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ELCAllowedKajiado ELC Appeal (memorandum dated 18/10/2022) arising from Kajiado Chief Magistrate ELC Case No. E023 of 2022· [2024] KEELC 6784 (KLR)

Presbeta Investment Limited v Gathura & another (Environment and Land Appeal E046 of 2022) [2024] KEELC 6784 (KLR)

Environment and Land Court
15 October 2024
1,579 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 ruled a land buyer must prove their purchase with documents, otherwise the title can be cancelled as fraudulent.

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 Kajiado against the judgment of the Chief Magistrate in ELC Case No. E023 of 2022 delivered on 28/9/2022, which dismissed the appellant company's suit seeking recovery of three plots, Kajiado/Lorngusua/6599, 6600 and 6601, alleged to have been fraudulently carved out of its 125-acre parcel LR Kajiado/Lorngusua/1836 and conveyed to the 1st respondent, then an official of the company. The appellant pleaded that only 442 quarter-acre plots were lawfully created and that seven extra plots were concealed. The trial Magistrate held that fraud was not proved, that there was possibly a resolution rewarding the 1st respondent's contribution to the company, and that boardroom wrangles should go to ADR. Guided by Selle v Associated Motor Boat Company, the court re-evaluated the evidence. It found the trial Magistrate erred: there was no sale agreement, Land Control Board consent, executed transfer form or stamp duty evidence, and no minutes authorising allotment of the parcels to the 1st respondent; the burden under Section 107(2) of the Evidence Act lay on the 1st respondent as registered owner to prove lawful acquisition and it shifted to him once the appellant proved only 442 parcels were lawfully created. Failure to prove compliance with the lawful transfer procedure amounted to fraud, and the 1st respondent's failure to testify, using a proxy instead, weakened his case. Allowing the appeal, the court set aside the trial judgment and substituted judgment for the appellant in terms of the plaint, with costs of the appeal and the Lower Court suit to the appellant.

Key legal issues

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01

Burden of proving root of title and lawful transfer

Holding

The burden lay on the 1st respondent as registered owner to prove lawful acquisition, and he failed to produce any conveyance documents or authorising minutes

Reasoning

Under Section 107(2) of the Evidence Act the party bound to prove a fact bears the burden. The appellant proved only 442 parcels were lawfully created out of LR 1836; the burden then shifted to the 1st respondent to prove the extra 7 parcels were lawfully created. There was no sale agreement, Land Control Board consent, executed transfer form or stamp duty evidence, and no minutes authorising allotment to him.

p. 3
02

Whether fraud was proved

Holding

Failure to prove compliance with the lawful transfer procedure amounted to fraud

Reasoning

A lawful transfer of registered land requires a sale agreement, land control consent, an executed transfer and stamp duty payment. None was proved by the 1st respondent, so the trial Magistrate erred in finding fraud unproved.

p. 3
03

Weight of the 1st respondent's failure to testify

Holding

The 1st respondent's failure to testify and use of a proxy weakened his defence

Reasoning

The registered owner was the person asserting lawful acquisition; by shying away from testifying he did not adduce the best evidence, and his proxy's evidence was unconvincing.

p. 4

Legal principles established

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  • The registered owner alleging lawful acquisition bears the burden of proving conveyance documents (sale agreement, land control consent, executed transfer, stamp duty); failure to prove compliance with lawful procedure amounts to fraud.

Court orders

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  1. 1.The judgment and decree of the trial Court in Chief Magistrate's ELC Case No. E023 of 2022 dated 28/9/2022 is set aside and substituted with a judgment in favour of the appellant in terms of the plaint dated 8/3/2022
  2. 2.Costs of the appeal and of the Lower Court suit awarded to the appellant
On appeal from
Chief Magistrate's Court, Kajiado
Chief Magistrate ELC Case No. E023 of 2022
Jurisdiction invoked
First appeal from the Chief Magistrate's ELC case (appellate jurisdiction of the Environment and Land 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, "Presbeta Investment Limited v Gathura & another (Environment and Land Appeal E046 of 2022) [2024] KEELC 6784 (KLR)", Case Analysis (2024). Kajiado ELC Appeal (memorandum dated 18/10/2022) arising from Kajiado Chief Magistrate ELC Case No. E023 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6784/eng@2024-10-15

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