Boniface Gogo Mwaura v Mohamed Dima Laini

Respondent’s admitted signature on the sale agreement and found that the two signatures were very different. The learned Magistrate consequently declared the Power of Attorney void and invalid and found the subsequent transfer of the suit property to the Appellant irregular. 4. The Appellant, being dissatisfied with that decision, preferred the present appeal. It is appropriate at the outset to state the duty of this Court as a first appellate court. 5. In the case of Omar v Ngowa & another (Both suing as Administrators of the Estate of the Late Hamisi Ndoro Chaka) [2024] KEHC 8750 (KLR), the Court stated that the duty of the first appellate court remains as set out in Pandya v Republic [1957] EA 336 as follows: “On a first appeal from a conviction by a Judge or magistrate sitting without a jury, the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or, not which may warrant a court different.” MALINDI ELCLA E034 OF 2025 Page 2 of 16 JUDGEMENT

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6. Similarly, Justice Wendoh in JWN v MN [2019] eKLR stated: “It is settled law that the duty of the first appellate court is to re-evaluate the evidence tendered in the subordinate court, both on points of law and facts, and come up with its findings and conclusions.” 7. This Court shall therefore reconsider the evidence on record, the impugned judgment and the grounds of appeal and arrive at its own independent conclusion, while bearing in mind that the learned Magistrate had the benefit of hearing and observing the witnesses. The decision of the trial court 8. From the record, it is noted that on 5 th May 2003, the Respondent and the Appellant had entered into an agreement for the sale of the suit property for the sum of Kshs. 85,000/=. The Appellant's case was that he paid consideration of Kshs. 70,000/= towards the purchase of the property, leaving a balance of Kshs. 15,000, which was paid much later. The Plaintiff obtained the title on 28th August 2006. 9. The Respondent's position was that although there had been the sale agreement, he subsequently agreed to refund the Appellant Kshs. 230,000/= and that the Appellant was to vacate the property. A written agreement to that effect was executed on 9th November 2006. 10. The Appellant nevertheless proceeded to rely upon the Power of Attorney and ultimately caused the property to be transferred into his name. The Respondent thereafter challenged the transfer on the basis, inter alia, that he had never executed the Power of Attorney and that the signature appearing thereon was forged. 11. In determining the dispute, the learned Magistrate compared the Respondent's admitted signature on the sale agreement with the signature appearing on the impugned Power of Attorney and observed MALINDI ELCLA E034 OF 2025 Page 3 of 16 JUDGEMENT

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that the two signatures were very different. The learned Magistrate further observed that although there was no forensic report, the difference was sufficiently apparent for the court to make its own determination. 12. Having found the signature to be forged, the learned Magistrate declared the Power of Attorney void and invalid and consequently found the transfer of the suit property into the Appellant's name irregular. The learned Magistrate further held that the Appellant ought to have pursued the refund of Kshs. 230,000/= rather than rely on the impugned Power of Attorney. The Memorandum of Appeal 13. The Appellant preferred the appeal on four grounds. The grounds are reproduced verbatim from the Memorandum of Appeal as follows: I. THAT the Learned Magistrate erred in law and fact by finding that the Plaintiff’s signature on the impugned Power of Attorney was forged without calling for any forensic evidence. II. THAT the Learn Magistrate in making her determination on forgery disregarded/failed to appreciate that the standard of proof on forgery/fraud is higher than the standard utilized in ordinary civil cases. III. THAT the Learned Magistrate erred in law and fact by making the determination that the subject Power of Attorney utilized to transfer the suit property in the name of the Appellant is void and invalid. IV. THAT the Learned Magistrate erred in law and fact in finding the transfer of the suit property in the name of the Appellant to be irregular and stating that the Appellant ought to have pursued MALINDI ELCLA E034 OF 2025 Page 4 of 16 JUDGEMENT

