Gituma v Kamangara (Environment and Land Appeal E006 of 2023) [2024] KEELC 5709 (KLR)

The appellant pleaded particulars of fraud against the respondent arising from the adjudication and registration of parcel 1236. The court restated the rule that fraud must be specifically pleaded and distinctly proved to a standard higher than a balance of probabilities, citing Kuria Kiarie and Kinyanjui Kamau. The appellant's evidence was that the respondent 'stole' his land during adjudication, and he did not call the adjudication officers. No water-tight evidence was laid to establish the particulars, and the appellant merely invited the court to infer fraud from the facts, which is impermissible. The counterclaim therefore failed.

The respondent produced a title deed, green card, sketch map, official search and chief's letter, and testified that he bought the land from the appellant before adjudication, paying goats and cash, after which the parcel was registered to him upon adjudication. A court-ordered site visit by the Land Registrar and Sub County Surveyor confirmed both parcels exist distinctly and that parcel 1236 is owned by the respondent; that report was unchallenged. Applying Article 40(1) of the Constitution and Sections 24, 25 and 26 of the Land Registration Act, the court held the title indefeasible absent proved fraud.

As a first appeal, the court re-evaluated the evidence, including the appellant's testimony, his sole witness's evidence (which did not speak to the adjudication outcome), the respondent's evidence and that of PW2, and the unchallenged registrar and surveyor's report. The court was satisfied the trial magistrate's findings were justified and found no basis to interfere.