Watenya Wa Murambi Ramadhan v Mohamed Juma Ponda [2019] KEELC 734 (KLR)

The defendant relied on Bungoma High Court Civil Case No 3 of 2000 but only produced a ruling dismissing a preliminary objection. Section 7 of the Civil Procedure Act requires the previous suit to have been heard and finally decided. The defendant failed to discharge that evidential burden, so the plea could not be upheld.

Although the 1999 agreement predates the suit by 17 years, the plaintiff only demanded re-transfer in 2013 and the defendant refused. The cause of action therefore accrued in 2013, within twelve years of filing in 2016. The court also noted no limitation period applies where trust is pleaded.

Order 2 Rule 10(1)(a) requires particulars of fraud, breach of trust etc. The plaint did not specifically plead trust. However, following Odd Jobs v Mubia and other authorities, since the issue of trust was raised in testimonies and submissions by both parties and left for determination, the Court could pronounce on it.

The parties, both Muslims, chose to have their agreement drawn by a Kadhi rather than an advocate, consistent with the Islamic practice of entrusting property in trust. The defendant's subsequent 1st October 2016 agreement acknowledging the plaintiff's share of Kshs 1.7 million was irreconcilable with an absolute purchase for Kshs 60,000. A resulting trust was inferred under Section 28 of the Land Registration Act.

Two conflicting versions of the agreement emerged. Without expert evidence, the Court compared the documents itself, noting the different fonts and the second page attached by cellotape, and found the defendant's version a forgery. The agreement was signed only by the persons to be charged, satisfying the then-applicable Section 3(3) of the Law of Contract Act.