Kanda & another v Kiprotich

4. The particulars of fraud were given as follows:-registration was done without their consent; suit property was erroneously registered in the name of the plainti’s father and that the plainti concealed crucial information at the lands oce in order to defeat justice. 5. The defendants further pleaded that they had been in use and possession of the suit property since 1941; that their use of the suit property had been exclusive and uninterrupted and that they had carried out extensive developments in the suit property (had been cultivating the suit property for over 15 years and had erected permanent structures therein). 6. Terming the plainti’s suit scandalous, frivolous, vexatious and an abuse of the process of the court, by way of counterclaim, the defendants sought judgment against the plainti for a permanent injunction to restrain the plainti from claiming, trespassing and in any other way interferring with the suit property. The defendants also sought an order for cancellation of the registration of the suit property in the name of the plainti’s father. 7. When the case came up for hearing, parties gave evidence in support of their pleaded case and led submissions at close of hearing. 8. Upon considering the cases urged by the parties, the learned trial magistrate entered judgment in favour of the plainti and dismissed the defendants’ defence and counterclaim. In so doing, the learned trial magistrate inter alia stated:“ I have considered the evidence on record and the submissions led by the parties. The issues for determination are:- 9. a. Whether the plainti’s late father is the registered owner of the suit land; b. Whether the plainti’s late father obtained the suit land fraudulently; c. Whether the plainti is entitled to the orders sought.” On whether the plainti’s late father is the registered owner of the suit property, the learned trial magistrate stated:“ It is not in dispute that the plainti is the registered owner of the suit property. The same was registered in the plainti’s name on 21st April 2010. The plainti in his evidence stated that he acquired the suit land from his late father. The defendants have questioned the process that led to the acquisition of the title by the plainti’s late father. It was their evidence that the process was marred by fraud. The plainti’s claim is based on proprietorship of the suit land and entitlement to the rights in respect to ownership of land. He has produced documentary evidence in the form of a title deed over the suit land in his late father’s name as proof of ownership.......... The courts are mandated by statute to consider a title document as prima facie evidence of ownership and conclusive evidence of ownership to land which can only be challenged on grounds stipulated as above..... In order to challenge the plainti’s title so as to have it cancelled by amending the register as prayed by the defendants. According to section 26 of the Act (Land Registration Act, 2012) evidence ought to have been led to prove that the plainti’s title had been acquired fraudulently, through misrepresentation, illegally, unprocedurally or through a corrupt scheme.... https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14192/eng@2024-05-07 2

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In the instant case, although the defendant’s case was based on allegations that the plainti’s late father had transferred the suit land without their consent they have not strictly speaking challenged the authenticity of the title held by the plainti. The search that was produced in court shows that the land was transferred to the plainti on 21st April 2010 when his late father was alive. If all the defendants inherited the land, it was their duty to follow up the matter with the plainti’s father and/or his estate... I have examined the defendants’ defence for any pleading on particulars of fraud or illegality but there is none. The claims were therefore still born and no evidence could be tendered. Even if it was open to tender evidence on fraud and illegality, the mere allegation that they inherited the land from their grandfather is well below the standard of proof set under the authorities cited. I need not belabour this issue as I am satised that it was neither properly pleaded nor strictly proved. The plainti has proved on a balance of probabilities that he is the owner of the suit land. He has also proved that the defendants are trespassers in the suit land. In the premises, I allow the plainti’s claim in terms of a permanent injunction and declaration that the suit land belongs to the plainti. I also dismiss the defendants’ counterclaim with costs to the plainti.” 10. Aggrieved by the decision of the lower court, the defendants appealed to this court on the grounds that the learned trial magistrate erred by:1. Misapprehending the law applicable to the case; 2. Determining that the plainti is the owner of the suit property when there was no evidence or legal basis for doing so; 3. Holding that the defendants had not provided particulars of fraud/illegality when the same were given and sucient evidence adduced in respect thereof; 4. Failing to critically analyze the evidence on record, the pleadings and the defendants’ submissions thereby arriving at a wrong conclusion. 11. In essence, it is the appellants’ case that the learned trial magistrate erred by allowing the plainti’s case and dismissing their defence and counterclaim. 12. Pursuant to directions given on 23rd January 2024, that the appeal will be disposed by way of written submissions, parties led submissions, which I have read and considered. Submissions Appellants Submissions 13. In their submissions led on 6th February 2024, the appellants have given an elaborate overview of the cases urged by the parties in the lower court and framed the issues for the court’s determination as follows; i. Whether the learned magistrate erred in law and in fact in making his decision based on misapprehension of the law; ii. Whether the learned magistrate erred in law and in fact by nding that the respondent is the owner of the Land Parcel Number Elgeyo Marakwet/Kapsowar/841 without any evidence or legal basis whatsoever; https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14192/eng@2024-05-07 3

