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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal No. 113 of 2015

George Kamau Kimani & Another v David Kili Sawe & Another

Court of Appeal of Kenya
17 January 2019
2,944 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal returned a deceased man's land to his family, ruling the farm manager's registration was fraudulent and the sale was never his.

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 22nd June 2015, which had dismissed a suit by the appellants, administrators of the estate of their late father Geoffrey Kimani Muchori. The appellants claimed the deceased had purchased a five-acre parcel (Waitaluk Kapkoi Block 4/Waitaluk/166) from the 1st respondent, but that the 1st respondent, in collusion with the 2nd respondent (the deceased's farm manager and relative), fraudulently caused the property to be transferred and registered in the 2nd respondent's name. The respondents maintained the deceased had bought the land on behalf of the 2nd respondent under an arrangement with salary deductions. The Court of Appeal, in a unanimous judgment, applied the settled principle from Vijay Morjaria that fraud must be specifically pleaded and distinctly proved. Re-evaluating the evidence, the Court found the initial sale agreement was for only two acres, later increased to four; the 2nd respondent took possession only after the deceased's death; the deceased and his son cultivated the land; and no written agreement, salary or deduction evidence supported the respondents' account. It concluded the respondents did not speak the truth, that the 2nd respondent had no privity of contract and gave no consideration, and that the transfer involved misrepresentation to the Land Control Board and Land Registrar and collusion amounting to fraud. The trial judge was found to have merely accepted the respondents' evidence without weighing it. The appeal was allowed, the judgment below set aside and substituted with judgment for the appellants: the 2nd respondent's registration was declared null and void, the title to be reverted to the 1st respondent and then transferred to the appellants within sixty days, with each party bearing its own costs of the appeal.

Questions the Court framed

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

  1. 1.Whether the deceased was buying the suit property for himself or for and on behalf of the 2nd respondent
  2. 2.Whether the transfer and registration of the suit property to the 2nd respondent was fraudulent
  3. 3.Whether the trial judge properly considered and analysed the evidence before him

Key legal issues

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01

Whether the deceased purchased the suit property for himself or for the 2nd respondent

Holding

The documentary evidence showed the deceased was buying the land for himself; the 2nd respondent had no privity of contract and provided no consideration.

Reasoning

The initial agreement was for two acres only, later increased to four; the 2nd respondent took possession only after the deceased's death; the deceased and his son cultivated the land; and the 1st respondent asked the appellants what they intended to do with the land after the deceased died. No written agreement, salary or deduction evidence supported the respondents' claim.

p. 3
02

Whether fraud in the transfer and registration was established

Holding

Fraud was established to the required standard; the respondents colluded to confer an undeserved benefit on the 2nd respondent by misrepresenting to the Land Control Board and Land Registrar that he was the purchaser.

Reasoning

The 1st respondent transferred the property knowing his sale agreement was with the deceased and that the 2nd respondent was not party to it. The circumstances of registration amounted to misrepresentation to the Land Control Board and Land Registrar, and collusion between the respondents to fraudulently register the 2nd respondent.

p. 4
03

Whether the trial judge properly evaluated the evidence

Holding

The trial judge failed to properly consider and analyse the evidence, merely accepting the respondents' testimony without weighing it.

Reasoning

The appellate court found the documentary agreements and acknowledgments contradicted the respondents' oral account, and that the trial judge's acceptance of that account without weighing it against the documents was an error justifying interference with the judgment below.

p. 3

Legal principles established

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  • Fraud must be specifically pleaded, its particulars stated on the face of the pleading, and it must be distinctly proved; it cannot be left to be inferred from the facts.
  • On a first appeal, the appellate court must reconsider and weigh the evidence itself rather than merely accept the trial court's findings.

Court orders

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  1. 1.Appeal allowed; judgment of the trial Court set aside and substituted with judgment in favour of the appellants
  2. 2.Registration of the 2nd respondent as proprietor of the suit property declared null and void
  3. 3.Land Registrar directed to cancel the 2nd respondent's registration and revert the title to the 1st respondent
  4. 4.1st respondent to transfer the land to the appellants as administrators of the deceased's estate within sixty (60) days, failing which the Registrar of the Court may sign the necessary transfer documents
  5. 5.Each party to bear his own costs of the appeal

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court (High Court) at Kitale
HCCC No. 1 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (Environment and Land Court) under the Constitution and Court of Appeal jurisdiction over appeals from the High Court

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.

It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.
p. 3Standard of pleading and proving fraud
We find that the learned judge did not properly consider and analyze the evidence before him but merely accepted the evidence of the respondents without weighing it.
p. 3Duty of first appellate court to weigh evidence
It can therefore be safely concluded that the 2nd respondent had no privity of contract in regard to the agreement for the sale of the suit property between the deceased and the 1st respondent.
p. 4Privity of contract
Accordingly, we allow this appeal, set aside the judgment of the trial Court and substitute therefore judgment in favour of the appellants.
p. 4Final orders - disposition
Each party shall bear his own costs of the appeal.
p. 4Costs order

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, "George Kamau Kimani & Another v David Kili Sawe & Another", Case Analysis (2019). Civil Appeal No. 113 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1027/eng@2019-01-17

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