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ELCDismissedELC No. 91 of 2021 (Formerly Environment and Land Court at Kisii Case No. 440 of 2015)· [2022] KEELC 668 (KLR)

Priscah Bisinga Ongeta (Suing as the legal Administrator of the Estate of Jackson Ongeta Change (deceased) v Samwel Gisiora Ogoti [2022] KEELC 668 (KLR)

Environment and Land Court
23 March 2022
4,281 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a landowner's fraud claim because she couldn't prove forgery with strong evidence, so the defendant kept the land.

What this practically means

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Executive summary

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The Plaintiff, administratrix of the estate of Jackson Ongeta Change, sued the Defendant alleging that in April 1986 the deceased sold him only 4 Acres out of LR No. Gesima Settlement Scheme/20, yet the Defendant was registered as proprietor of the resultant LR No. Gesima Settlement Scheme/299 measuring 2.5 Hectares (6.25 Acres) - an excess of 2.25 Acres allegedly procured by fraud. She sought a declaration of fraud, rectification of the register to excise the excess and revert it to the estate, and a permanent injunction. The Defendant denied the claim, asserting he purchased 2.5 Hectares, took possession in the vendor's lifetime, repaid the vendor's Settlement Fund Trustees loan as part of the purchase price, and obtained title on 28/6/1991 following due process. The court heard the Plaintiff, her son, and the Land Registrar, and the Defendant, and conducted a locus in quo visit at the Defendant's request, with reports filed by the Land Registrar and Deputy County Surveyor. Applying Sections 107, 109 and 112 of the Evidence Act and the settled standard that fraud must be strictly proved - more than a balance of probabilities but not beyond reasonable doubt - the court found the Plaintiff had pleaded fraud but failed to prove it. She did not call the Surveyor, did not compare the Land Control Board records, and the 1986 District Settlement Officer letter was of no probative value as its author was unknown and not called. The court believed the Land Registrar and found the transfer above board, also clarifying that Parcel 482 (registered to the SDA Church) was not derived from the suit property. The suit was dismissed with costs.

Key legal issues

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01

Whether the Plaintiff proved fraud in the sub-division and transfer of LR No. Gesima Settlement Scheme/299

Holding

No fraud was proved; the dealings leading to the transfer of 2.5 Hectares to the Defendant were above board

Reasoning

The Plaintiff pleaded and particularized fraud but failed to lay a basis in evidence. She did not call the Surveyor, did not obtain Land Control Board records for comparison, and produced no evidence of forged signatures or transfer documents. The Land Registrar and County Surveyor's locus in quo reports confirmed the boundaries and the 4.1/2.5 hectare sub-division. The 1986 District Settlement Officer letter was of no probative value as its author was not called. Allegations of forgery made roughly 20 years after the vendor's death were unsupported.

p. 5
02

The applicable standard and burden of proof for allegations of fraud

Holding

Fraud must be strictly proved to a standard higher than a balance of probabilities; the onus lies on the party alleging it

Reasoning

The court invoked Sections 107, 109 and 112 of the Evidence Act placing the burden on the Plaintiff, and adopted the Court of Appeal and former East African Court of Appeal authorities requiring strict proof of fraud - something more than a mere balance of probabilities but not beyond reasonable doubt.

p. 4

Legal principles established

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  • Fraud must be specifically pleaded with particulars and distinctly proved; it cannot be inferred from facts
  • The standard of proof of fraud in civil proceedings is higher than a balance of probabilities but below proof beyond reasonable doubt
  • The burden of proving fraud lies on the party alleging it

Court orders

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  1. 1.The suit is dismissed with costs

Authorities

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Legislation

  • Evidence ActSection 107
  • Evidence ActSection 109
  • Evidence ActSection 112

Cases cited (3)

  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR
  • Central Bank of Kenya Limited v Trust Bank Limited & 4 Others
    [1996] eKLR
  • R.G Patel -V- Lalji Makanji
    [1957] EA 314
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (original civil suit; no specific constitutional provision cited)

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, "Priscah Bisinga Ongeta (Suing as the legal Administrator of the Estate of Jackson Ongeta Change (deceased) v Samwel Gisiora Ogoti [2022] KEELC 668 (KLR)", Case Analysis (2022). ELC No. 91 of 2021 (Formerly Environment and Land Court at Kisii Case No. 440 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/668/eng@2022-03-23

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