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14. iii. Whether the learned trial magistrate erred in law and in fact that the appellants neither pleaded particulars of fraud and/or illegality or adduced sucient evidence to that eect when in essence the same was particularly pleaded and sucient evidence adduced by the appellants; iv. Whether the Learned Magistrate erred in law and in fact by failing to critically analyze the evidence on record, the pleadings and the appellant’s written submissions together with cited authorities annexed therein arriving at a wrong conclusion. The appellants have submitted that despite the respondent being in possession of a title deed to the suit property, he needed to prove that he had a good title as its validity had been challenged. Based on the decisions of Daudi Kiptugen v Commissioner of Lands & 4 others (2015) eKLR, Micheal Chelimo Kipkiru v Julius Kiprop Kipkirui (2018) eKLR, Alice Wairimu Macharia v Kirigo Philip Macharia (2019) eKLR, Isaac M’inanga Kiebia v Isaaya Theuri M’lintari & another (2018) eKLR Munyu Maina v Hiram Gathiha Maina(2013) eKLR, Civil Appeal 239 of 2009, the appellants have reiterated that the evidence they adduced was proof that the suit property was ancestral land and therefore a constructive trust existed which the learned trial magistrate failed to consider together with the pleaded particulars of fraud. Respondent’s Submissions 15. 16. The respondent also gave an overview of the parties pleaded cases and framed the following issues for the court’s determination; a. Whether the respondent obtained title to the suit property fraudulently as the defendant alleges; b. Whether the appellants are in lawful occupation of the suit property and/or whether the appellants have an overriding interest over the land; c. Whether the respondents is entitled to the reliefs sought and who is to bear costs of this suit. Based on the decisions of Vijav Morjaria v Nasingh Madhusingh Darbar & another (2000) Eklr, Giella v Cassman Brown & Company Limited 1973. E.A 358, Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma (2020) eklr, Republic v Rosemary Wairimu Munene Ex-Parte Applicant v Ihururu Dairy Framers Co-operative Society Ltd Judicial Review Application 6 of 2014, the respondent has reiterated that he proved his case in the lower court on a balance of probabilities that he is the righful owner of the suit property having met the provisions of Section 24 and 26 of the Land Regisration Act, 2012. Analysis and determination 17. In exercise of the duty vested in this court as a rst appellate court, I have re-evaluated the evidence adduced before the lower court with a view of reaching my own conclusion on it. I have reminded myself that a rst appellate court will not ordinarily interfere with ndings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the nding. In that regard, see Selle & another vs. Associated Motor Boat Co. Ltd (1968)E.A 123, Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988)KLR 348. 18. In paragraph 1 and 2 of this judgment, the respondent instituted this suit seeking a declaration that the suit property belongs to him and a permanent injunction to restrain the defendants from interferring with the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14192/eng@2024-05-07 4

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19. In paragraph 3 of this judgment, the defendants/appellants acknowledged that the suit property is registered in the name of the plainti’s father but contended that registration of the suit property in the name of the plainti’s father was eected by fraud. 20. There being evidence that the suit property is registered in the name of the plainti’s father (Registration of the suit property in the name of the plainti’s father was eected on 21st April 2010), by dint of the provisions of Section 26(1) of the Land Registration Act 2012, the plainti’s father having being registered as the proprietor of the suit property is prima facie the absolute and indefeasible owner of the suit property. As rightly observed by the trial court, registration of the plainti’s father can only be challenged on the grounds specied under Section 26(1)(a) and (b) of the Land Registration Act, 2012. These are:- 21. “ (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” Section 26(1)(a) and (b) captures the letter and spirit of Article 40(6) of the Constitution which does not oer legal protection to unlawfully acquired property. Article 40(6) provides as follows:“ The rights under this article do not extend to any property that has been found to have been unlawfully acquired.” 22. In the circumstances of this case, where there is evidence that the suit property is registered in the plainti/respondent’s father, it behooved the defendants/appellants to not only suciently plead fraud in the registration of the plainti’s father as the proprietor of the suit property but also to lead evidence capable of proving the particulars of fraud urged against the plainti. In that regard, see the case of Vijay Morjaria vs. Nansingh, Madhusingh Darbar & Another (2000) e KLR where it was held:“ It is well established that fraud must be specically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act 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 that fraudulent conduct must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts.” 23. It is trite law that the standard of proof for claims based on fraud is higher than in the ordinary civil cases. In that regard, see the case of Koinange & 13 Others vs. Charles Karuga Koinange (1986)KLR at page 23 where it was held:“ When fraud is alleged by the plaintis the onus is on the plaintis to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.” 24. In the circumstances of this case, the defendants merely pleaded that the registration of the suit property was eected without their consent; that the correct legal procedures for registration of the suit property were not followed and that the plainti concealed material facts from the land registrar in order to defeat justice. The defendants did not state what legal procedures were not complied with; what material facts were concealed and/or that their consent was required before the suit property https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14192/eng@2024-05-07 5

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could be registered in the name of the plainti’s deceased father. For that reason, I agree with the learned trial magistrate that the defendants’ did not adequately plead fraud and or want of procedure in the registration of the suit property in the name of the plainti’s father. 25. The evidence adduced was also incapable of proving the pleaded fraud/want of compliance with law to the required standard. The defendants merely based their claim on history of occupation and use of the suit property, which per se is not proof that the registration of the suit property was eected by fraud. 26. The upshot of the foregoing is that the appeal has no merits. Consequently, I dismiss it with costs to the plainti/respondent. 27. Orders accordingly. JUDGMENT DELIVERED, DATED AND SIGNED AT ITEN THIS 7TH DAY OF MAY, 2024. L. N. WAITHAKA JUDGE Judgement delivered virtually in the presence of:Mr. Oswere Otieno for the appellant Mr. Barmao for the respondents Court Assistant – Jael Kerubo https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14192/eng@2024-05-07 6

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