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a claim for refund of Kshs. 230,000/= as opposed to relying on the alleged forged Power of Attorney. 14. The Appellant consequently prayed that the appeal be allowed with costs, that the judgment and consequential orders delivered on 5th June 2025 be set aside in their entirety and for such further relief as this Court may deem just and equitable. Submissions Appellant’s submissions 15. The Appellant's submissions were principally directed at the finding of forgery. It was submitted that the learned Magistrate erred by undertaking a comparison of the signatures herself and effectively assuming the role of a handwriting expert. The Appellant relied upon the absence of forensic evidence and contended that the Respondent had failed to produce a document examiner's report to prove that his signature had been forged. 16. It was further submitted that the burden of proof rested upon the Respondent, who had alleged forgery, and that allegations of fraud and forgery attract a standard of proof higher than the ordinary balance of probabilities. The Appellant relied on Kinyanjui Kamau v George Kamau [2015] eKLR, Vijay Morjaria v Nansign Madhusihn Darbar & Another [2000] eKLR, and Elizabeth Kamene Ndolo v George Matata Ndolo [1996] eKLR. 17. The Appellant also submitted that the Respondent had not reported the alleged forgery to the police, had not called a forensic document examiner and had not called the advocate who allegedly prepared and witnessed the Power of Attorney. The Appellant contended that the trial court improperly filled that evidentiary gap by undertaking its own visual comparison of the signatures. MALINDI ELCLA E034 OF 2025 Page 5 of 16 JUDGEMENT

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18. On the consequences of the finding of forgery, the Appellant argued that once the finding of forgery was displaced, the declaration that the Power of Attorney was void and invalid and the consequent finding that the transfer was irregular could not stand. The Appellant further maintained that he had paid consideration, taken possession of the property and acted in reliance upon the Power of Attorney. Respondent’s submissions 19. The Respondent opposed the appeal and maintained that the learned Magistrate properly evaluated the evidence before her and correctly found that the signature appearing on the Power of Attorney was not his. It was submitted that the Respondent had expressly denied executing the instrument and that the admitted signature on the sale agreement provided a proper basis upon which the learned Magistrate could compare the two documents and reach the conclusion that the impugned signature was different. 20. The Respondent further submitted that the finding that the Power of Attorney was forged rendered the instrument void and invalid and consequently invalidated the transfer effected pursuant thereto. It was contended that the Appellant could not rely on an instrument which the trial court had found not to have been executed by the Respondent. The Respondent therefore urged the Court to uphold the judgment of the trial court and dismiss the appeal with costs. 21. The grounds of appeal are closely interrelated and can conveniently be considered together, the central question being whether the learned Magistrate properly found that the Power of Attorney was not genuine and, if so, whether the consequential orders were properly issued. Analysis and determination 22. The issues for determination are: MALINDI ELCLA E034 OF 2025 Page 6 of 16 JUDGEMENT

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i. Whether the appeal is merited. ii. Who shall bear the costs of the appeal? 23. The first issue concerns the allegation that the learned Magistrate erred in finding that the Respondent's signature on the Power of Attorney was forged in the absence of forensic evidence. The question therefore is whether, on the evidence presented before the trial court, the Respondent discharged the burden imposed upon him to prove that the signature was forged. 24. The starting point is Sections 107, 108 and 109 of the Evidence Act which provide as follows: “107. Burden of proof. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. Incidence of burden. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. Proof of particular fact. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 25. At the trial before the Magistrate’s Court, the burden required to be discharged under the foregoing legal provisions rested upon the Respondent. It is him who alleged that his signature in the Power of MALINDI ELCLA E034 OF 2025 JUDGEMENT Page 7 of 16

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Attorney was forged. The burden of proving the existence of that fact lay squarely on him. The burden does not shift merely because the allegation is made. There must first be evidence sufficient to discharge the burden before any evidential burden can be said to arise on the Appellant. 26. In Josephat Oundo Omodo v Martina Anyango Khanya [2020] KEELC 3009 (KLR), Justice A Omollo had the following to say: “8. In cases where fraud is alleged, it must be distinctly proved, and it is not enough to simply infer fraud from the facts, which is what the Defendant wants the Court to do. See the holding in the case of Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR (Civil Appeal No. 106 of 2000) where the Court of Appeal held thus, “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. The acts alleged to be fraudulent must of course be set out, and then it should be stated that those acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 27. The principle is equally applicable to the present allegation. The Respondent merely alleges that the Power of Attorney was forged but does not provide anything to go beyond that assertion. To my mind, this is a failure to discharge the burden of proof. It should be noted that until the same is discharged and shifted, the same remains squarely on the plaintiff who is alleging forgery. 28. The decision in Josephat Oundo Omodo (Supra) is particularly instructive on the sufficiency of a mere assertion that a signature is forged. The Court stated: MALINDI ELCLA E034 OF 2025 Page 8 of 16 JUDGEMENT

