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ELCPartially AllowedNot stated in judgment (Plaint dated 16th December 2016)· [2021] KEELC 2480 (KLR)

Esther Nanjala Ndalila v Patrick Wafula Kati & another [2021] KEELC 2480 (KLR)

Environment and Land Court
21 July 2021
3,165 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Bungoma court confirmed the buyer of a market plot owns it, ordering the seller's sons to vacate after they failed to prove fraud.

What this practically means

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Executive summary

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The plaintiff sued the two defendants for eviction from Plot No. 7 Sikusi Market, alleging she purchased it on 18th December 2011 from the late Nicholas Kati for Kshs. 115,000/= and that the defendants invaded and developed it from 2012. The defendants, sons of the deceased, denied the sale, claimed their father had allocated the plot to them, alleged the sale agreement was procured by fraud (including that the widow Ann Kituyi Katti signed it), and Counter-Claimed for a declaration of nullity, cancellation of the plaintiff's ownership and reversion of the plot to the deceased's name. At trial, the plaintiff and PW 2 (the deceased's widow) confirmed the sale, the payment of Kshs. 100,000/= deposit and Kshs. 15,000/= balance, and the transfer of the plot with the County Government of Bungoma's endorsement. The 1st defendant admitted in cross-examination that his father sold the plot; the 2nd defendant supported the plaintiff and disclaimed interest. The Court held that fraud must be specifically pleaded and distinctly proved to a higher standard, and that the defendants led no evidence of fraud. The transfer was lawful and endorsed by the County Government. The Counter-Claim was dismissed; judgment was entered for the plaintiff requiring the defendants to vacate and remove structures within three months, failing which they would be evicted. The 1st defendant alone was ordered to bear the plaintiff's costs and the costs of the dismissed Counter-Claim.

Key legal issues

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01

Whether the defendants proved the pleaded fraud in the sale of the suit plot to the plaintiff

Holding

The allegations of fraud failed for want of proof; the evidence showed the deceased himself sold the plot to the plaintiff and the transaction was endorsed by the County Government of Bungoma.

Reasoning

Although the defendants pleaded particulars of fraud in paragraph 16 of their defence and Counter-Claim, they led no direct or circumstantial evidence when they testified. Conversely, the plaintiff's witness ANN KITUYI KATTI confirmed the sale and receipt of the balance of the purchase price, and the 2nd defendant supported the plaintiff's case. The Court applied the rule that fraud must be distinctly proved to a higher standard, and noted the County Government's internal memo and clearance letters confirming the transfer.

p. 5
02

Whether the defendants had any right to occupy the suit plot

Holding

Having no title or interest in the plot, the defendants were trespassers and the plaintiff was entitled to an eviction order.

Reasoning

The deceased transferred the plot to the plaintiff with the blessing of the County Government, which amended its records and collected rates from the plaintiff. The defendants' claim to be administrators of the deceased's estate was unsupported by any letters of administration, and there was no evidence of any inter vivos transfer or trust. The 1st defendant admitted in cross-examination that his father sold the plot to the plaintiff, and the 2nd defendant disclaimed any interest and accused the 1st defendant of taking the plot by force.

p. 5
03

Allocation of costs between the two defendants

Holding

Only the 1st defendant, who necessitated the suit, was to bear costs; the 2nd defendant supported the plaintiff's case.

Reasoning

The Court found on the evidence that the 2nd defendant recognized the plaintiff's ownership and had pulled out of the plot, and doubted whether he authorized the 1st defendant to sign the verifying affidavit on his behalf. It was therefore just that the 1st defendant alone bear the plaintiff's costs and the costs of the dismissed Counter-Claim.

Legal principles established

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  • Fraud must be specifically pleaded, its particulars stated on the face of the pleadings, and fraudulent conduct must be distinctly alleged and distinctly proved; it cannot be inferred from the facts.
  • The burden and standard of proof of fraud is heavier than in an ordinary civil case.
  • A registered/transferred owner of land is entitled to evict persons in occupation without right; no person had power to revoke a valid sale agreement between private parties.

Court orders

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  1. 1.The defendants' Counter-Claim is dismissed
  2. 2.The defendants shall vacate from the suit plot and remove all their structures thereon within three (3) months of the Judgment
  3. 3.In default of vacating, the defendants shall be evicted from the suit plot
  4. 4.The 1st defendant shall meet the plaintiff's costs as well as the costs of the dismissed Counter-Claim

Authorities

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Cases cited (2)

  • VIJAY MORJARIA .V. NANSINGH MADHUSINGH DARDAR & ANOTHER
    2000 eKLR
  • CENTRAL BANK OF KENYA LTD & OTHERS .V. TRUST BANK LTD
    1996 KLR eKLR
Jurisdiction invoked
Original jurisdiction of the High Court/Environment and Land Court over a claim for eviction from land (suit plot Plot No. 7 Sikusi Market); no specific constitutional or statutory provision invoked 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, "Esther Nanjala Ndalila v Patrick Wafula Kati & another [2021] KEELC 2480 (KLR)", Case Analysis (2021). Not stated in judgment (Plaint dated 16th December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2480/eng@2021-07-21

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