George Meme M'Eliungu v Julius Murugi Thikanyi & 3 others

Relying on Sections 107 and 109 of the Evidence Act and the authority of R.G Patel v Valji Makanji, the court held that allegations of fraud demand proof to a standard higher than a balance of probabilities. The appellant made only vague, general allegations without calling the seller of his land or tendering tangible evidence of any fraudulent manifestation. The reports of the land registrar and surveyor remained unchallenged since 2008.

The provincial appeals committee itself had found it lacked jurisdiction over the dispute which fell under titled land. Boundary disputes over registered land under Sections 14-21 of the Land Registration Act lie first with the Land Registrar. An aggrieved party may then seek judicial review under Article 47 of the Constitution, the Fair Administrative Action Act, or Order 53 of the Civil Procedure Rules.

The appellant was present when the registrar and surveyor visited the locus in quo and fixed the boundary. He admitted he had no problem with implementation so long as his title was not affected. He did not appeal or seek judicial review of those decisions, and only raised fraud six years later when the counterclaim sought implementation of the reports.

Citing Mutinda Mule and Raila Odinga, the court held parties are bound by their pleadings. The cause of action was silent on which specific decisions were being challenged. The appellant neither filed set-off nor third-party proceedings nor sought indemnity against the 2nd–4th respondents as codefendants to the counterclaim for the erroneous title issued in 2001.