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ELCPartially AllowedKitale ELC Case No. ( plaint dated 15/10/2007)· [2018] KEELC 3639 (KLR)

Agnes Nafula Chebosi v Joseph Chebosi Kilwake [2018] KEELC 3639 (KLR)

Environment and Land Court
15 March 2018
MNMwangi Njoroge
2,387 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court confirmed a sister's ownership of Kitale land and evicted her brother because he failed to prove his fraud claims.

What this practically means

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Executive summary

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This was a first-instance land suit in which the plaintiff, registered owner of Kitale Municipality Block 13/Gatua/23 measuring 0.2023 Hectares, sued her brother (the defendant) for eviction and vacant possession, alleging that she had accommodated him on the land out of kindness but had withdrawn his licence to remain. The defendant filed a defence and counterclaim asserting that he and his wife bought the disputed plot jointly in 1996, erected a six-room semi-permanent house on it, and that the plaintiff's title was procured by fraud; he sought a declaration of trust and that 0.2023 Hectares be carved out of the plaintiff's parcel and titled to him. The plaintiff replied that she bought the suit land from the defendant's wife, Mary Cherutich Odiema, to enable her to cater for her children's needs. At trial, the plaintiff produced the title deed and sale agreements, and Mary Cherutich Odiema testified that she produced the purchase money, sold the land without involving the defendant, and used the proceeds for their children. The court framed two issues: whether the plaintiff's title was procured by fraud, and what orders should issue. Applying Section 143(1) of the (repealed) Registered Land Act and the adverse-inference principle in David Katana Ngomba v Shafi Grewal Kaka, together with Sections 108 and 109 of the Evidence Act, the court held that the defendant failed to prove fraud, notably because he did not enjoin his wife or the original vendors, and adduced no registry evidence. Judgment was entered for the plaintiff as prayed; the counterclaim was dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether the registration of the suit land in the plaintiff's name was procured by fraud and misrepresentation

Holding

It was not proved that the registration was procured by fraud; the defendant failed to discharge the burden of proof

Reasoning

The defendant alleged fraud but never enjoined his wife, Mary Cherutich Odiema, who both featured in the purchase agreement and admitted selling the land to the plaintiff. The sellers of the land and the Land Registry were also not joined or called to give evidence. Applying the adverse-inference principle from David Katana Ngomba v Shafi Grewal Kaka and Sections 108 & 109 of the Evidence Act, the court found the fraud particulars unproved.

p. 3
02

What orders should issue on the plaintiff's claim and the defendant's counterclaim

Holding

The plaintiff proved her claim on a balance of probabilities and remains the lawful owner; the counterclaim was dismissed

Reasoning

Having found no fraud in the plaintiff's acquisition of title, the plaintiff remained the lawful owner of the suit land. The plaintiff therefore established her claim for eviction and vacant possession on a balance of probabilities as prayed in prayer No. 1, while the defendant's counterclaim for a carved-out portion and title deed failed.

p. 3

Legal principles established

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  • Where a party fails to call a critical witness, the court is free to draw an inference that the witness would have given adverse evidence against that party
  • The burden of proving fraud lies on the party alleging it, under Sections 108 & 109 of the Evidence Act
  • Rectification of the register may be ordered where a registration has been obtained by fraud or mistake, subject to protection of bona fide possessory proprietors

Court orders

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  1. 1.Judgment entered in favour of the plaintiff against the defendant as prayed in prayer No. 1 of the suit (eviction and vacant possession of LR. No. Kitale Municipality Block 13/Gatua/23)
  2. 2.The defendant's counterclaim is dismissed
  3. 3.Each party shall bear their own costs of the suit and the counterclaim respectively

Authorities

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Legislation

  • Registered Land Act (now repealed)Section 143(1)
  • Evidence Act (Cap 80)Sections 108 & 109

Cases cited (1)

  • David Katana Ngomba v Shafi Grewal Kaka
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction over the suit land (land claim for eviction, possession and counterclaim for trust/rectification)

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, "Agnes Nafula Chebosi v Joseph Chebosi Kilwake [2018] KEELC 3639 (KLR)", Case Analysis (2018). Kitale ELC Case No. ( plaint dated 15/10/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3639/eng@2018-03-15

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