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ELCDismissedHigh Court Civil Appeal (Murang'a) - appeal against Murang'a Chief Magistrate's Court Civil Case No. 68 of 2011 (appeal filed 14th April 2014)

Jecinta Warwinu Kariuki v Julius Gicheru Muritu [2016] KEELC 519 (KLR)

High Court of Kenya
30 September 2016
2,503 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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The High Court threw out a 33-year-late land fraud claim, confirming that Kenyan courts count limitation time from when you knew—or should have known—of the problem, not when you plead it.

What this practically means

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Executive summary

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This is a first appeal decided by B.N. Olao J of the High Court at Murang'a against the dismissal by J.J. Masiga RM of the appellant's suit in Murang'a Chief Magistrate's Court Civil Case No. 68 of 2011. The appellant had sued the respondent seeking cancellation of the respondent's title to land parcel LOC 8/GATUYA/403, pleading fraud - that the land was transferred in 1978/1979, long after the death of the original owner, her husband Kariuki Gichure (d. 10th July 1973), using forged transfer documents, forged Land Control Board consent and a forged sale agreement. The trial court dismissed the suit as time barred, finding the appellant had discovered the fraud in 1978. On appeal, the High Court re-assessed the evidence as on a first appeal (applying Selle, Jabane and Mwanasokoni). It held that although the plaint pleaded discovery of the fraud in 2010/2011, a pleading is not evidence; the appellant's own testimony showed she knew of the sale in 1978 and could with reasonable diligence have visited the lands office by 1979, so under Sections 7 and 26 of the Limitation of Actions Act the suit filed in 2011 was statute barred. Further, the appellant led no evidence of fraud, which must be strictly and distinctly proved (Central Bank of Kenya v Trust Bank; Gudka v Dodhia; Arthi Highway Developers), and the respondent's failure to testify did not lessen her burden under Sections 107-109 of the Evidence Act. The appeal was dismissed. However, because the appellant is 93 years old and faced committal to civil jail over costs assessed at Ksh. 50,025, the court interfered with the trial court's costs discretion under Section 27 of the Civil Procedure Act and ordered each party to bear their own costs both in the High Court and the court below.

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's suit in the lower court was statute barred under Section 7 of the Limitation of Actions Act, having regard to Section 26 and when the appellant discovered or could with reasonable diligence have discovered the fraud
  2. 2.Whether the trial magistrate erred in law and fact in dismissing the appellant's claim despite un-disputed evidence and the respondent's failure to testify
  3. 3.Whether the trial magistrate's costs order against the appellant should be interfered with on appeal

Key legal issues

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01

When time began to run under Sections 7 and 26 of the Limitation of Actions Act in a claim founded on fraud

Holding

Time runs from the date the plaintiff discovered, or could with reasonable diligence have discovered, the fraud; on the evidence, the appellant knew of the sale in 1978 and could have visited the lands office by 1979, so the 2011 suit was time barred

Reasoning

Section 7 bars actions to recover land after 12 years; Section 26 postpones accrual until discovery of fraud. The appellant testified she was told the land was being sold in 1977/1978 and complained to the village elder, headman, chief and District Officer. Though the plaint pleaded discovery in 2010/2011, a pleading is not evidence. She could with reasonable diligence have checked the register by 1979, when the transfer to the respondent was registered.

p. 3
02

Whether fraud was proved despite the respondent's failure to adduce evidence

Holding

Fraud was not proved; the plaintiff bore the heavy evidential burden of strictly proving fraud and led no evidence of it, so the respondent's non-testimony could not fill that gap

Reasoning

Relying on Central Bank of Kenya v Trust Bank, Rosemary Wanjiku Murithi v George Maina, Gudka v Dodhia and Bullen & Leake (affirmed in Arthi Highway Developers v West End Butchery), the court held fraud must be distinctly and strictly proved. The appellant's testimony contained no reference to fraud by the respondent. Under Sections 107-109 of the Evidence Act the burden was hers; there was nothing for the respondent to rebut.

