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ELCDismissedNot stated in the judgment as provided· [2020] KEELC 1597 (KLR)

Paulo Kipserem A Chepkwony alias Kipserrem Chepkwony v Annah Chebet Serem (Environment & Land Case 42 of 2014) [2020] KEELC 1597 (KLR)

Environment and Land Court
28 May 2020
JOJ. M. Onyango
2,780 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Kericho Environment and Land Court dismissed a family land fraud claim because the Plaintiff could not prove fraud to the higher standard the law demands.

What this practically means

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Executive summary

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The Plaintiff, Paulo Kipserem Chepkwony, aged 97, sued through his attorney Richard K. Serem seeking a declaration that the transfer of KERICHO/KIPCHIMCHIM/756 by his late son Bernard Kiprotich Serem, and its subsequent transmission to the Defendant, the administrator of Bernard's estate, were fraudulent, together with rectification of the register. The Defendant denied fraud, asserting the property was legally transferred to her late husband in 1988 and to her upon succession, to hold in trust for her children. The court framed three issues: validity of the Power of Attorney, whether the transfers were fraudulent, and entitlement to reliefs. On the first issue, relying on the presumption of soundness of mind and noting the Principal Plaintiff's apparent hearing difficulty, the court found the Power of Attorney valid. On fraud, the court applied the standard that allegations of fraud must be proved to a level above balance of probabilities, citing Arthi Highway Developers and Musonga v Nyati. Although fraud was pleaded with particulars, the Defendant was never cross-examined on the transfer process, and the transfer documents and Land Control Board consent arose only in submissions. The Principal Plaintiff himself confirmed having transferred the property to Bernard and took a neutral stance. The court held the Plaintiff failed to prove fraud to the required standard, dismissed the suit, and, given the family relationship of the parties, ordered each party to bear their own costs.

Key legal issues

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01

Validity of the Power of Attorney

Holding

The Power of Attorney donated to Richard K. Serem was valid despite the Principal Plaintiff's denial of authorising the suit

Reasoning

The court noted there is a presumption of soundness of mind and the burden of proving incapacity lies on the party asserting it. Although the Principal Plaintiff denied authorising the suit, he appeared to have a hearing problem and may have misapprehended questions. The Power of Attorney had been duly registered and the court found it valid on the totality of the evidence.

p. 3
02

Whether fraud in the transfer of the suit property was proved

Holding

Fraud was not proved to the required standard; the suit was dismissed

Reasoning

Although fraud was pleaded with particulars, the evidence did not meet the standard higher than balance of probabilities. The Defendant was not cross-examined on the transfer process; the transfer documents and Land Control Board consent were raised only in submissions. The Principal Plaintiff did not object to the deceased registering the property and took a neutral stand in the suit.

p. 4

Legal principles established

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  • Allegations of fraud must be distinctly pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt; the burden lies on the party alleging fraud
  • There is a presumption of soundness of mind, and the burden of proving incapacity lies on the person who asserts it
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.Each party shall bear his own costs

Authorities

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Legislation

  • Registered Land Act Cap 300 (repealed)sections 116, 117
  • Land Registration Actsection 26
  • Civil Procedure RulesOrder 2 rule 4
  • Evidence Actsection 109

Cases cited (5)

  • Grace Wanjiru Munyinyi & Another v Gedion Waweru Githunguri & 5 Others
    (2011) eKLR
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR
  • Paul Muira & Another v Jane Kendi Ikinyua & 2 Others
    (2014) eKLR
  • Musonga v Nyati
    (1984) KLR 425
  • Insurance Company of East Africa vs. The Attorney General & 3 Others
    Hccc135/1998
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Paulo Kipserem A Chepkwony alias Kipserrem Chepkwony v Annah Chebet Serem (Environment & Land Case 42 of 2014) [2020] KEELC 1597 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1597/eng@2020-05-28

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