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ELCDismissedE.L.C. Case 185 of 2014 (Formerly Kerugoya E.L.C Case No. 402 of 2013)· [2018] KEELC 2665 (KLR)

Sospeter Njuki Kagundu & 2 others v Nicholas Nguthi Kivinda & 2 others [2018] KEELC 2665 (KLR)

Environment and Land Court of Kenya at Embu
14 June 2018
YAY. M. Angima
5,608 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~22 min to read original · ~4 min brief

The bottom line

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The court dismissed the landowners' fraud claim and confirmed the defendants' titles because fraud in Kenyan land cases must be strictly proved.

What this practically means

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Executive summary

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The three Plaintiffs sued the three Defendants seeking a permanent injunction, cancellation of the Defendants' titles to parcels Mbeere/Mbita/2600, 3184, 3185, 3186, 3187, 3189 and 10, and in the alternative a declaration that the Defendants held the titles in trust for the Plaintiffs and clan beneficiaries. They alleged fraud, including misleading illiterate parents into signing away land, alteration of the initial register, and acquisition of titles while matters were pending before the High Court. The Defendants denied the claim and filed counterclaims seeking declarations of lawful proprietorship, eviction of the Plaintiffs, removal of cautions, and costs. The Plaintiffs called seven witnesses; the Defendants called only the 1st Defendant. The court framed four issues: fraud, entitlement to relief in the plaint, entitlement to relief in the counterclaims, and costs. It found that the letter of 19th April 1977 surrendering the parcels was signed by the Plaintiffs' father (chairman of the family for demarcation) on behalf of the 1st and 2nd Plaintiffs, and by the 3rd Plaintiff's brother, and that no complaint or objection was lodged with the adjudication authorities within a reasonable time. Allegations of fraud were held not strictly proved to the standard in Koinange v Koinange, and the alleged oath document was given no probative value. The suit was dismissed and the counterclaims allowed, with a 90-day grace period to vacate, evictions to follow the Land Laws (Amendment) Act, 2016, interim inhibitions vacated, and each party bearing its own costs except that the Plaintiffs were to pay the 3rd Defendant's costs.

Key legal issues

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01

Whether fraud in acquisition of title was proved

Holding

The Plaintiffs failed to prove fraud to the required standard; evidence did not establish that parents or brother were misled, and no complaint was lodged with adjudication authorities

Reasoning

Fraud must be strictly proved. The father, Ngiri Ngichenge, was chairman of the family for land demarcation and entitled to represent the 1st and 2nd Plaintiffs. The 3rd Plaintiff was reasonably represented by his brother. None of the Plaintiffs distanced themselves within a reasonable time or lodged objections with adjudication authorities, and no adjudication or clan register was produced to substantiate alleged alteration.

p. 6
02

Probative value of the alleged oath document (exhibit P3)

Holding

The handwritten oath document was accorded no probative value for non-compliance with the Oaths and Statutory Declarations Act

Reasoning

The document was illegible, unsigned by the 1st Defendant, and bore no signature or stamp of the person administering the oath, so it could not be shown to be a lawful oath and failed evidentiary requirements.

p. 6
03

Entitlement to reliefs in the counterclaims

Holding

As registered proprietors whose titles were unchallenged on proof, the Defendants are entitled to the reliefs sought in their counterclaims

Reasoning

The Defendants are registered proprietors of the suit properties. The Plaintiffs failed to prove their fraud claim, so the Defendants enjoy all rights of a registered proprietor under section 25 of the Land Registration Act, 2012. Additionally, none of the Plaintiffs filed a defence to the counterclaims.

p. 6

Legal principles established

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  • Allegations of fraud must be strictly proved to a standard beyond a balance of probabilities but not as high as beyond reasonable doubt
  • A family member may represent another in land adjudication proceedings without express written authority where the other is absent
  • Costs follow the event under section 27 of the Civil Procedure Act

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.The Defendants' respective counterclaims are allowed as prayed
  3. 3.The Plaintiffs shall have a grace period of 90 days within which to vacate the suit properties they may be occupying
  4. 4.Any eviction shall be conducted strictly in accordance with the law including the Land Laws (Amendment) Act, 2016
  5. 5.Each party shall bear its own costs except for the 3rd Defendant whose costs shall be paid by the Plaintiffs
  6. 6.The orders of inhibition granted on 14th December 2017 pending delivery of judgement are vacated
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land

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, "Sospeter Njuki Kagundu & 2 others v Nicholas Nguthi Kivinda & 2 others [2018] KEELC 2665 (KLR)", Case Analysis (2018). E.L.C. Case 185 of 2014 (Formerly Kerugoya E.L.C Case No. 402 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2665/eng@2018-06-14

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