Josphat Kinoti Mwanja v Samson Miriti M’itiri & another [2021] KEELC 3102 (KLR)

The trial court had the advantage of hearing and observing witnesses on conflicting evidence. The alleged sale agreement was undated, in vernacular never translated, without particulars of the property, and its attesting witnesses were not called. An alleged companion of the deceased denied the transaction, and the Appellant only claimed ownership in 2006, long after the deceased's lifetime, undermining the purchase claim.

The trial court correctly appreciated that fraud must be proved to a standard higher than balance of probabilities but below beyond reasonable doubt. Since the defence of purchase failed, no other lawful basis for the registration existed, and the only available conclusion was that registration was obtained through deceit or fraud as defined in Black's Law Dictionary.

Whether Land Control Board consent was obtained was a fact peculiarly within the Appellant's knowledge. Relying on Section 112 of the Evidence Act and the Court of Appeal's decision in George Mbiti Kiebia v Isaya Theuri M'Lintari, the court held the Appellant bore the obligation to prove or disprove the consent, and the trial court did not err in so allocating the burden.

Under the proviso to Section 27 of the Civil Procedure Act, costs follow the event and a successful party should ordinarily be awarded costs unless the court, for good reason, directs otherwise. No good reason existed to deprive the 1st Respondent of costs, while the non-participating 2nd Respondent was denied any costs.