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ELCDismissedE.L.C. Case No. 283 of 2015· [2018] KEELC 3154 (KLR)

Joseph Gitari v Muthui Chomba & 7 others [2018] KEELC 3154 (KLR)

Environment and Land Court of Kenya
31 May 2018
YAY.M. Angima
4,205 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a land fraud claim because the plaintiff could not prove the fraud to the stricter legal standard Kenyan courts demand.

What this practically means

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Executive summary

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The Plaintiff, administrator of the estate of Nyaga Thumi, sued eight Defendants claiming declarations that various Mwea/Murinduko parcels originally belonged to the deceased, revocation of the Defendants' titles by the Land Registrar, a permanent injunction, and compulsory transfer of the properties to the estate. He pleaded that the properties were fraudulently transferred from the deceased and sub-divided in collusion with the Land Registrar. The 1st to 3rd Defendants did not defend; interlocutory judgment was entered against them in 2010. The 4th to 6th Defendants pleaded that they were bona fide purchasers for value. At trial only the Plaintiff and the Land Registrar testified. The court first confirmed its jurisdiction under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act. It found the Plaintiff was duly the administrator and had capacity to sue, but that there was no evidence the Defendants sub-divided parcel No. 92, which the deceased himself had sub-divided in 1975. The court held that fraud, being a serious charge, must be pleaded, particularized and strictly proved beyond a balance of probabilities; the particulars pleaded were not proved. The 3rd to 6th Defendants were subsequent transferees, and fraud could not be imputed to them absent direct or strong circumstantial evidence. Consequently, rectification under section 80 of the Land Registration Act was unavailable. The court also declared the earlier interlocutory judgment irregular, no liquidated damages having been claimed. The suit was dismissed with costs to the 7th and 8th Defendants who participated at trial.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over the suit

Holding

The court had jurisdiction over the land dispute under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act

Reasoning

The court noted that jurisdiction must be determined first since without it other issues would be futile, and found that a land dispute falls squarely within the mandate of the Environment and Land Court as contemplated by Article 162(2)(b) and section 13 of the ELC Act, citing Owners of Motor Vessel 'Lillians'.

p. 3
02

Whether the Plaintiff proved fraud against the Defendants

Holding

Fraud was not proved; the suit failed

Reasoning

Although particulars of fraud were pleaded, the Plaintiff adduced no evidence that the Defendants were privy to or aware of any fraud. The green cards showed lawful transfers for consideration. Fraud being a serious charge, it had to be strictly proved to a standard above a balance of probabilities, which the Plaintiff failed to meet.

p. 4
03

Whether the court could cancel the Defendants' titles

Holding

Rectification could not be ordered absent proof that the proprietors were party to or contributed to the fraud or mistake

Reasoning

Section 80 of the Land Registration Act permits rectification where registration was obtained by fraud or mistake, but the register cannot be rectified to affect the title of a proprietor who lacked knowledge of, or did not cause or contribute to, the fraud. The Defendants were subsequent transferees with no proven knowledge.

p. 4
04

Validity of the interlocutory judgment entered against the 1st-3rd Defendants

Holding

The default judgment was irregular and made in error since no liquidated or pecuniary damages were claimed

Reasoning

Under Order IXA of the former Civil Procedure Rules, interlocutory judgment in default lies only where liquidated damages are claimed. The amended plaint sought only declarations, rectification and injunctions, so the default judgment could be set aside by the court of its own motion under inherent jurisdiction.

p. 5

Legal principles established

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  • A charge of fraud must be pleaded, particularized and specifically proved to the satisfaction of the court, to a standard higher than a balance of probabilities
  • Fraud or knowledge of fraud cannot be imputed to subsequent transferees for value without direct or strong circumstantial evidence
  • A court may order rectification of the register where a registration was obtained by fraud or mistake, but not so as to affect the title of a proprietor without knowledge of, or contribution to, the fraud
  • Interlocutory judgment in default cannot validly be entered where the plaint claims no liquidated or pecuniary damages
  • Costs follow the event unless the court directs otherwise for good reason

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the 7th and 8th Defendants who participated at the trial

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13
  • Law of Succession ActCap 160
  • Land Registration ActSection 80(1) and (2)
  • Former Civil Procedure RulesOrder IXA

Cases cited (3)

  • Owners of Motor Vessle "Lillians" Vs Caltex Oil (K) Ltd
    [1989] KLR 1
  • Koinange & 13 Others Vs Koinange
    [1986] KLR 23
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 282
On appeal from
null
null
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 and section 13 of the Environment and Land Court Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Joseph Gitari v Muthui Chomba & 7 others [2018] KEELC 3154 (KLR)", Case Analysis (2018). E.L.C. Case No. 283 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3154/eng@2018-05-31

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