Felina Kabaga Andareya And John Andareya (Suing As The Administrators Of The Estate Of Andrea Akiabara Chweya v Esau Chweya Masera & 2 others [2019] KEELC 5096 (KLR)

When cross examined by Mr. Odongo Counsel for the 2nd and 3rd defendants PW1 stated that he was not aware that the suit land was not given to his father but to Henry Agini Mboku. He also stated that he did not have any evidence to show that his father had filed any complaint at the Adjudication office. He further admitted that his father’s name was not on the green card. 1st Defendant’s Case DW1 stated that the suit land belongs to him and produced a copy of a title deed as an exhibit before the court. He stated that the land initially belonged to Henry Mboku who bought the same from Adreya the father to the plaintiff. It was his evidence that he bought the land from the plaintiff and money was refunded to Henry Mboku. He also stated that the verdict at the Kapsabet adjudication office was to the effect that the land belonged to DW1. DW1 gave evidence and stated that Kipserem- Gambogi road passed through his parcel of land and was paid compensation by the government and that he has been cultivating the suit land since 1992 On cross examination DW1 stated that he got his title deed in 2003 and that he got the suit land from the plaintiff feline whom they went with to the Lands office. 2nd and 3rd Defendant’s case DW 2 who testified as the County Land Registrar Nandi. stated that the suit land was acquired through adjudication rather than allocation process. She further stated that adjudication started in 1980 and Nandi/Kapsengere Adjudication Section was completed in 1985 which process involved capturing individual's names. As regards Nandi/Kapsengere/473 the witness stated that it was first adjudicated in name of Henry Mboku Agini. Vide objection Noo 379 of 1985 the suit land was transferred to the 1 st defendant and the records were signed on 2-11985-2DEX 1. DW 2 stated that at the end of adjudication process the adjudication records were forwarded to the Chief Land Registrar who directed that registers be opened and title deeds issued. In respectof the suit land the register was opened on 25-2-2003 in the name of the 1 st defendant and title deed issued on 15-10-2003-2DEX 2. Counsel filed submissions and stated their respective clients’ cases. Analysis and Determination The issues for determination in this case are whether the plaintiff has proved his case against the defendants on a balance of probabilities and whether there was fraud in the registration.. It was incumbent upon the plaintiff to prove the allegation that his father was the owner of the suit land and that the same was fraudulently transferred to the 1st defendant. The plaintiff's contention that the 1st defendant got the title to the suit land fraudulently in 2003 after demise of Andrea Akiabara Chweya without going through succession proceedings is not supported by any evidence. Proof of fraud in transactions is not a walk in the park as fraud has to be specifically pleaded and specifically proved. There can never be a mere allegation of fraud without proof. It is not enough for a party to merely allege or infer to acts of fraud. The party must tender evidence to prove the acts of fraud. In the case of Vijay Morjiaria -versus- Nansingh Madhusingh Darbar & another (2000) eKLR Tunoi JA (as he then was) stated as follows: "It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from facts. " On standard of proof of allegations of fraud court in Ndolo -versus- Ndolo (2008) 1 KLR (G&F) 742 stated that: We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities: but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases... " (Emphasis added). The plaintiff did not prove that suit land was ever at any given time registered in the name of Andrea Akiabara Chweya. On the contrary, defendants and more particular DW 2 was emphatic on how the suit land was acquired. DW 2 produced adjudication records and certified copy of the register (green card) to prove that the suit land was never a property of Andrea Akiabara Chweya. In the absence of evidence of ownership of the suit land by Andrea Akiabara Chweya it is safe to conclude that the suit land was never a property of Andrea Akiabara Chweya and therefore, upon his demise the suit land did not form part of the estate of Andrea Akiabara Chweya and the Law of Succession Act was inapplicable in the circumstances. DW 2 the Land Adjudication Officer demonstrated that the suit land was acquired through adjudication process and all objections in respect

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of suit land were addressed in 1985 during which time Andrea Akiabara Chweya was alive. There is no evidence that the said Andrea Akiabara Chweya ever lodged an objection during land adjudication. There is also no evidence that the adjudication was tainted with fraud. In 1985 through to 2003 when 1st defendant's title was issued the applicable law was section 143 of the Registered Land Act Cap 300 which provided that first registration cannot be challenged unless evidence of fraud in the adjudication is proved. Section 26 of Land Registration Act, 2012 provides that no title shall be challenged or cancelled unless fraud is proved. Further Andrea Akiabara Chweya never challenged decision made in 1985, therefore under 7 of Limitation of Actions Act Cap 22 this matter is time barred as the decision was made in 1985 and the plaintiff filed a suit in 2016 that is 31 years of slumber. Having said that I find that the plaintiff has not proved fraud to the required standard and therefore the case is dismissed with costs to the 1 st defendant. The plaintiff also went to on a deep slumber for 31 years therefore the suit is time barred. DATED and DELIVERED at ELDORET this 13TH DAY OF NOVEMBER, 2019. M. A. ODENY JUDGE JUDGEMENT read in open court in the presence of Mr.Mwinamo for the Plaintiff and in the absence of Mr.Athung’a for the 1 st defendant and Mr.Odongo for 2nd and 3rd defendants. Mr. Mwelem – Court Assistant

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