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Court of AppealDismissedSecond Appeal from Environment and Land Court at Kisumu (as extracted from record of appeal)

Otieno v Otieno & another (Sued as the administrator of the Estate of Joseph Adede Otieno - Deceased) (Civil Appeal 109 of 2016) [2020] KECA 874 (KLR)

Court of Appeal of Kenya
31 January 2020
2,548 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a land fraud appeal because fraud must be specifically pleaded and proved, and second appeals cannot reargue facts.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Kisumu against the dismissal by the Environment and Land Court of a first appeal arising from a land dispute over Land Parcel No. Uholo/Madungu/250. The appellant claimed the suit property originally belonged to his father, Nicholas Omolo Oloo, and that its registration in the name of Joseph Adede Otieno (deceased), husband of the 2nd respondent, was procured through fraud and misrepresentation. The trial magistrate dismissed the suit, finding that neither fraud nor trust was proved, and the Environment and Land Court affirmed, holding that the case failed primarily because fraud and trust were not proved. The Court of Appeal, per Asike-Makhandia, Kiage and Otieno-Odek, JJ.A, in a single joint judgment, dismissed the appeal. It reiterated that in a second appeal the Court confines itself to matters of law and will not interfere with concurrent findings of fact unless based on no evidence or perverse. The Court found no scintilla of evidence proving fraud or misrepresentation, noted the mandatory requirement to plead particulars of fraud, and held that the issues of how the deceased came to be registered and who occupied the land were not pleaded, so the judge did not err in not determining them; comments on adverse possession, an unpleaded issue, were obiter dicta. The parties' written submissions merely rehashed facts and raised no error of law. The appeal was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the learned judge of the Environment and Land Court erred in omitting part of the evidence of the appellant's witnesses PW2, PW3 and PW4
  2. 2.Whether the learned judge overlooked documentary evidence and evidence relating to adverse possession
  3. 3.Whether the learned judge erred in failing to establish how Joseph Adede Otieno came to be the owner of the suit property and who was in occupation of the suit property
  4. 4.Whether the concurrent findings of fact by the two courts below that fraud and misrepresentation were not proved could be disturbed on a second appeal

Key legal issues

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01

Scope of a second appeal

Holding

The Court in a second appeal confines itself to matters of law and will not interfere with concurrent findings of fact unless based on no evidence or perverse.

Reasoning

Relying on Kenya Breweries Ltd v Godfrey Odoyo, the Court reiterated that a second appellate court must resist the temptation of delving into matters of fact, unless the two courts below considered matters they should not have, or failed to consider matters they should have, or the decision is perverse. The appellant's grounds were factual and raised no point of law.

p. 4
02

Proof of fraud and misrepresentation

Holding

Fraud must be specifically pleaded with particulars and proved; the concurrent finding by the two courts below that fraud was not proved could not be disturbed.

Reasoning

The appellant's claim was founded on alleged fraud in the registration of the suit property. The Court examined the record and could find no evidence supporting the pleaded particulars of fraud. Citing Kampala Bottlers Ltd v Damanico (U) Ltd, the Court noted that particulars of fraud must be given where fraud is pleaded, and that this requirement is mandatory. No scintilla of evidence of fraud existed.

p. 5
03

Pleadings bound the parties and the court

Holding

The judge did not err in failing to determine ownership history or occupation because those issues were not pleaded; comments on adverse possession, which was not pleaded, were obiter dicta.

Reasoning

Following Galaxy Paints Ltd v Falcon Guards Limited, the Court held that parties are bound by their pleadings and a court cannot issue orders not sought in the pleadings. The issues of how Joseph Adede Otieno came to be registered and who occupied the land were not issues for determination from the plaint and pleadings, and adverse possession was likewise not pleaded.

p. 5

Legal principles established

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  • On a second appeal, the Court confines itself to matters of law and will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence or are perverse.
  • Where fraud is pleaded, particulars of the fraud must be given; the requirement for pleading particulars of fraud is mandatory.
  • Parties are bound by their pleadings and a court cannot issue an order that is not in the pleadings; issues not pleaded are not before the court.

Court orders

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  1. 1.The appeal is dismissed with costs

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
Jurisdiction invoked
Second appellate jurisdiction of the Court of Appeal under the applicable appeal framework, confined to matters of law

Relief refused

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Rectification of the register, general damages and allowance of the appeal as prayed by the appellant

The appellant failed to demonstrate any error of law; fraud and misrepresentation were not proved and the appeal was a rehashing of factual matters

p. 5

Costs

The appeal was dismissed with costs to the respondents

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.

In a second appeal, an appellate court will not interfere with the concurrent findings of fact arrived at by the two courts below unless the findings are based on no evidence or are simply perverse.
p. 5Scope of second appeal
We are unable to detect a scintilla of evidence proving fraud or misrepresentation.
p. 5Proof of fraud
In addition, the issue of adverse possession was not raised in the pleading and any comments thereon are obiter dicta.
p. 5Pleadings and unpleaded issues
The submissions were simply a repetitive rehashing of the facts and evidence on record. No point of law or error of law is evinced or argued in the submissions.
p. 5Submissions on appeal
The upshot is that this appeal has no merit and is hereby dismissed with costs.
p. 5Final orders / disposition

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, "Otieno v Otieno & another (Sued as the administrator of the Estate of Joseph Adede Otieno - Deceased) (Civil Appeal 109 of 2016) [2020] KECA 874 (KLR)", Case Analysis (2020). Second Appeal from Environment and Land Court at Kisumu (as extracted from record of appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/874/eng@2020-01-31

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