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ELCDismissedELC Case No. 211 of 2017· [2020] KEELC 2548 (KLR)

Ben Murumba Nakitare v Speed Capital Limited & another [2020] KEELC 2548 (KLR)

Environment and Land Court
5 May 2020
1,619 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who claimed his signature on a charge was forged lost his case because he offered no expert proof of the forgery.

What this practically means

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Executive summary

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The Plaintiff, registered owner of LR No. 5892/10 at Ololua Ridge, Karen, sued Speed Capital Limited (a lender) and the Chief Land Registrar seeking a permanent injunction restraining interference with the property and an order compelling the 1st Defendant to execute a discharge of a charge dated 8th April 2016 registered over the property. The Plaintiff's case was that he never executed the charge; his pleaded particulars of fraud included forgery of his signature, his title and other registration documents, and fraudulent registration without spousal consent. He learnt of the charge when a purchaser of half the property was alerted by his advocate, causing the sale to collapse and the refund of a 10% deposit. The 1st Defendant, through its Recovery Manager, testified that a third party, Osman Abdullahi Ali, borrowed money with the Plaintiff standing as guarantor, and that the charge was duly executed before the lender's advocates; it contended the suit was an attempt to escape guarantor obligations. The 2nd Defendant filed a defence but called no evidence. The court framed the sole issue as whether the charge documents were forged. Applying section 107 of the Evidence Act and R.G. Patel v Lalji Makanji, it held that allegations of fraud require strict proof beyond a mere balance of probabilities. The Plaintiff gave no specimen signatures for expert examination, produced no evidence of the alleged forgery of an affidavit declaring him unmarried, and did not call the advocate before whom the charge was allegedly executed. His conduct - failing to pursue the police report, not enjoing the borrower, and withdrawing a contempt application after the property was sold - told against him. The suit was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the charge documents were forged

Holding

The Plaintiff failed to prove forgery; there was no contention that a charge was registered over the suit property, but the Plaintiff did not adduce expert evidence to show his signature was forged

Reasoning

The Plaintiff alleged forgery of his signature, title and other documents but provided no specimen signature for expert examination and relied on his own lay comparison of signatures. He also produced no evidence that an affidavit stating he was unmarried was forged. Without such proof, the burden never shifted to the 1st Defendant to prove execution.

p. 2
02

Standard of proof applicable to allegations of fraud

Holding

Fraud must be strictly proved to a standard above a mere balance of probabilities, though below proof beyond reasonable doubt

Reasoning

Applying R.G. Patel v Lalji Makanji, the court held that a party relying on fraud must go the extra mile of adducing evidence linking the allegation of fraud to a party. The Plaintiff gave no evidence in support of the pleaded particulars of fraud and did not confront the 1st Defendant with the title it allegedly forged.

p. 2
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Effect of the Plaintiff's conduct on his claim

Holding

The Plaintiff's conduct - failure to give signature samples to police, not enjoing the borrower, not pressing criminal charges, and withdrawing a contempt application - undermined his assertion that he never signed the charge

Reasoning

The court drew an adverse inference from the Plaintiff's casual handling of the alleged forgery: he never followed up the police report, never summoned the advocate before whom the charge was allegedly executed, never joined the borrower, and only moved to court when statutory notices were issued, conduct inconsistent with a person convinced he signed nothing.

p. 3

Legal principles established

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  • Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required
  • A party asserting that facts exist, such as forgery of a charge document, bears the burden of proving those facts under section 107 of the Evidence Act
  • A party who alleges forgery of signatures must adduce expert document examination evidence; a litigant cannot purport to compare signatures without being an expert in handwriting

Court orders

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  1. 1.The suit is dismissed with costs to the Defendants

Authorities

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Legislation

  • Evidence ActSection 107

Cases cited (1)

  • R.G. Patel Vs. Lalji Makanji
    (1957) EA 314 at 317
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to land and charges registered against land

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, "Ben Murumba Nakitare v Speed Capital Limited & another [2020] KEELC 2548 (KLR)", Case Analysis (2020). ELC Case No. 211 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2548/eng@2020-05-05

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