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ELCDismissedCase No. 3 of 2014· [2020] KEELC 3323 (KLR)

Lucas Buluma Were v Oduori Makanga & another [2020] KEELC 3323 (KLR)

Environment and Land Court
12 March 2020
1,541 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost his fraud case because he couldn't prove fraud and attacked the wrong court's order — pleadings and the right forum matter.

What this practically means

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Executive summary

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The plaintiff, Lucas Buluma Were, sued the two defendants seeking cancellation of title deeds to 0.05ha of land parcel BUNYALA/BUKOMA/974, alleging the titles were fraudulently obtained in disregard of an adopted Budalangi Land Dispute Tribunal award. The 1st defendant claimed he acquired the land through succession proceedings (Cause No. 67 of 2008) following the death of the registered owner, Marende Makanga, while the 2nd defendant asserted he did due diligence before buying his portion. The court framed a single issue: whether the 1st defendant acquired title by fraud. It found the 1st defendant's registration was made pursuant to an order of the High Court in the succession cause; until that order is set aside or reviewed, the court, sharing concurrent jurisdiction with the High Court, cannot sit in appeal over it. The plaintiff's complaints about being omitted from the succession proceedings should have been raised before the High Court by seeking revocation of the grant. The alleged double sale to Elly Ouma Egesa was unsupported by the green card or any sale agreement; failure to honour an agreement is breach of contract, not fraud. None of the pleaded particulars of fraud met the required threshold, the burden of proving fraud being strict. The court declined to determine the unpleaded issue of the Tribunal's jurisdiction. The suit, hinged solely on fraud, was dismissed, but because the plaintiff lost due to inadequate pleadings, each party was ordered to bear their own costs. Judgment delivered at Busia on 12th March 2020 by A. Omollo, Judge.

Key legal issues

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01

Whether the plaintiff proved fraud in the 1st defendant's acquisition of title

Holding

No; none of the pleaded particulars of fraud were proved to the required threshold

Reasoning

The court examined each pleaded particular of fraud. The registration of the 1st defendant flowed from an order in High Court Succession Cause No. 67 of 2008, so it was made in execution of a court order that remains valid until set aside or reviewed. The alleged sale to Elly Ouma Egesa was unsupported by any evidence on the green card or sale agreement. Failure to honour an agreement is breach of contract, not fraud. The court cannot sit in appeal over High Court orders.

p. 2
02

Whether the court could entertain challenges to the succession proceedings and the Tribunal's jurisdiction not raised in the pleadings

Holding

No; issues not pleaded could not be determined, and the suit, being hinged solely on fraud, had to fail

Reasoning

The plaintiff's complaints about the succession cause ought to have been taken up before the High Court by seeking revocation of the grant. The 1st defendant's jurisdictional objection against the Land Disputes Tribunal was raised only in his witness statement, not in either defence, so the court declined to consider it. Parties are bound by their pleadings.

p. 2

Legal principles established

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  • A party alleging fraud bears a strict burden of proof which must be discharged by pleadings and evidence
  • Registration obtained in execution of a valid court order cannot be challenged as fraudulent unless and until that order is set aside or reviewed
  • The Environment and Land Court and the High Court share concurrent jurisdiction, and the ELC cannot sit on appeal over orders of the High Court
  • Parties are bound by their pleadings and the court cannot go beyond the parameters of what was pleaded

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Each party shall meet their respective costs of the suit
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (court capable of determining claims relating to title to land; court expressly declined to sit on appeal over High Court orders in a succession cause)

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, "Lucas Buluma Were v Oduori Makanga & another [2020] KEELC 3323 (KLR)", Case Analysis (2020). Case No. 3 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3323/eng@2020-03-12

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