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ELCDismissedKakamega ELCC No. 244 of 2016 (lead file), consolidated with Kakamega HCCC No. 180 of 2009· [2024] KEELC 4955 (KLR)

Odera (Suing as grandson and lega representative of the Estate of Roida Kihanga (Deceased) & another v Vikiru & 3 others (Environment and Land Case 244 of 2016 & Civil Case 180 of 2009 (Consolidated)) [2024] KEELC 4955 (KLR)

Environment and Land Court
27 June 2024
2,118 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A land fraud claim failed because the plaintiff could not strictly prove fraud, and both parties walked away with their suits dismissed.

What this practically means

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Executive summary

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Two consolidated suits concerned Kakamega/Bugonda/2069. Jonathan Mahugi Odera, suing as an heir of Roida Kihanga (the first registered proprietor, who died in 1976), sought cancellation of subsequent titles to Mathews Vikiru Kihanga and Johnstone Ogada Vikiru, alleging the transfers were fraudulent and effected without letters of administration, plus a permanent injunction and an inhibition. Johnstone, the current registered proprietor (since 30th March 2009), in his suit against Nathan Kaduka sought a permanent injunction, eviction, and mesne profits, asserting an indefeasible title. After trial, the court identified two issues: whether fraud was established and whether the reliefs should issue. It held that Johnstone's registered title enjoys Section 24 and Section 26 LRA protection, and that Jonathan, who bore the burden, failed to prove fraud: he never produced the death certificate central to his case, and his testimony on Roida's death was unsupported and internally inconsistent. His belated Section 26(1)(b) argument, raised for the first time in submissions, was rejected as unpleaded. Johnstone's injunctive and eviction reliefs were held moot since he alone occupies the land and there was no live controversy. Both suits were dismissed with no order on costs. Judgment delivered by D. O. Ohungo, J, on 27th June 2024 at Kakamega.

Key legal issues

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01

Whether fraud was established in the transfer of the suit property

Holding

Fraud was not proved; Jonathan produced no death certificate and offered no proof that the transfer occurred after Roida's death or without administration

Reasoning

Jonathan's case rested on the theory that the property was transferred after Roida's death without letters of administration. He never produced the death certificate on which his claim was founded, and his oral testimony about the 1975 death was unsupported. The burden of strictly proving fraud lay on him, and mere inference from the facts is insufficient.

p. 4
02

Whether the Section 26(1)(b) LRA nullification argument could be entertained

Holding

No - the argument was not founded on the pleadings and was raised for the first time in submissions

Reasoning

Jonathan argued at submissions stage that the transfer to Johnstone was un-procedural and liable to nullification under Section 26(1)(b) of the Land Registration Act. The court held this ground was never pleaded, and parties are bound by their pleadings, citing Raila Amolo Odinga v IEBC.

p. 4
03

Whether Johnstone's injunctive and eviction reliefs should issue

Holding

They are moot because Johnstone is the sole occupant of the suit property

Reasoning

Johnstone sought a permanent injunction and eviction of Nathan Kaduka. However, both witnesses confirmed that Jonathan is not resident on the land and that Johnstone alone is in occupation and use, so there is no live controversy for the court to resolve and the reliefs cannot issue.

p. 5

Legal principles established

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  • Fraud must be pleaded, particularised and strictly proved to a standard higher than balance of probabilities but lower than beyond reasonable doubt; fraud cannot simply be inferred from the facts
  • Parties are bound by their pleadings and cannot raise a new ground of nullification at submissions stage
  • A matter is moot where there is no live controversy such that the court's decision would not resolve any actual and present controversy

Court orders

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  1. 1.Kakamega ELCC No. 244 of 2016 is dismissed
  2. 2.Kakamega HCCC No. 180 of 2009 is dismissed
  3. 3.No order on costs

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 26
  • Land Registration ActSection 26(1)(a) and (b)

Cases cited (5)

  • 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
  • Raila Amolo Odinga & Another vs. IEBC & 2 others
    [2017] eKLR
  • Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated))
    [2023] KESC 40 (KLR) (16 June 2023) (Judgment)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land, following transfer of Kakamega HCCC Nos. 154 and 180 of 2009 from the High Court

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, "Odera (Suing as grandson and lega representative of the Estate of Roida Kihanga (Deceased) & another v Vikiru & 3 others (Environment and Land Case 244 of 2016 & Civil Case 180 of 2009 (Consolidated)) [2024] KEELC 4955 (KLR)", Case Analysis (2024). Kakamega ELCC No. 244 of 2016 (lead file), consolidated with Kakamega HCCC No. 180 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4955/eng@2024-06-27

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