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“17. The particulars of fraud enumerated in the statement of defence and the oral testimony were not proved, as the defendant admits to participating in the sale of the suit property. She also admitted signing the application for LCB consents to subdivide the land. In spite of these the defendant refused to execute a transfer in favour of the plaintiff without any justification. The defendant did not call the evidence of a handwriting expert to prove that her signature was forged. Neither were there records produced minutes from the respective Land Control Board to corroborate her non-attendance of such a meeting. Her observation that the signatures in the Sale agreement and applications for consent were not similar did not suffice as proof of forgery alleged.” 29. In the suit herein, the Respondent merely alleges that the same was forged but does not provide anything to go beyond that assertion. The burden under Sections 107, 108 and 109 of the Evidence Act remained squarely on him. The Appellant was therefore not required to prove the negative until the Respondent had first presented evidence capable of proving the positive assertion that the signature was forged. 30. It is important to clarify that this Court is not holding that expert evidence is invariably indispensable in every case involving a disputed signature. In our jurisprudence, the evidence of an expert is not always treated as gospel truth. The court retains the duty to consider the whole of the evidence before it. This was the position in Elizabeth Kamene Ndolo vs. George Matata Ndolo [1996] eKLR where the Court of Appeal stated that ‘…The evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not MALINDI ELCLA E034 OF 2025 JUDGEMENT Page 9 of 16

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it believes the expert and give reasons for its decision. A court cannot simply say"-"Because this is the evidence of an expert, I believe it … eyewitness evidence of attesting witnesses is superior to that of handwriting experts, which really is only opinion evidence.’ 31. The High Court in In Re Estate of Gitau Njoroge ‘B’ (Deceased) [2018] eKLR observed that ‘The findings of an expert witness are not binding on a court. Such findings amount to no more than mere opinion. Although the same are admissible as evidence, they are not conclusive; the court has to evaluate them alongside any other available evidence.’ 32. However, where, as in the present case, forgery is specifically alleged, and the principal basis advanced for the allegation is that the signature does not resemble an admitted signature, there at least has to be cogent evidence placed on record by the party alleging forgery. In my view, a forensic document examination report would have been the bare minimum evidence expected in the circumstances, absent other compelling evidence establishing non-execution. 33. The approach adopted by the learned Magistrate was materially different. The learned Magistrate delved into comparing the signatures in the absence of an expert report and then drew the conclusion of forgery from that comparison. This places the risk of an adjudicator assuming the role of an expert in circumstances where the party bearing the burden has not placed expert evidence before the court. The court is an arbiter of the evidence tendered by the parties. It ought not to fill an evidentiary gap in a party's case by conducting its own investigation into handwriting and MALINDI ELCLA E034 OF 2025 Page 10 of 16 treating the result JUDGEMENT of that

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investigation as proof of fraud, noting the severity of such an allegation and the high standard of proof assigned by the law. 34. All the Appellant had to do in the trial court was to affirm that indeed it is the Respondent who signed the Power of Attorney and supply evidence showing compliance with the terms of the Power of Attorney, which he did – the discharge and effecting the transfer into his name. Fraud cannot be inferred from facts as seen in Josephat Oundo Omodo v Martina Anyango Khanya [2020] KEELC 3009 (KLR) (Supra) whose passage has been quoted herein before. 33. It would be improper for the respondent to be held merit the reliefs sought by the Respondent where the burden of proving forgery has not been discharged. It is the Respondent's case and he ought to have been diligent in proving the same. The Court cannot assume the role of an expert and construct evidence which the party bearing the burden failed to place before it. 34. Further, the reliance on the fact that the two signatures fail to match fails to take into account various factors which would lead to variation of signatures. It should be known by now that one is not compelled to maintain one signature. In In re Estate of Pradeep Behal (Deceased) [2019] KEHC 7648 (KLR), Justice Ongeri observed that: “25. Other than the expert evidence, the applicant did not offer the court any other evidence. The respondent, on the other hand, offered the court cogent evidence that the signatures were his. Further, as stated by the applicant’s expert witness, various factors affect the quality of the handwriting. He mentioned that age and health do affect the quality of a signature. In Simon Peter Gachi Benard vs. Agnes Nungari Muriithu & 2 Others [2014] eKLR the court observed that MALINDI ELCLA E034 OF 2025 Page 11 of 16 JUDGEMENT

