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ELCDismissedMemorandum of Appeal dated 26th July 2023 (Homa Bay; case number not stated in judgment)· [2024] KEELC 5694 (KLR)

Dudi (Suing as the administrator of the Estate of Joseph Kasera Obago alias Kasera Obago - Deceased) v Joel(Sued as the administrator of the Estate of the Late Consolata Awino Opiyo) & 4 others (Environment and Land Appeal E004 of 2023) [2024] KEELC 5694 (KLR)

Environment and Land Court
25 July 2024
1,869 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Homa Bay dismissed a landowner's appeal because he failed to produce key evidence proving fraud in a land registration.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Homa Bay against the judgment of Hon E. M. Onzere, PM, delivered on 27th June 2023, dismissing the appellant's suit claiming the suit land on the basis that he had failed to prove his case on a balance of probability. The appellant, whose grandfather (deceased 2) originally occupied the land, alleged fraud in the registration of the 1st respondent (deceased 1) and sought quashing of the trial judgment. The respondents' case, supported by a sale agreement of 17th October 1998 (DExh 4), was that deceased 2 sold 1½ acres to Joel Opiyo (deceased 3) for his mother, deceased 1, who was duly registered following determination of objection No. 1235. The court, applying its duty on a first appeal to re-evaluate the evidence afresh (Selle v Associated Motor Boat Co; Williamson Diamonds v Brown), found that the appellant failed to produce the objection proceedings he complained were disregarded, never applied for summons to the Land Adjudication Officer or Registrar, and adduced no evidence of bias. Applying Sections 107-109 of the Evidence Act and the balance-of-probabilities standard, the court held the appellant had not proved fraud or his claim. The trial magistrate's judgment was upheld in entirety and the appeal, filed by memorandum dated 26th July 2023, was dismissed with costs to the appellant under the proviso to Section 27(1) of the Civil Procedure Act. Judgment delivered on 25th July 2024.

Key legal issues

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01

Whether the appeal was tenable given the absence of objection proceedings from the adjudication record

Holding

The appeal failed; the appellant did not produce the objection proceedings he alleged were disregarded, and the adjudication record (PExh 4) supported the registration of deceased 1

Reasoning

The court noted the trial court relied on the adjudication record showing the land initially belonged to deceased 2 and, after determination of objection No. 1235 lodged by deceased 1, was registered in her name. The appellant, despite filing a notice to produce, did not avail the objection proceedings, so no evidential basis existed to fault the trial court's reliance on the record.

p. 4
02

Whether the trial court was biased for failing to compel attendance of the land office

Holding

No bias was established; the appellant never applied for summons to the Land Adjudication Officer or Land Registrar

Reasoning

The court observed that the appellant did not make an application for summons to the Land Adjudication Officer or Land Registrar to attend court, and no evidence of bias was adduced. The trial court simply decided the case on the evidence placed before it by the parties, so the allegation of bias was without foundation.

p. 4
03

Whether the appellant proved fraud and his claim to the requisite standard

Holding

He did not; the trial magistrate's dismissal of the suit was sound and was upheld in entirety

Reasoning

A valid sale agreement dated 17th October 1998 (DExh 4) showed deceased 2 sold 1½ acres to Owino Joel Opiyo for his mother, deceased 1, who was subsequently registered. The appellant's witnesses admitted no fraud was witnessed, and particulars of fraud were not proven to the balance-of-probabilities standard, so the trial court's reasoning was endorsed.

p. 4

Legal principles established

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  • The legal burden of proof lies on the party who asserts the affirmative of the issue (Sections 107-109, Evidence Act)
  • Standard of proof in civil matters is on a balance of probabilities
  • On a first appeal the court considers the evidence afresh and draws its own conclusions

Court orders

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  1. 1.The appeal dated 26th July 2023 is dismissed
  2. 2.The judgment of the learned trial magistrate is upheld in entirety
  3. 3.Costs of the appeal to be borne by the appellant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 21 Rule 4
  • Evidence Act, Chapter 80 Laws of KenyaSections 107 to 109
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27(1) (proviso)

Cases cited (3)

  • Selle and another vs Associated Motor Boat Co. Ltd. and others
    (1968) EA 123
  • Williamson Diamonds Ltd. vs Brown
    (1970) EA 1
  • Zacharia Wambugu Gathimu & another vs John Ndungu Maina
    (2019) eKLR
On appeal from
Chief Magistrate's Court (trial court, Homa Bay)
not stated
Jurisdiction invoked
First appeal under the Civil Procedure Act, Chapter 21 Laws of Kenya (appeal by memorandum of appeal)

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, "Dudi (Suing as the administrator of the Estate of Joseph Kasera Obago alias Kasera Obago - Deceased) v Joel(Sued as the administrator of the Estate of the Late Consolata Awino Opiyo) & 4 others (Environment and Land Appeal E004 of 2023) [2024] KEELC 5694 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 26th July 2023 (Homa Bay; case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5694/eng@2024-07-25

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