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ELCDismissedKakamega ELC suit of 2014 (plaint dated 19th November 2014)· [2024] KEELC 3908 (KLR)

Lusala v Mutumbi & 2 others (All sued as administrators of the Estate of the Late Isaac Lijoodi Mutumbi) (Environment and Land Case 641 of 2014) [2024] KEELC 3908 (KLR)

Environment and Land Court
30 April 2024
2,233 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued the defendants, as administrators of the estate of ILM (deceased), alleging he purchased land known as Kakamega Town Block B/III/2X from the deceased before the deceased's death and that the defendants fraudulently transferred it to the third defendant to defeat his claim. He sought declarations of ownership and that the transfer was null and void, rectification of the register, an injunction, eviction and general damages for trespass. The defendants denied purchasing/ownership claims, asserting the deceased owned a different parcel which was transferred to the third defendant during his lifetime. The court framed two issues: whether illegality and fraud were established and whether the reliefs should issue. Applying the settled standard that fraud must be pleaded, particularised and strictly proved above a balance of probabilities, the court found the plaintiff's sale agreement concerned 'Plot No: B III/2X Milimani', a parcel the land registrar testified does not exist in the registry records, and not Kakamega Town Block B/III/2X. The plaintiff produced no title, search or certified register for the property he claimed. The evidence of PW2 that the two descriptions referred to one parcel was given little weight as he was not a registry officer. The certified register showed the third defendant became proprietor of Kakamega Town Block /III/2X on 18th February 2004, long before the deceased's death. Fraud was not established and all reliefs were refused. The suit was dismissed with costs to the first and third defendants; no costs were awarded to the second defendant, who did not participate in the hearing.

Key legal issues

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01

Proof of fraud and illegality

Holding

The plaintiff failed to establish fraud or illegality in the transfer of the suit property to the third defendant

Reasoning

Fraud must be pleaded, particularised and strictly proved to a standard above balance of probabilities. The particulars of fraud all concerned Kakamega Town Block B/III/2X, a property not mentioned in the sale agreement. The land registrar testified no parcel known as Kakamega Town Block B/III/2X exists, and the plaintiff produced no title, search or certified register for it. Fraud cannot be inferred from facts alone.

p. 4
02

Identity of the property contracted for

Holding

The sale agreement was in respect of 'Plot No: B III/2X Milimani', not Kakamega Town Block B/III/2X, and parties must be held to their bargain

Reasoning

The agreement expressly concerned Plot No: B III/2X Milimani. If the parties intended Kakamega Town Block B/III/2X, nothing would have been easier than to state so. The court respected the parties' freedom of contract, especially where one party is deceased. PW2's evidence on the parcels being one and the same was of little use as he was not from the land registry.

p. 4
03

Transfer to the third defendant

Holding

The third defendant became registered proprietor on 18th February 2004, during the deceased's lifetime, per the certified register

Reasoning

The certified copy of the register and the land registrar's testimony showed entry number 7 dated 18th February 2004 transferred the parcel to the third defendant, long before the deceased's death in 2009. Even assuming the plaintiff referred to Kakamega Town Block /III/2X, he showed he purchased no such parcel and could not demand its transfer.

p. 4

Legal principles established

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  • Fraud must be specifically pleaded and strictly proved to a standard higher than balance of probabilities but lower than beyond reasonable doubt
  • Fraud cannot be merely inferred from facts
  • Courts uphold the parties' freedom of contract as expressed in their agreement

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the first and third defendants
  2. 2.No costs awarded to the second defendant since she did not participate in the hearing

Authorities

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Cases cited (4)

  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] eKLR
  • John Mbogua Getao v Simon Parkoyiet Mokare & 4 others
    [2017] eKLR
  • Kinyanjui Kamau v George Kamau Njoroge
    [2015] eKLR
  • Printing & Numerical Registering Co. v. Sampson
    (1875) L.R. 19 Eq. 462
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim concerning land within Kakamega

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, "Lusala v Mutumbi & 2 others (All sued as administrators of the Estate of the Late Isaac Lijoodi Mutumbi) (Environment and Land Case 641 of 2014) [2024] KEELC 3908 (KLR)", Case Analysis (2024). Kakamega ELC suit of 2014 (plaint dated 19th November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3908/eng@2024-04-30

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