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ELCPartially AllowedEnvironment and Land Appeal 7 of 2021 (formerly Migori ELC Appeal No E009 of 2021)· [2022] KEELC 4782 (KLR)

Kandiawo v Chianda & another

Environment and Land Court
21 September 2022
GOGMA Ongondo
2,938 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This first appeal, transferred from Migori ELC to the Environment and Land Court at Homa Bay, challenged the judgment of Hon. Celesa Okore, Principal Magistrate, in Oyugis PM ELC No. 6 of 2019. The trial court had ordered removal of a restriction on Central Kasipul/Kamuma/2840, evicted the appellant (1st defendant), and dismissed his counter-claim alleging fraud in the 1st respondent's acquisition of title. The appellant, who had bought the land from the 2nd respondent in 2013-2014, paid the full purchase price and obtained Land Control Board consent but never obtained registration because the 2nd respondent refused to surrender the original title, sought to set aside the judgment and allow his counter-claim, including special damages of Kshs 4,495,000/-. GMA Ongondo J reaffirmed the first appellate court's duty to reconsider evidence afresh. The court endorsed the trial magistrate's finding that the appellant led no evidence of fraud against the 1st respondent, whose registered title under sections 24, 25 and 26 of the Land Registration Act remained absolute and indefeasible; the burden under sections 107 and 108 of the Evidence Act was not discharged. However, the appellant's contract with the 2nd respondent, full payment and consent were uncontested and treated as gospel truth. Applying Hahn v Singh and Jubilee Insurance, the court found special damages proved in part: Kshs 4,050,000/- (value of improvements and valuation fees) awarded against the 2nd respondent, the Kshs 445,000 purchase-price head failing for want of evidence. The appeal succeeded in part, with costs of the appeal and the court below borne by the 2nd respondent under the proviso to section 27(1) of the Civil Procedure Act.

Key legal issues

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01

Whether the appellant proved fraud against the 1st respondent to displace his registered title

Holding

No; the appellant led evidence of fraud only against the 2nd respondent, so the 1st respondent's title remained absolute and indefeasible

Reasoning

The trial magistrate had found the plaintiff's right absolute and indefeasible under sections 24, 25 and 26 of the Land Registration Act. The appellant pleaded fraud but produced no evidence that the plaintiff illegally or fraudulently acquired the property. Under sections 107 and 108 of the Evidence Act, the burden of proving the pleaded fraud lay on the appellant and was not discharged.

p. 5
02

Whether the appellant proved his contract with the 2nd respondent

Holding

Yes; the contract, full payment, and Land Control Board consent were proved and uncontested, treated as gospel truth

Reasoning

The appellant proved a sale contract with the 2nd respondent, full payment of the purchase price, and Land Control Board consent, but the 2nd respondent declined to surrender the original title for transfer. The 2nd respondent did not defend the suit or participate in the appeal, so the evidence stood uncontested and was treated as the gospel truth.

p. 5
03

Whether the appellant proved his claim for special damages of Kshs 4,495,000/-

Holding

Proved in part; Kshs 4,050,000/- awarded against the 2nd respondent only

Reasoning

Special damages must be strictly pleaded and proved per Hahn v Singh. The valuation report valuing the property at Kshs 4,000,000 and the Kshs 50,000 valuation fee receipt were uncontroverted, satisfying the standard per Jubilee Insurance. However, no evidence supported the Kshs 445,000 purchase-price component, so that head failed.

p. 6

Legal principles established

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  • A first appellate court must reconsider the evidence afresh and reach its own conclusions
  • He who asserts or pleads fraud must support the plea by evidence
  • Special damages must be both strictly pleaded and strictly proved before award
  • Where documentary receipts are unavailable, other cogent evidence may prove ownership and value of an item

Court orders

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  1. 1.Appeal succeeds in part with respect to only the issue of special damages awarded to the appellant as against the 2nd respondent
  2. 2.Special damages of Kshs 4,050,000/- awarded to the appellant as against the 2nd respondent
  3. 3.Costs of the appeal and the court below to be borne by the 2nd respondent

Authorities

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Legislation

  • Land Registration Actsections 24, 25(1), 26, 26(1)(a) and (b), 44, 45, 46
  • Evidence Act, Chapter 80 Laws of Kenyasections 107, 108
  • Civil Procedure Act, Chapter 21 Laws of Kenyasection 27(1) proviso

Cases cited (9)

  • Virani t/a Kisumu Beach Resort v Phoenix of East Africa Ltd
    (2004) 2KLR 269
  • National Land Commission v Afrison Export Import Limited and 10 others
    (2019) eKLR
  • Nancy Chepkirui Soi v Gideon Maritim
    (2021) eKLR
  • Selle and another v Associated Motor Boat Co Ltd and others
    (1968) EA 123

    Duty of first appellate court to reconsider evidence afresh and reach its own conclusions

  • Williamson Diamonds Ltd v Brown
    (1970) EA 1

    Duty of first appellate court to reconsider evidence afresh

  • Ahmed Abdulkarim v Member for Lands and Mines
    [1958] EA 436

    Standard of proof of a case and counter-claim

  • Hahn v Singh, Civil Appeal No 42 of 1983
    [1985] KLR 716

    Special damages must be specifically pleaded and strictly proved

  • Jivanji vs Sanyo Electrical Company Limited
    [2003] 1 EA 98

    Restatement of the rule on strict proof of special damages

  • Jubilee Insurance Company of Kenya Ltd v Zahir Habib Jiwan & another
    [2017] eKLR

    Where receipts unavailable, other cogent evidence may prove ownership and value of an item

On appeal from
Oyugis Principal Magistrate's Court
Environment and Land Case No. 6 of 2019
Jurisdiction invoked
First appellate jurisdiction over the subordinate court under the Environment and Land Court Act

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, "Kandiawo v Chianda & another", Case Analysis (2022). Environment and Land Appeal 7 of 2021 (formerly Migori ELC Appeal No E009 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4782/eng@2022-09-21

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