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ELCDismissedCase No 323 of 2017· [2020] KEELC 1481 (KLR)

Connie Francis C.O. Owala v Japheth Angila Atinga & 2 others [2020] KEELC 1481 (KLR)

Environment and Land Court
22 July 2020
GOG. M. A. Ongondo
2,038 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Migori dismissed a landowner's fraud claim against the Land Registrar because he couldn't prove the alleged fraud or his damages.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Isaya Owala Orwa (the registered proprietor of land parcel Kamagambo/Kanyamamba/451), sued the Land Registrar Migori, the Attorney General and (in a part already determined in 2017) the 1st defendant, alleging that between November and December 2011 the 1st and 2nd defendants fraudulently conspired to alter the register entries in respect of the suit land. He sought special damages, general, aggravated and exemplary damages, mesne profits, rectification of the register, and a permanent injunction. The suit was transferred from Kisii to the Migori Environment and Land Court and heard as against the 2nd and 3rd defendants only, on damages. The Land Registrar testified that the cancellations corrected errors under Section 79 of the Land Registration Act and blamed the 1st defendant for the impugned entries. Framing two issues guided by Galaxy Paints v Falcon Grounds, the court held that fraud must be distinctly pleaded and proved; on the evidence the 1st defendant caused the disputed entries and the plaintiff had failed to bring key documents to the Registrar's attention, so the Registrar and the Attorney General were absolved of blame. Further, special damages were pleaded but not proved, and mesne profits were neither specifically pleaded nor proved, being a species of special damages. The claim against the 2nd and 3rd defendants was dismissed with costs to them.

Key legal issues

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01

Whether fraud was proved against the Land Registrar

Holding

No. The evidence showed the 1st defendant caused the disputed entries; the Registrar acted on documents presented and the plaintiff never drew the relevant documents to the Registrar's attention.

Reasoning

The court found that the cancellations corrected errors under Section 79 of the Land Registration Act and that the 1st defendant presented the documents causing entries 7, 8 and 9. The plaintiff admitted he did not inform the 2nd defendant of key exhibits, so no fraud by the Registrar was established.

p. 3
02

Whether special damages and mesne profits were proved

Holding

No. Special damages were pleaded but not proved, and mesne profits were neither specifically pleaded nor proved.

Reasoning

The court applied the rule that special damages must be specifically pleaded and proved, citing Great Lakes Transport, and endorsed the position in Nakuru Industries that mesne profits, being a species of special damages, require specific pleading and proof.

p. 3

Legal principles established

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  • Fraud must be distinctly pleaded and proved
  • Special damages must be both specifically pleaded and proved
  • Mesne profits are a form of special damages which must be specifically pleaded and proved

Court orders

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  1. 1.The plaintiff's claim against the 2nd and 3rd defendants is dismissed with costs to the 2nd and 3rd defendants

Authorities

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Legislation

  • Law of Succession ActSection 71
  • Civil Procedure ActSection 27
  • Civil Procedure ActSection 2 (mesne profits)
  • Civil Procedure ActSection 3A
  • Land Registration ActSection 79
  • Environment and Land Court ActSections 3 and 19
  • Constitution of Kenya, 2010Articles 48, 50(1), 25(c), 7(3)(b), 159(2)(b) and (d)

Cases cited (11)

  • Galaxy Paints Co. Ltd v Falcon Grounds Ltd
    (2000)2EA 385
  • Vijay Morjaria v Nansingh Madhusingh Darbar and another
    (2000)eKLR
  • Ndolo v Ndolo
    (2008)IKLR (G&F) 742
  • Elijah Makeri Nyangwara v Stephen Mungai Njuguna and another
    (2013)eKLR
  • Kenya National Highway Authority v Shahen Masoud Mughal and 5 others
    (2017)eKLR
  • Alice Chemutai Too v Nickson Kipkurui Kurui and 2 others
    (2013)eKLR
  • Damaris Wanjiku Mwai v Patrick Tumuri Kimutwe
    ELCC No. 346 of 2017
  • Abiero v Thabiti Finance Co. Ltd and another
    (2001)KLR 496
  • Great Lakes Transport Co (U) Ltd v Kenya Revenue Authority
    (2009)KLR 720
  • Rioki Estate Company (1970) Ltd v Kinuthia Njoroge
    (1977)KLR 146
  • Nakuru Industries Ltd v S.S Mehta and sons
    (2016)eKLR
Jurisdiction invoked
Environment and Land Court Act, 2015, Sections 3 and 19

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, "Connie Francis C.O. Owala v Japheth Angila Atinga & 2 others [2020] KEELC 1481 (KLR)", Case Analysis (2020). Case No 323 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1481/eng@2020-07-22

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