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Court of AppealDismissedCivil Appeal No. 11 of 2016

Daniel Muchanga Nyukuri v Richard Kiprotich Kenduywo [2019] KECA 428 (KLR)

Court of Appeal
28 June 2019
EGE. GithinjiHOHannah OkwenguJMJ. Mohammed
1,709 words in judgment
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The bottom line

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The Court of Appeal dismissed a land buyer's claim to two extra plots because his documents didn't clearly prove he bought them, warning that fraud claims need specific pleading.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Eldoret from the judgment of the Environment and Land Court at Kitale (Obaga, J.) dated 7 July 2015 in ELC Case No. 59 of 2013, in which the respondent obtained an eviction order against the appellant from Plot No. 2964 and an injunction over Plot No. 2963 of Tuwan Farm. The appellant, who claimed to have purchased five plots, contended that the trial court disregarded his evidence and that there was no proof of forgery. The Court of Appeal restated its duty on a first appeal to re-evaluate the evidence and reach its own conclusions. On the single issue whether the appellant had a legal claim to Plots Nos. 2963 and 2964, the Court found that the share certificate was issued by 'Tuwan Farm Urban Project' while the minutes referred to 'Tuwan Farm Limited', with no evidence the entities were the same, and that the 1992 sale agreement did not in its operative clause refer to Plot 2963. The appellant's witness's evidence contained gaps. The Court concluded the appellant purchased only three plots. However, it held that the ELC erred in making findings of fraud and forgery where no particulars of fraud were pleaded, reiterating that fraud must be specifically pleaded and strictly proved. Despite that error, the Court saw no reason to interfere with the trial court's findings and dismissed the appeal with costs to the respondent. The decision affirmed the judgment below in substance while correcting its approach to unpleaded fraud.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant has a legal claim to plot Nos. 2964 and 2963 Tuwan Farm
  2. 2.Whether the ELC erred in making findings of fraud and forgery absent pleaded particulars of fraud

Key legal issues

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01

First appeal duty

Holding

A first appellate court must evaluate the evidence afresh and reach its own independent conclusion

Reasoning

The Court invoked the settled principle in Selle v Associated Motor Boat Co. and Kenya Ports Authority v Kuston (Kenya) Limited, emphasising that although it re-evaluates evidence, it must make allowance for not having seen or heard witnesses and must not introduce extraneous matters.

p. 2
02

Proof of ownership of the disputed plots

Holding

The appellant failed to prove purchase of Plots 2963 and 2964; the share certificate named a different entity and the sale agreement did not refer to Plot 2963

Reasoning

The share certificate was issued by Tuwan Farm Urban Project while the minutes referred to Tuwan Farm Limited, and no evidence showed the two were the same entity. The 1992 sale agreement's operative clause did not refer to Plot 2963, and Louma's evidence contained gaps including lack of a survey report.

p. 2
03

Pleading and proof of fraud

Holding

The ELC erred in making findings of fraud where no particulars of fraud were pleaded

Reasoning

Following Kinyanjui Kamau v George Kamau Njoroge and Vijay Morjaria v Nansingh Madhusingh Darbar, the Court restated that fraud must be specifically pleaded with particulars and distinctly proved, and cannot be inferred from facts. The pleadings here contained no particulars of fraud, so the ELC's findings on fraud and forgery were erroneous.

p. 3

Legal principles established

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  • On a first appeal, the Court of Appeal must re-evaluate the evidence and reach its own conclusions, while making allowance for not having seen or heard the witnesses
  • Allegations of fraud must be specifically pleaded with particulars on the face of the pleading and strictly proved; fraud cannot be inferred from the facts

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EG
majority
HO
majority
JM
majority
On appeal from
Environment and Land Court of Kenya at Kitale
ELC Case No. 59 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statutes (the judgment does not state the specific provision)

Relief refused

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Appellant's claim to ownership of Plots Nos. 2963 and 2964 Tuwan Farm

Evidence established purchase of only three plots; the share certificate and sale agreement did not prove ownership of the two additional plots

p. 2

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This being a first appeal, our duty as imposed by the law is to evaluate afresh the evidence before the trial court in order to reach our own independent conclusion.
p. 2Duty of first appellate court
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.
p. 2Pleading fraud
Our evaluation of the evidence leads us to the conclusion that the appellant purchased three plots of land and not the five that he claims.
p. 2Ownership of disputed plots
It follows that we find that this appeal lacks merit and it is accordingly dismissed with costs to the respondent.
p. 3Final orders

Issues in the judgment

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minor

Internal inconsistency in the record: the appellant is referred to as 'Daniel Muchanga Nyukuri' in the caption but as 'David Muchanga Nyukuri' in the background narrative

minor

The respondent's witness is rendered as both 'Christopher Jackton Louman'/'Louma' inconsistently within the judgment

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, "Daniel Muchanga Nyukuri v Richard Kiprotich Kenduywo [2019] KECA 428 (KLR)", Case Analysis (2019). Civil Appeal No. 11 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/428/eng@2019-06-28

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