Stephen Waweru Mwangi & Another v Embakasi Ranching Company Limited & Another (Appeal)
The bottom line
#The Environment and Land Court dismissed the buyers' land fraud appeal because they never pleaded or proved specific fraud details.
What this practically means
#Executive summary
#Key legal issues
#Tenability of the 1st Appellant's appeal
The 1st Appellant filed no proper Memorandum of Appeal (the memorandum was expressly that of the 2nd Appellant only) and, having sold the suit plot, had no standing or legitimate claim
The preamble of the Memorandum of Appeal records only the 2nd Appellant as aggrieved; the 1st Appellant's name appears merely in the title. Further, having sold Plot P4647 to the 2nd Appellant in 1993 and neither attending court nor tendering evidence, the 1st Appellant was divested of any ownership rights and had no legitimate complaint against the impugned judgment.
Pleading and proof of fraud
No particulars of fraud were pleaded in the Amended Plaint as required by Order 2 Rule 10(1) of the Civil Procedure Rules, and no credible evidence of fraud was tendered; the fraud claim failed
A party alleging fraud must comply with Order 2 Rule 10(1) by pleading specific particulars; absent such pleading, no evidence of fraud could be tendered. Even on evidence, the 2nd Appellant conceded he did not have the original map and could not prove the alleged fraudulent amendment. Fraud must be distinctly alleged and distinctly proved and cannot be inferred.
Whether the Chief Magistrate erred in dismissing the Appellants' claim
The Chief Magistrate correctly appreciated and analysed the evidence; the Appellants failed to discharge the evidential burden, and the altered share certificate tainted the 2nd Appellant's claim
During cross-examination PW1 admitted the share certificate number 12994 appeared altered, reading two shares instead of one; only the 1st Appellant, the initial allottee who never testified, could explain the alteration. Without the original map, the 2nd Appellant could not prove Plot 4647 was removed by amendment. The evidential burden on the Appellants was not discharged.
Costs order of the trial court
The award of costs to the successful Respondents was a proper exercise of discretion under Section 27 of the Civil Procedure Act; costs follow the event
Section 27 of the Civil Procedure Act vests discretion on costs in the court, with costs following the event unless the court for good reason orders otherwise. Having dismissed the plaintiffs' suit and allowed the counterclaim, the learned Chief Magistrate was bound to award costs to the successful parties; no improper exercise of discretion was discerned.
Legal principles established
#- Fraud must be specifically pleaded with particulars on the face of the pleading and must be distinctly proved; it cannot be left to inference
- Allegations of fraud attract a standard of proof higher than a balance of probabilities, though not beyond reasonable doubt
- The burden of proof lies on the person who would fail if no evidence were given on either side, and the evidential burden must first be discharged by the party asserting the claim
- Costs follow the event and an appellate court will not interfere with a trial court's discretion on costs absent misdirection or injustice
Court orders
#- 1.The Appeal is dismissed in its entirety, with costs to the Respondents
- 2.The Judgment of the Chief Magistrate is affirmed
- On appeal from
- Chief Magistrate's Court at Milimani, Nairobi
- CMCC No. 1359 of 2016
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (appeal from the Chief Magistrate's Court decision of 23rd November 2021)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Waweru Mwangi & Another v Embakasi Ranching Company Limited & Another (Appeal)", Case Analysis (2023). CMCC Appeal (Memorandum of Appeal dated 1st September 2021) from CMCC No. 1359 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/46/eng@2023-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.