p. 4
03

Whether the High Court should interfere with the trial court's order on costs

Holding

Yes - the order that the appellant pay the respondent's costs was set aside and each party ordered to bear their own costs both in the High Court and below, given the appellant's advanced age and the family circumstances

Reasoning

Under Section 27 of the Civil Procedure Act costs follow the event unless the court orders otherwise, and appellate interference is limited to instances where discretion was exercised unjudicially. The appellant was 93 years old; the land belonged to her deceased husband; the respondent never testified, so the transfer circumstances remain unknown. Committing her to civil jail for costs of Ksh. 50,025 would be extremely harsh.

p. 5

Legal principles established

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  • A pleading is not evidence; the date of discovery of fraud must be established by testimony, not by assertion in the plaint
  • Fraud must be strictly proved by the party alleging it, more than on a balance of probabilities, and the failure of the defendant to testify does not relieve the plaintiff of that burden
  • Under Sections 107-109 of the Evidence Act, the evidential burden lies on the party who desires the court to believe in the facts alleged, here fraud
  • An appellate court will not interfere with a trial court's discretion on costs unless exercised unjudicially or on wrong principles; in family disputes it is common practice to order each party to bear their own costs

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to meet their own costs both in this Court and in the Court below

The bench

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

majority

Wrote the judgment

On appeal from
Murang'a Chief Magistrate's Court
Civil Case No. 68 of 2011
Jurisdiction invoked
First appeal from the Chief Magistrate's Court to the High Court (Civil Procedure Act); appeal filed 14th April 2014

Relief refused

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Setting aside of the trial magistrate's judgment dismissing the claim as time barred

The appellant's own evidence showed she knew of the sale in 1978 and could with reasonable diligence have discovered the fraud by 1979; the suit filed in 2011 was statute barred

p. 3

Restoration of costs of the suit in favour of the appellant

The appellant is of advanced age (93) and the circumstances made a 'costs in the cause' order against her extremely harsh; the court departed from the ordinary rule

p. 5

Costs

Each party to meet their own costs both in this Court and in the Court below (replacing the trial court's order that the appellant pay the respondent's costs assessed at Ksh. 50,025)

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.

1. The appeal is dismissed. 2. Each party to meet their own costs both in this Court and in the Court below. It is so ordered.
p. 5Final orders - dismissal of appeal and each party bearing own costs
In the light of such evidence, the only conclusion that the trial magistrate could have arrived at, and which this Court also confirms, was that the appellant's suit was clearly statute barred
p. 3Limitation - suit time barred
However, a pleading is not evidence. Her own evidence, and which the trial magistrate correctly accepted, was that she knew about the sale in 1978
p. 3Pleadings versus evidence on date of discovery of fraud
Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case
p. 4Standard of proof of fraud (quoting Central Bank of Kenya v Trust Bank)
It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly proved
p. 4Fraud must be distinctly proved (Bullen & Leake, affirmed in Arthi Highway Developers)
Although the respondent did not testify, that did not lessen the duty on the appellant to lead evidence on fraud which was really the cornerstone of her claim
p. 4Plaintiff's burden unaffected by defendant's failure to testify

Issues in the judgment

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minor

The plaint allegedly pleaded discovery of fraud in 2010 while counsel's submissions quoted in the judgment refer to discovery in 2011; the judgment itself notes the pleading but resolves the conflict by reference to oral evidence

minor

The judgment records the transfer date inconsistently - the plaint alleges transfer on 6th June 1978 while the abstract of title shows transfer to the respondent on 29th March 1979

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, "Jecinta Warwinu Kariuki v Julius Gicheru Muritu [2016] KEELC 519 (KLR)", Case Analysis (2016). High Court Civil Appeal (Murang'a) - appeal against Murang'a Chief Magistrate's Court Civil Case No. 68 of 2011 (appeal filed 14th April 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/519/eng@2016-09-30

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