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ELCDismissedEnvironment & Land Case 24 of 2019· [2023] KEELC 21163 (KLR)

Ikala & another v Ambani (Sued through his personal representative/administratrix Gladys Maraga alias Maraka); Sakha & another (Interested Parties)

Environment and Land Court
31 October 2023
DOD. O. Ohungo
1,094 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reopen a settled land case because family members failed to prove fraud and should pursue their inheritance claims in the succession cause instead.

What this practically means

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Executive summary

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The claimants commenced an originating summons dated 26th March 2019 claiming 0.07 hectares of Tiriki/Cheptulu/805 by adverse possession, seeking a declaration of ownership, registration in their place of the respondent, and an order for subdivision and transfer. On 24th April 2019 the parties filed a consent settling the suit by entering judgment in terms of prayers 2 and 3, with the claimants bearing subdivision and transfer expenses and each party meeting own costs; the consent was adopted on 14th May 2019 and a decree issued on 17th May 2019. On 31st May 2023, Michael Musuku Sakha (a son of the deceased) and Gladys Shanyisa (widow of the deceased's son) moved the court seeking stay of the consent orders and of Hamisi Succession Cause No. 21 of 2017, joinder as interested parties, consolidation of three ELC files, setting aside of the consent and reopening of the suit, and an injunction against dealings with the suit property and resultant numbers. They alleged the consent was obtained through fraud, non-disclosure of material facts and without involving other beneficiaries. The court held that the applicants were not parties to the concluded suit, that fraud must be pleaded and proved above a balance of probabilities, and that no such proof was offered. It characterized the application as an offshoot of estate disputes properly resolved in the succession cause. The Notice of Motion was dismissed with no order as to costs given the relationship between the parties.

Key legal issues

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01

Whether the consent judgment of 14th May 2019 should be set aside for alleged fraud and non-disclosure

Holding

The application was dismissed; the applicants, who are not parties to the suit, failed to prove fraud to the requisite standard.

Reasoning

The court noted the suit was concluded on 14th May 2019 upon adoption of the consent. The applicants claimed the consent was procured by fraud, non-disclosure and without involving other beneficiaries. The court held fraud is a serious allegation requiring proof above a balance of probabilities, and the applicants offered no proof to that standard. The dispute was held to be an estate matter for the succession cause.

p. 3

Legal principles established

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  • Fraud must be pleaded and proved to a standard above balance of probabilities but not beyond reasonable doubt.
  • Disputes among beneficiaries of a deceased's estate should be resolved within the succession cause.

Court orders

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  1. 1.Notice of Motion dated 31st May 2023 dismissed
  2. 2.No order as to costs

Authorities

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Cases cited (2)

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

    Fraud must be pleaded and proved to a standard above balance of probabilities but not beyond reasonable doubt.

  • John Mbogua Getao v Simon Parkoyiet Mokare & 4 others
    [2017] eKLR

    Same proposition on the standard of proof of fraud.

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) Constitution; ELC 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, "Ikala & another v Ambani (Sued through his personal representative/administratrix Gladys Maraga alias Maraka); Sakha & another (Interested Parties)", Case Analysis (2023). Environment & Land Case 24 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21163/eng@2023-10-31

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