court orders

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  1. 1.Dismissal of the Plaintiffs' suit
  2. 2.Costs of the suit awarded to the Defendants

Authorities

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Legislation

  • Evidence Actsection 107
  • Civil Procedure RulesOrder 2 Rule 10(1)(a)
  • Land Adjudication ActNot specified
Jurisdiction invoked
Original jurisdiction as first-instance civil suit; not expressly stated in the judgment

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, "Henry George Mkangi & 9 others v William George Mkangi & another [2017] KEELC 2927 (KLR)", Case Analysis (2017). Civil Suit No 9 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2927/eng@2017-05-12

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