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ELCDismissedNot stated in judgment (Kerugoya ELC)· [2022] KEELC 3976 (KLR)

Gatumu v The County Surveyor, Kirinyaga County & 2 others (Environment & Land Case 195 of 2016) [2022] KEELC 3976 (KLR)

Environment and Land Court
6 May 2022
2,843 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 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 it clearly and had already lost the same land dispute years earlier.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of land parcel Kabare/Mutige/173, sued the Defendants (including the Land Registrar, Kirinyaga) seeking declarations that the May 2010 alterations to the mutation form and Survey Map Sheet No 5 (121/IV/22/6), whereby a quarter-acre portion of his land was excised and annexed to Kabare/Mutige/156, were fraudulent, unlawful and void; annulment of the resulting register entries; and damages for negligence and/or fraud. The Defendants' evidence was that the amendments to the Registry Index Map were effected pursuant to an award of the Provincial Land Disputes Appeals Committee (Central Province) in Appeal Case No 170/2000, which upheld the Gichugu Land Disputes Tribunal's decision that the disputed portion belonged to Kabare/Mutige/156, and implemented through a court order of June 22, 2009 directing the Executive Officer, Kerugoya to sign the necessary documents. The court framed three issues: proof of fraud, entitlement to the orders sought, and costs. Applying the principle in Vijay Morjaria and Kinyanjui Kamau, the court held that fraud must be specifically pleaded and distinctly proved to a standard above balance of probabilities. The Plaintiff admitted being party to the tribunal proceedings, was the appellant before the Appeals Committee, and never exercised his right to appeal to the High Court within 60 days. He was found guilty of material non-disclosure, indolence, forum shopping and abuse of process, and of failing to join the registered owner of Kabare/Mutige/156. Fraud was not proved. The suit was dismissed with costs to the Defendants.

Key legal issues

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01

Proof of fraud to the required standard

Holding

The Plaintiff failed to discharge the burden of specifically and strictly proving fraud; the amendments were effected pursuant to a lawful tribunal award implemented by a court order

Reasoning

Fraud must be specifically pleaded and distinctly proved to a standard above balance of probabilities. The Defendants proved the amendments to the Registry Index Map flowed from the Provincial Land Disputes Appeals Committee award in Appeal Case No 170/2000, implemented via an order of June 22, 2009 directing the Executive Officer to sign the mutation documents. The Plaintiff admitted being party to those proceedings and never appealed within 60 days as allowed on points of law.

p. 6
02

Effect of prior tribunal/Appeals Committee proceedings and the Plaintiff's failure to appeal

Holding

The Plaintiff, having participated in and lost the prior proceedings and failed to appeal within 60 days on points of law, could not relitigate the same issues; his suit was stale, defective and an abuse of process

Reasoning

The Plaintiff was the appellant before the Provincial Land Disputes Appeals Committee which upheld the tribunal's decision that the disputed portion belonged to Kabare/Mutige/156. He was notified of the right to appeal to the High Court within 60 days on points of law but did not. Raising the same challenge 21 years later constituted indolence, forum shopping and abuse of process, compounded by material non-disclosure of the prior proceedings and failure to join the registered owner of Kabare/Mutige/156.

p. 5
03

Costs

Holding

Costs follow the event; no good reason to deny the Defendants costs given the Plaintiff's unclean hands and non-disclosure

Reasoning

Under Section 26(1) of the Civil Procedure Act costs of and incidental to suits are in the court's discretion and follow the event unless the court for good reason otherwise orders. The court found the Plaintiff approached the court with unclean hands by failing to fully disclose material facts, and so denied him any indulgence on costs.

p. 6

Legal principles established

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  • Fraud must be specifically pleaded, with particulars on the face of the pleading, and distinctly proved; it cannot be inferred from the facts
  • The standard of proof for allegations of fraud in civil cases is higher than a balance of probabilities but lower than beyond reasonable doubt
  • Costs follow the event unless the court for good reason otherwise orders

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The Plaintiff to pay the Defendants' costs of the suit

Authorities

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Legislation

  • Evidence ActSection 109
  • Civil Procedure ActSection 26(1)
  • Land Disputes Act CAP 303ASection 3

Cases cited (7)

  • Moses Makokha Osanya v Elekia Mabosio Marenga
    (2018) eKLR
  • Joseph Karobia Gicheru v Michael Gachoki Gicheru
    (2013) eKLR
  • Gichinga Kibutha vs Caroline Nduku
    (2018) eKLR
  • Edward Kamau Muchoki & another v County Executive Officer, Ministry of Roads Housing & Public Works & another
    (2018) eKLR
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • Kinyanjui Kamau vs George Kamau
    [2015] eKLR
  • Ndolo vs Ndolo
    (2008) 1 KLR (G & F) 742
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly cited 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, "Gatumu v The County Surveyor, Kirinyaga County & 2 others (Environment & Land Case 195 of 2016) [2022] KEELC 3976 (KLR)", Case Analysis (2022). Not stated in judgment (Kerugoya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3976/eng@2022-05-06

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