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ELCDismissedNot stated in judgment (Kajiado ELC suit)· [2024] KEELC 6785 (KLR)

Karei v Kisoso & 2 others (Environment & Land Case 55 of 2020) [2024] KEELC 6785 (KLR)

Environment and Land Court
15 October 2024
1,705 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner who claimed his title was obtained by fraud lost because he offered no proof of forgery, while the other side's witnesses confirmed a voluntary 1985 land exchange.

What this practically means

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Executive summary

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The plaintiff, a long-standing owner of land acquired from Erankau Group Ranch, sued the defendants seeking declarations that he was the lawful registered proprietor of L.R. Kajiado/Kaputiei-Central/571, that the 1st defendant's acquisition of title was fraudulent, a permanent injunction, and damages for trespass. He alleged the 1st defendant fraudulently procured a forged title and entered the land in 2020. The 1st defendant denied the claim and counterclaimed, asserting that parcel 571 no longer existed, having been subdivided into parcels 1036 (plaintiff's) and 1037 (his own); that the plaintiff himself had transferred parcel 1037 to him; and that the parties had exchanged lands in 1985, the defendant giving his 41.22-hectare parcel 808 for the 40.48-hectare parcel 1037. At the trial both parties and the defendant's witnesses testified. The court framed two issues: whether the plaintiff proved fraud, and whether the counterclaim was proved. Applying the higher standard of proof for fraud per Ndolo v Ndolo, the court found the plaintiff had not discharged the burden, accepting as credible and corroborated the defendant's evidence of a voluntary exchange, supported by witnesses Korio Karumba and Joseph Kingoo, the latter having bought land from the plaintiff that stood in the defendant's name. The plaintiff called no corroborating witnesses and produced no proof of forgery. The counterclaim succeeded on a balance of probabilities, the defendant being the lawful registered owner of parcel 1037 entitled to absolute ownership under sections 24 and 25 of the Land Registration Act. The plaintiff's suit was dismissed with costs and judgment entered for the 1st defendant on his counterclaim as prayed.

Key legal issues

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01

Whether the plaintiff proved fraud against the defendants

Holding

Fraud not proved; the court preferred the defendant's evidence of a voluntary 1985 land exchange, corroborated by two witnesses

Reasoning

The court held that allegations of fraud attract a higher standard of proof than balance of probabilities, citing Ndolo v Ndolo. The defendant's evidence of exchanging parcel 808 with parcel 1037 was credible and corroborated by two truthful elderly witnesses, one of whom bought land from the plaintiff that stood in the defendant's name. The plaintiff produced no evidence of forgery and called no witnesses.

p. 4
02

Whether the 1st defendant proved his counterclaim

Holding

Counterclaim proved on a balance of probabilities; the defendant is the lawful registered owner of L.R. No. 1037 entitled to absolute ownership

Reasoning

The defendant called credible witnesses who knew of the land exchange, including one who bought land from the plaintiff while it was registered in the defendant's name. The plaintiff filed no reply to the counterclaim and adduced no contrary evidence. As registered owner, the defendant is entitled to absolute ownership under sections 24 and 25 of the Land Registration Act.

p. 4

Legal principles established

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  • Fraud must be proved to a standard higher than a balance of probabilities but below proof beyond reasonable doubt

Court orders

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  1. 1.Dismissal of the plaintiff's suit against the defendants with costs
  2. 2.Judgment entered for the 1st defendant against the plaintiff as prayed for in paragraph 29 of the defence and counterclaim dated 11/4/2022

Authorities

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Legislation

  • Land Registration ActSections 24 and 25

Cases cited (1)

  • Ndolo v Ndolo
    (2008) KLR
Jurisdiction invoked
Original civil jurisdiction over land disputes (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, "Karei v Kisoso & 2 others (Environment & Land Case 55 of 2020) [2024] KEELC 6785 (KLR)", Case Analysis (2024). Not stated in judgment (Kajiado ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6785/eng@2024-10-15

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