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ELCDismissed· [2023] KEELC 762 (KLR)

Owiti (Suing as the Administrator ad litem of the Estate of Peter Otieno Owiti) v Owiti & 2 others (Environment and Land Appeal E021 of 2022) [2023] KEELC 762 (KLR)

Environment and Land Court
16 February 2023
AKA. Y. Koross
2,747 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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The Environment and Land Court dismissed a brother's claim that a family land title was obtained by fraud, because fraud must be clearly pleaded, proved, and aimed at the right parties.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Siaya against a Trial Magistrate's judgment dismissing the appellant's claim. The appellant had sued over land parcel East Yimbo/Nyamonye/3679, alleging that his deceased brother Peter had been apportioned the land by their father, but that the register was altered by cancelling Peter's name and substituting that of the deceased Okello Owiti. He sought a declaration that Owiti's registration was fraudulent, cancellation of the title, issuance of a title in Peter's name, a permanent injunction and costs. The Trial Magistrate dismissed the claim for failure to prove fraud, though it also found the 1st respondent's counterclaim failed. On appeal, the court adopted the two grounds of appeal as issues. On the first, it held that although the appellant's written submissions never reached the Trial Court file due to a registry oversight, submissions are not evidence, and the Trial Magistrate analysed the evidence and applied the law, so no prejudice arose. On the second, the court found fraud was not proved to the required standard: the green card showed a 1st registration with no subsequent dealings; the 2nd respondent's function was limited to registering titles under Section 28 of the Land Adjudication Act; Section 13(5) empowered the 1st respondent to collect the title as a successor; and the adjudication record was never produced. Critically, the office charged with adjudication, Owiti's estate and the director of land adjudication were never joined, so the suit was bound to fail. The appeal was dismissed entirely with each party bearing their own costs, given the parties' familial relationship.

Key legal issues

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01

Effect of the Trial Court not considering the appellant's submissions

Holding

No prejudice was suffered because submissions are not evidence; the Trial Magistrate analysed the evidence and applied the law

Reasoning

The appellant's filed submissions never reached the Trial Court file due to a registry oversight. The court held that submissions are merely arguments and not part of the evidence. The Trial Magistrate had a duty to apply the law and evidence regardless, and did so. Consequently, the appellant suffered no prejudice.

p. 4
02

Whether fraud was proved against the 1st and 2nd respondents to the required standard

Holding

Fraud was not proved; the 2nd respondent merely issued title documents mandatorily and the 1st respondent merely collected the title, both acts lawful under the Land Adjudication Act

Reasoning

The green card showed a 1st registration with no subsequent dealings. The 2nd respondent's role was confined to registering titles per the adjudication register under Section 28 of the Land Adjudication Act, and Section 13(5) empowered the 1st respondent to collect the title as a successor. The adjudication record was not produced, and the parties responsible for the adjudication process were not joined.

p. 5
03

Effect of failure to join necessary parties to the proceedings

Holding

In the absence of Owiti's estate and the director of land adjudication and settlement, the appellant's suit was bound to fail

Reasoning

The changes to the no objection register, by which Peter's name was replaced with Owiti's, could only be attributed to Owiti's estate and the director of land adjudication and settlement or a delegated office. Neither was joined as a party, so the suit against the 1st and 2nd respondents could not succeed.

p. 6

Legal principles established

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  • Submissions are not part of the evidence; a court may determine a case without them, and their absence does not prejudice a party where the court analysed the evidence and applied the law
  • Fraud must be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt

Court orders

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  1. 1.The appeal is disallowed and dismissed entirely
  2. 2.The judgment of the Trial Court is upheld
  3. 3.Each party shall bear their respective costs

Authorities

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Legislation

  • Land Registration ActSection 26
  • Land Registration ActSection 7(6) and (7)
  • Land Adjudication ActSection 28
  • Land Adjudication ActSection 13(5)
  • Land Adjudication ActSections 26 and 26(A)
  • Civil Procedure RulesOrder 2 Rules 4 and 10

Cases cited (7)

  • Insurance Company of East Africa v The Attorney General & 3 others
    HCCC 135 of 1998
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR; Civil Appeal Number 246 of 2013
  • Joseph Arap Ngok v Justice Moijo ole Keiwua & 5 others
    Civil Appeal Number 60 of 1997
  • Elijah Makeri Nyangwara v Stephen Mungai Njuguna & another
    (2013) eKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    (2015) eKLR
  • Mbogo & another v. Shah
    [1968] EA 98
  • Nancy Wambui Gatheru v Peter W Wanjere Ngugi
    Nairobi HCCC No. 36 of 1993
On appeal from
Magistrates' Court (Trial Court)
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment (Memorandum of Appeal dated 01/07/2022)

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, "Owiti (Suing as the Administrator ad litem of the Estate of Peter Otieno Owiti) v Owiti & 2 others (Environment and Land Appeal E021 of 2022) [2023] KEELC 762 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/762/eng@2023-02-16

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