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ELCDismissedEldoret ELC Appeal (Memorandum of Appeal dated 22nd September, 2022)· [2024] KEELC 5343 (KLR)

Sawe & another v Kenei & another (Environment and Land Appeal E030 of 2022) [2024] KEELC 5343 (KLR)

Environment and Land Court
16 July 2024
6,854 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret dismissed an appeal challenging a land sale, confirming that fraud claims must be specifically pleaded and strictly proved.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Eldoret against the judgment of Hon. Naomi Wairimu, Senior Principal Magistrate, delivered on 23rd August 2022 in Eldoret CMC ELC Case No. 223 of 2018, which had dismissed the Appellants' claim and allowed the 1st Respondent's Counterclaim over Moiben/Moiben Block 5(Merewet)/273 measuring approximately 4 Acres. The Appellants contended that the 1st Appellant sold only 2 Acres to the 2nd Respondent, who improperly sold the entire parcel to the 1st Respondent through fraud and misrepresentation, and that the trial court was biased. The court framed three issues: bias, extent of the sale, and fraud. On bias, it found none - discrediting an uncertified payslip and adopting the Respondent's issues was not bias, submissions not being evidence. On the acreage, the documentary trail (the 1999 sale agreement for the entire 1.6 Ha and the addendum of 30th August 1999 varying only the price) showed the entire property was sold; no written record of any reduction to 2 Acres existed, and possession evidence did not displace the 1st Respondent's position. On fraud, the court held the allegations were not particularised as required by Order 2 Rule 10(1)(a) and were not strictly proved to the elevated standard; the blindness allegation was mere suspicion and the Land Registrar was not called. The appeal was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Whether the trial court displayed bias in favour of the 1st Respondent

Holding

No bias was established; discrediting an uncertified payslip and adopting the 1st Respondent's issues (which covered the Appellants' issues) did not amount to bias

Reasoning

The Appellants inferred bias from the magistrate's treatment of the payslip and her adoption of the Respondent's issues. The court found the payslip was uncertified and showed a shamba loan without indicating which land it related to; facts ascertainable at a glance cannot found an inference of bias. Adoption of the Respondent's five issues adequately covered the Appellants' three issues. Submissions are not evidence, and a judgment rests on pleadings, evidence and law, not submissions.

p. 7
02

Whether the 1st Appellant sold 2 Acres or the entire 4-Acre suit property

Holding

The 1st Appellant sold the entire suit property to the 2nd Respondent; the alleged reduction to 2 Acres was not proved

Reasoning

The 1999 agreement showed sale of the entire 1.6 Ha (approx. 4 Acres), and the addendum of 30th August 1999 varying only the purchase price was signed by the 1st Appellant without any change to acreage. No written record of any reduction of the acreage existed despite the parties reducing the price variation into writing. Possession evidence (the father buried on a different parcel; PW3 a mere cultivator) did not establish the 2nd Appellant's ownership of any portion.

p. 8
03

Whether the 1st Respondent obtained title by fraud and misrepresentation

Holding

No; the fraud was not particularised in the pleadings and the allegations were not proved to the required standard

Reasoning

The Amended Plaint alluded to fraud but did not particularise it as required by Order 2 Rule 10(1)(a), rendering such claims stillborn. Even considering the allegations, the Appellants failed to prove the 1st Appellant was blind or tricked into signing transfer forms; the alleged doctor's evidence never came. The Land Registrar was not called to prove absence of Land Control Board consent. The handwriting and lack of attestation of the 2004 agreement did not offend Section 3(3) of the Law of Contract Act, and privity cuts both ways.

p. 11

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and reach its own conclusions
  • Submissions are not evidence and do not constitute the basis of a judgment
  • Fraud must be specifically pleaded with particulars and strictly proved to a standard higher than the ordinary balance of probabilities
  • The burden of proving an allegation of fraud lies on the party alleging it, as would fail if no evidence were given

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the 1st Respondent
On appeal from
Chief Magistrate's Court, Eldoret (Senior Principal Magistrate)
Eldoret CMC ELC Case No. 223 of 2018
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment (ELC appeal from the magistrates' 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, "Sawe & another v Kenei & another (Environment and Land Appeal E030 of 2022) [2024] KEELC 5343 (KLR)", Case Analysis (2024). Eldoret ELC Appeal (Memorandum of Appeal dated 22nd September, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5343/eng@2024-07-16

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