Pauline Muthoni Ikigu v Douglas Kinyanjui Ikigu & another [2022] KEELC 1042 (KLR)

survey. She balloted, got the number 134 and was immediately shown her plot. She added that one share was equivalent to 1 acre but since there were more members than available plots, she was allocated 1 acre and three quarters. She fenced the plot and constructed a two-room house. She however did not live on the plot but asked her neighbour on the next plot to watch over it. 6. The plaintiff went on to testify that later on she went to see the second defendant who told her that the plot had been registered in the name of the first defendant and that it was given to the first defendant since he claimed that he inherited it from the plaintiff’s late husband. She added that she later went to the land registry and upon finding that the plot was registered in the names of the defendants, she lodged a caution against it. That her late husband neither had a plot nor a share in Rumuruti Farmers Company. That a petition for letters of administration in respect of her late husband’s estate was filed by the children of the first wife without involving her and that the said children shared the estate without involving her. That she disagreed with the family and returned to her parents’ home before the deceased passed away and that she remained at her parents’ home even as at the date of her testimony. She added that she did not have any share certificate issued to her by Rumuruti Farmers Co. Ltd or the member’s register in respect of the company. 7. Next to testify was Douglas Kinyajui Ikigu, the plaintiff’s son. He stated that in the year 2009 he accompanied the plaintiff to the office of the second defendant at Gilgil Town and the second defendant told them that the first defendant was the owner of the suit property. That the second defendant gave them a copy of the title and that they later conducted a search on 3 rd September 2010 which confirmed that the first defendant was the owner of the suit property. That they subsequently lodged a caution on 8 th September 2010 and did another search on 10 th August 2012 which showed that the owner of the suit property was the second defendant. 8. The plaintiff’s case was then closed. 9. The defendant testified as the sole defence witness. He stated that he met the first defendant in Gilgil and got interested in a plot that the first defendant was selling. He obtained certificate of search dated 30 th April 2012 which showed that the first defendant became registered owner on 22nd August 2008 and was issued with title on 9th February 2009. That he then inspected the plot on the ground and found it vacant without any development. They then executed a sale agreement dated 7 th May 2012 with a purchase price of KShs 180,000. That the suit property was transferred to him and a title deed was then issued in his name on 21 st June 2012. He added that upon purchasing the suit property, he started cultivating on it and continued to do so even as at the date of his testimony. That the suit property was initially owned by Rumuruti Farmers Company and that he was the secretary of the said company from 1997 to 2004. He urged the court to dismiss the suit with costs. 10. The Defence case was closed. Parties then filed and exchanged written submissions. I have considered the pleadings, evidence and submissions. The issues that arise for determination are whether the plaintiff is the owner of the suit property and whether the reliefs sought should issue. 11. The plaintiff’s case is that the defendants acquired the suit property fraudulently. Fraud is a serious allegation which beyond being pleaded and particularised, must be strictly proven. See Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR. The burden of proof facing a party alleging fraud is higher than the usual one in civil cases of proof on a balance of probabilities but lower than the criminal law standard of proof beyond reasonable doubt. See John Mbogua Getao v Simon Parkoyiet Mokare & 4 others [2017] eKLR. 12. The plaintiff contends that that she acquired the suit property by virtue of being a member and shareholder of Rumuruti Farmers’ Company. She relied on receipts in a bid to demonstrate membership and shareholding in the company. She did not call any witness from the company to support her claims of being a member of the company. The members register of the company was not produced. 13. The plaintiff contended that she held three shares in the company and that pursuant to those shares, she participated in a balloting exercise in which the company allocated her the suit property. Once again, she did not call witness from the company to produce records regarding shareholding in the company and the results of the balloting exercise. Although she produced what she called a ballot card, I note that the space provide in the said card for plot number is blank. While the ballot has a serial number 134, there is need for evidence from the company to confirm that the balloting exercise resulted in the plaintiff being allocated plot number 134 and that plot number 134 ultimately became Gilgil/Karunga Block 9/1606 (Ol Burgel), which is the suit property herein. 14. In view of the foregoing discourse, the plaintiff has not persuaded me that she has any right to ownership of the suit property. Her allegations of fraud have not been proven to the required standard. That being the case, it follows that the reliefs sought are not available to the plaintiff. 15. In the result, I dismiss the plaintiff’s case. Considering the relationship between the parties, I order that each party bears own costs. DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 28TH DAY OF FEBRUARY 2022. D. O. OHUNGO JUDGE DELIVERED THROUGH ELECTRONIC MAIL IN THE PRESENCE OF: COURT ASSISTANT: E. JUMA

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