Tarus v Kipngetich (Civil Appeal 40 of 2019) [2025] KECA 235 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a landowner's appeal, confirming that fraud must be clearly pleaded and proven with evidence, not just alleged.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned trial Judge erred in law to find that the respondent's suit was not barred by limitation
- 2.Whether the learned Judge erred to find that the appellant did not prove that the respondent acquired title to the suit land through fraud
- 3.Whether the doctrine of exhaustion was flouted
- 4.Whether the learned trial Judge erred in law and facts when he found that the respondent proved his case to the required standard
- 5.Whether the respondent had a good title
Key legal issues
#Limitation of actions
Section 7 of the Limitation of Actions Act does not bar a claim for partition by a co-registered owner; limitation was also raised for the first time on appeal, not having been pleaded or raised at trial
The appellant argued the suit filed in 2012 was time-barred regarding a 1994 consent to partition. The Court held section 7 applies to actions to claim land; the respondent was a co-registered owner seeking partition of his own share, not asserting proprietorship against others. Further, limitation was never pleaded in the defence nor raised at trial, surfacing first in the appeal.
Proof of fraud
Fraud was not proved: the appellant called no evidence, and the particulars in submissions varied from those pleaded
The Court reiterated that fraud must be specifically pleaded with particulars and distinctly proved by evidence; it cannot be inferred from facts. The appellant's pleaded particulars differed from those in submissions, a serious flaw, and critically he adduced no evidence at trial, having closed his case without calling any witness. The respondent's interest was entered on the register in 1994 following the succession proceedings.
Doctrine of exhaustion
The ground fails as it was raised for the first time on appeal
The appellant argued the respondent should have pursued dispute resolution outside court. The Court noted the issue was never canvassed before the trial court and reaffirmed that an appellate court only determines issues presented below; a lower court cannot be faulted for failing to consider an issue never argued before it.
First appeal - re-evaluation of evidence
The trial court's findings were sound and the appeal failed
The Court, exercising its retrial-like mandate under rule 31(1)(a), re-appraised the evidence and found no fault with the Judge's conclusions that the respondent obtained his acre through the succession process, that no evidence of fraud or rectification of grant was adduced, and that the respondent proved his interest and entitlement to relief.
Legal principles established
#- Allegations of fraud must be specifically pleaded with particulars and distinctly proved by evidence; a court will not infer fraud from the facts where the alleging party calls no evidence
- A party cannot raise a new issue, including the doctrine of exhaustion, for the first time on appeal when it was never canvassed before the trial court
- Limitation under section 7 of the Limitation of Actions Act does not bar a claim by a co-registered owner seeking partition of land so as to obtain a separate title for their share
- On a first appeal, the Court of Appeal must re-evaluate the evidence and depart from trial findings only where they were not based on the evidence, were based on wrong principles, or the discretion was exercised injudiciously
- Memoranda of appeal must be drawn in strict compliance with rule 88 of the Court of Appeal Rules: concise, under distinct heads, without argument or narrative
Court orders
#- 1.The appellant's appeal has no merit and is dismissed in its entirety
- 2.The judgment of the ELC, Angima, J. is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Eldoret
- ELC Case No. 212 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under rule 31(1)(a) of the Court of Appeal Rules, 2022
Relief refused
#Appeal allowed in its entirety, judgment of the superior court set aside and the respondent's suit dismissed with costs
The appeal lacked merit; limitation did not apply, fraud was neither properly pleaded in submissions nor proved by evidence, the exhaustion doctrine was raised for the first time on appeal, and the trial court's findings were sound
Costs
The judgment's final orders do not include a costs order; the respondent's costs of the suit as awarded by the trial court (to be borne by the appellant and Raymond) stand, but no costs order for the appeal was made in the judgment text provided.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appellant's appeal has no merit and is dismissed in its entirety.
The judgment of the ELC, Angima, J. delivered on the 29th January 2019 in Eldoret ELC Case No. 212 of 2013 is upheld.
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.
Clearly, limitation under section 7 does not arise. Nothing turns on this point.
The jurisdiction of the appellate court is to look into issues that were presented before the trial court. A court cannot be said to have erred on an issue that was never argued before it.
Issues in the judgment
#The judgment states the trial judgment was delivered on 24th January 2019 in the opening, but the final orders refer to it as delivered on 29th January 2019
The memorandum of appeal is described as contravening rule 88, but the quoted persuasive authority discusses rule 86
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tarus v Kipngetich (Civil Appeal 40 of 2019) [2025] KECA 235 (KLR)", Case Analysis (2025). Court of Appeal Appeal from Eldoret ELC Case No. 212 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/235/eng@2025-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.