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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 1628 (KLR)

Kiplagat v Ratemo (Sued in her capacity as the legal representative of Thomas Ratemo Oira) (Environment & Land Case 38 of 2012) [2024] KEELC 1628 (KLR)

Environment and Land Court
14 March 2024
AOA.O. Ombwayo
9,135 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer's fraud claim failed because allegations of fraud must be proven with specific, compelling evidence—not just suspected from circumstances.

What this practically means

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Executive summary

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The plaintiff, Lawi Kigen Kiplagat, sued Ratemo Amenya, as legal representative of the estate of Thomas Ratemo Oira (deceased), over the sale of Plot No. 34 Miti Mingi Settlement Scheme No. 722, Naivasha (now Nakuru/Miti Mingi Scheme/34), pursuant to an agreement dated 24th June 2008 at a consideration of Kshs 7,600,000. He alleged that the deceased fraudulently procured registrable documents without his knowledge or consent, forged documents, failed to give a professional undertaking, took possession before completion and illegally obtained a title deed during the subsistence of court orders restraining him. He sought a perpetual injunction, declarations of ownership and expiry of the agreement by effluxion of time, cancellation of title, eviction, surrender of documents, general damages and costs. The defendant denied the fraud, contending that the full purchase price was paid, that possession and transfer were lawfully effected on 8th December 2008, and that the plaintiff was declared bankrupt. Two witnesses for the defendant, including a bank officer who proved deposits totalling Kshs 2,196,000 into the plaintiff's account and a Deputy Director of Land Adjudication who produced the original SFT files, supported the defence. The court framed one principal issue: whether the plaintiff proved fraud, misrepresentation and illegality. Applying section 107 of the Evidence Act and the Court of Appeal's decision in Vijay Morjaria, the court held that fraud must be specifically pleaded and strictly proved and found the plaintiff had failed to prove his claim. The Amended Plaint dated 9th July 2021 was dismissed with costs on 14th March 2024.

Key legal issues

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01

Whether the plaintiff proved fraud, misrepresentation and illegality against the defendant to the standard required

Holding

The plaintiff failed to discharge the burden of strictly proving fraud; the suit was dismissed.

Reasoning

The court applied section 107 of the Evidence Act and the principle in Vijay Morjaria v Nansingh Madhusingh Darbar that fraud must be specifically pleaded and distinctly proved. Although the plaintiff alleged fraudulent procurement of registrable documents and forgery, the evidence - including bank deposits totalling Kshs 2,196,000 proved by DW3 and documentation of payments to the Settlement Fund Trustees - did not establish the pleaded particulars of fraud to the required standard.

p. 15
02

Whether the agreement of 24th June 2008 expired by effluxion of time and the transfer was null and void

Holding

Not determined in the plaintiff's favour; the alternative claim fell with the dismissal of the suit.

Reasoning

The plaintiff's alternative case was that the 90-day completion period expired without payment of the balance and without any written variation. The defendant's evidence showed deposits into the plaintiff's bank account between 2008 and 2010 and payments of the SFT loan and development charges, which the court accepted, undermining the claim of non-payment and non-completion. The alternative claim was consequently not upheld.

p. 15

Legal principles established

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  • A claim based on fraud must be specifically pleaded and strictly proved; fraud cannot be left to be inferred from the facts.
  • He who alleges must prove - the burden of proof lies on the party asserting facts (section 107 of the Evidence Act).

Court orders

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  1. 1.The Amended Plaint dated 9th July, 2021 is dismissed
  2. 2.The plaintiff to pay the costs of the suit to the defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (constitutional/statutory provision not expressly stated in the judgment)

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, "Kiplagat v Ratemo (Sued in her capacity as the legal representative of Thomas Ratemo Oira) (Environment & Land Case 38 of 2012) [2024] KEELC 1628 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1628/eng@2024-03-14

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