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ELCDismissedEnvironment & Land Case 501 of 2017· [2022] KEELC 13790 (KLR)

Tum & 2 others v Towett & 5 others

Environment and Land Court
25 October 2022
CMCG Mbogo
5,150 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a land fraud claim because the buyers had no documents, records, or expert evidence to prove forgery.

What this practically means

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Executive summary

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In this ruling, the Environment and Land Court at Narok (CG Mbogo, J) dismissed the plaintiffs' suit arising from the purchase of land from the 3rd defendant between 1984 and 1990. The plaintiffs claimed they and the 1st and 2nd defendants formed an unregistered group which contributed Kshs 392,000 to purchase LR Cis Mara/Ilmotiok/462, which was subdivided into five portions for settlement. They alleged that in 2008 the 1st, 2nd, 3rd and 4th defendants fraudulently amalgamated the portions into LR Cis Mara/Ilmotiok/4521 and re-subdivided it, transferring less land to the plaintiffs than their contributions and allocating parcel 4551 to the 6th defendant, a non-contributor. They sought cancellation of all transactions, re-mutation into five portions, and costs. The court framed two issues: whether fraud was proved, and whether the plaintiffs were entitled to the orders sought. Applying Section 26(1) of the Land Registration Act, Section 109 of the Evidence Act, and the strict-proof standard in R.G. Patel v Lalji Makanji, the court held fraud had not been proved: the plaintiffs produced no records or minutes of contributions, no survey evidence, did not produce their title deeds, were silent on parcel 875, and called no handwriting expert to prove forgery. Nor had fraud been reported to the relevant agencies. The further amended plaint dated February 7, 2018 was accordingly dismissed in its entirety, with each party bearing their own costs to foster trust between the parties.

Key legal issues

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01

Whether the plaintiffs proved the alleged fraud in the amalgamation and subdivision of LR Cis Mara/Ilmotiok/4521

Holding

Fraud not proved; plaintiffs failed to produce records, minutes, title deeds or expert evidence of forgery

Reasoning

The court found the registered owner sold land to the group members, but the plaintiffs produced no evidence of computation of contributions, no survey evidence, did not produce title deeds in their possession, remained silent on parcel 875, and produced no expert to prove forgery of signatures. Allegations of fraud were thus unsupported by cogent evidence.

02

Whether the plaintiffs are entitled to the prayers sought

Holding

Not entitled; further amended plaint dismissed

Reasoning

Because fraud was not proved to the elevated standard, the foundation for cancelling the impugned transactions and ordering fresh mutation collapsed. The court found the further amended plaint lacking in merit, dismissed it in its entirety, and declined to award costs so as to foster trust among the parties.

Legal principles established

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  • Allegations of fraud must be strictly proved; the standard is higher than a mere balance of probabilities but falls short of proof beyond reasonable doubt
  • A certificate of title can only be challenged on the ground of fraud or misrepresentation to which the registered proprietor is proved to be a party
  • Purchasers of land must exercise due diligence and diligently pursue transfer of the property upon payment of the purchase price

Court orders

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  1. 1.The further amended plaint dated February 7, 2018 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Evidence ActSection 109
  • Law of Contract ActSection 3

Cases cited (14)

  • Macharia Mwangi Maina & 87 others vs Davidson Mwangi Kagiri
    [2014] eKLR

    Constructive trust arising from common intention in group land purchase

  • Yaxley versus Gotts
    [2000] Ch. 162

    Constructive trust and oral land agreements

  • Vijay Morjaria versus Nansingh Madhusingh Darbar & Another
    [2000] eKLR

    Fraud must be specifically pleaded and proved

  • Ratilal Gordhanbhai Patel versus Lalji Makanji
    [1957] EA 314-317

    Strict proof of fraud

  • Mamta Peeush Mahajan versus Yashwant Kumari Mahajan
    [2017] eKLR

    Relief where fraud is proved

  • Kinyanjui Kamau versus George Kamau
    [2015] eKLR

    Burden of proving fraud

  • Esther Njiru & Another versus Leonard Gatei
    [2014] eKLR

    Proof of fraud in land dealings

  • Kuria Kiarie & 2 others versus Sammy Magera
    [2018] eKLR

    Fraud must be proved, mere allegations do not suffice

  • Ndolo versus Ndolo
    [2008] KLR (G&F) 742

    Standard of proof of fraud

  • Gudka versus Dodhia
    Civil Appeal No 21 of 1980

    Proof of fraud

  • Mutiria Karumbai Macaw versus James Njagi Makembo & 3 others
    [2018] eKLR

    Exercise of statutory mandate in good faith

  • Katende - vs - Haridas and Company Limited
    (2008) EA 173

    What constitutes fraud in registered land transactions; participation and imputed fraud

  • Evans Otieno Nyakwana vs Cleophas Bwana Ongaro
    [2015] eKLR

    Burden of proving forgery lies on the party alleging it

  • Central Bank of Kenya Ltd vs Trust Bank Ltd and 4 Others
    Nai Civil Appeal No 215 of 1996 (UR)

    Heavier onus of prima facie proof where fraud is alleged

Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2)(b) of the Constitution (implied; not expressly invoked in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Tum & 2 others v Towett & 5 others", Case Analysis (2022). Environment & Land Case 501 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13790/eng@2022-10-25

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