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ELCDismissednot stated in the judgment (suit filed on 11.4.2008)· [2019] KEELC 3354 (KLR)

Catherine Nkirote v Stephen Marete & another [2019] KEELC 3354 (KLR)

Environment and Land Court
22 May 2019
1,126 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a 2008 land fraud claim because the family never produced actual proof the 1966 and 1998 transfers were fraudulent.

What this practically means

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Executive summary

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This Environment and Land Court judgment at Meru disposed of a long-running dispute over land parcel Nkuene/Kathera/726. The original plaintiff, Catherine Nkirote, sued in 2008 alleging that the 1st defendant fraudulently caused the transfer of the suit land to himself on 9.2.1966, and then fraudulently transferred it to the 2nd defendant (his brother) on 23.9.1998. Catherine died in 2013 and her son Joseph Gikunda testified in her place, adopting a written statement and alleging forged transfer documents. The defendants denied fraud, asserting that the 1st defendant lawfully bought the land from the plaintiff's mother under an agreement dated 17.12.1965, evidenced by a land sale agreement, acknowledgement receipts, a green card and a certificate of interpretation; the 2nd defendant claimed the land as a gift from his brother. The court framed two issues: whether the suit was time barred, and whether fraud attended the transfers. On limitation, although the defendants invoked section 7 of the Limitation of Actions Act, the court held that the pending tribunal litigation and the unresolved appeal in Meru H.C.C Appeal No. 19 of 2008 muddled the limitation issue. On fraud, applying sections 107 and 109 of the Evidence Act and the strict standard of proof for fraud (citing R.G Patel v Lalji Makanji and other authorities relied on by the defendants), the court found that the plaintiff had adduced no evidence of the nature and extent of the alleged 1966 and 1998 frauds. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether the suit was barred by limitation under section 7 of the Limitation of Actions Act, given registration of the 1st defendant in 1966 and filing in 2008

Holding

The court did not decisively determine limitation; it held that the pending tribunal litigation and appeal muddled the limitation issue

Reasoning

It was not disputed that the 1st defendant became registered owner in 1966, and the defendants argued 42 years had lapsed. However, Catherine had pursued her claim before the land tribunal and provincial tribunal, winning both, and an appeal (Meru H.C.C Appeal No. 19 of 2008) was pending when the suit was filed. The court therefore found that this live litigation obscured the limitation question and proceeded to decide the claim on the fraud issue instead.

p. 2
02

Whether the plaintiff proved fraud in the 1966 transfer to the 1st defendant and the 1998 transfer to the 2nd defendant

Holding

The plaintiff failed to prove fraud to the strict standard required; the suit was dismissed

Reasoning

Section 107 of the Evidence Act places the burden of proof on the plaintiff. Fraud must be strictly proved, on something more than a mere balance of probabilities. PW 1, who was a minor in 1965, admitted he never occupied the land and gave no evidence on how either the 1966 or 1998 transfers were effected. With no evidence of the nature and extent of the alleged fraud, the court agreed with the defendants that the claim under sections 107 and 109 of the Evidence Act had not been made out.

p. 2

Legal principles established

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  • Allegations of fraud must be strictly proved; the standard is higher than a mere balance of probabilities though short of proof beyond reasonable doubt
  • The burden of proving fraud in a transfer of land lies on the party asserting it

Court orders

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  1. 1.Plaintiff's suit dismissed with costs to the defendants

Authorities

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Legislation

  • Evidence Actsection 107
  • Evidence Actsection 109
  • Limitation of Actions Actsection 7

Cases cited (3)

  • R.G Patel Vs. Lalji Makanji
    (1957) E.A 314
  • Koinange & 13 others vs Koinange
    (1986) eKLR
  • Richard Akwesera Onditi vs Kenya Commercial Finance Ltd
    C.A No. 329 of 2009
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute concerning title to land parcel Nkuene/Kathera/726 (specific enabling provision not cited 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, "Catherine Nkirote v Stephen Marete & another [2019] KEELC 3354 (KLR)", Case Analysis (2019). not stated in the judgment (suit filed on 11.4.2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3354/eng@2019-05-22

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