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“… As to whether the signature on the affidavit supporting the preliminary objection is a forgery is a matter of fact which requires proof. As pointed out, there is no legal requirement confining an individual to one type of signature.” The respondents herein did not deny the said signatures, they claimed them, stating that they were the makers thereof. As stated in the above case, one can have more than one signatures and there in no law barring that. The applicant herein cannot allege that the respondent forged their own signatures.” 35. The foregoing authority demonstrates why visual dissimilarity alone is not a reliable basis upon which to find forgery. Various factors may affect the appearance and quality of a signature. Age and health are expressly identified in the authority. The law also does not require a person to maintain one unchanging form of signature. 36. The comparison of signatures is particularly problematic where the court is invited to elevate visual inconsistency into proof of fraud. Even if this Court were to undertake the same exercise, it would not follow that variation in appearance establishes forgery. An example is the Verifying Affidavit sworn by the Plaintiff on 30 th November 2020 appearing on page 43 of the Record of Appeal and the Witness Statement signed by the respondent on 25 th September 2023 appearing on page 67 of the Record of Appeal visually do not appear to be similar. That clearly evidences that the variation in the appearance of signatures is not, in itself, an independent factor that can be used to rationalize an allegation of fraud. 37. It should be appreciated that the burden of proof in cases of fraud is higher than in usual civil cases where it is on a balance of probabilities. The Court of Appeal in Shanka & another v Kanyolo (Suing on behalf of the Estate of Herman Syanda Kanyolo) & 8 others [2026] KECA 978 (KLR) observed as follows: MALINDI ELCLA E034 OF 2025 Page 12 of 16 JUDGEMENT

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“37.There is no doubt that fraud must be pleaded and proved, and that the standard of proof is higher than the usual standard in civil cases of balance of probabilities, although not as high as in criminal case where the standard is beyond reasonable doubt. This was restated by this Court in the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR), where it held that: “It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake & Jacobs, Precedent of pleadings 13thEdition at page 427:“Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford v Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune V Occident [1989] 1 Lloyd’s Rep. 305, 308).The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see Lawrence V Lord Norreys (1880) 15 App. Cas. 210 at 221). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (Davy V Garrett (1878) MALINDI ELCLA E034 OF 2025 Page 13 of 16 JUDGEMENT

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7 Ch.D. 473 at 489). “General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any court ought to take notice”.” 38. The standard is therefore higher than the ordinary balance of probabilities, although it is not the criminal standard of proof beyond reasonable doubt. The Respondent's case, however, did not rise beyond the bare denial that he had signed the Power of Attorney coupled with the apparent visual difference between the signatures. The evidence did not bridge the gap required to meet the heightened standard. 39. the In the circumstances, the learned Magistrate erred in finding that alleged variation in the signatures, standing alone and unsupported by expert or other cogent evidence, established forgery. The learned Magistrate's approach effectively relieved the Respondent of the burden imposed by Sections 107, 108 and 109 of the Evidence Act and supplied the missing evidentiary link through the Court's own visual assessment. 40. I therefore find that the Respondent did not discharge the burden of proving that the Power of Attorney was forged. The allegation remained an assertion unsupported by evidence sufficient to meet the requisite standard of proof. Nonetheless, the respondent has not provided proof that the Appellant declined to receive the refund of Kshs. 230,000. No proof has been provided of the availability of the said funds at the time and attempts to persuade the Appellant to receive the said funds. The allegation therefore remains what it is, absent of proof. 41. Once the finding of forgery is displaced, the consequential finding that the Power of Attorney was void and invalid cannot stand. MALINDI ELCLA E034 OF 2025 Page 14 of 16 JUDGEMENT

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The transfer of the suit property into the Appellant's name, having been impugned principally on the footing that it was founded upon a forged Power of Attorney, cannot consequently be declared irregular on that basis. 42. The Appellant's first and second grounds of appeal therefore succeed. The third and fourth grounds, being consequential upon the finding of forgery, must equally succeed. 43. Accordingly, the appeal is merited. Who shall bear the costs of the appeal? 44. Costs ordinarily follow the event. Having found the appeal merited, there is no sufficient basis in the circumstances of this appeal to depart from that position. 45. In the result, a. The present appeal is allowed with costs to the Appellant; b. The Judgment of the learned Senior Principal Magistrate, Hon. L.N. Wasige, delivered on 5 th June 2025 in Garsen SPM ELC Case No. 2 of 2023, together with the consequential orders arising therefrom, is hereby set aside in its entirety and is substituted with an order dismissing the Plaintiff’s suit with costs to the Defendant; c. The Respondent shall also bear the costs of this appeal. d. The file is hereby marked as closed. Dated, Signed and Delivered at Malindi this 1st Day of October 2026. MALINDI ELCLA E034 OF 2025 Page 15 of 16 JUDGEMENT

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HON. JUSTICE MWANGI NJOROGE JUDGE ENVIRONMENT AND LAND COURT, MALINDI. MALINDI ELCLA E034 OF 2025 Page 16 of 16 JUDGEMENT

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