Vide a further amended plaint dated 17th June 202, the plaintiff prays for judgment against the defendants jointly and severally for;
a. An injunction restraining the defendants from dealing, alienating, and or interfering in any way whatsoever with the said plot No. 1681 BARUT FARM and an order compelling the 2nd defendant to register plot No. 1681 BARUT FARM in the name of the plaintiff.
b. A declaration that the transfer of the property to the 4th defendant was illegal fraudulent and void abnitio.
c. A declaration that the plaintiff is the legal owner of parcel NO. MITI MINGI BLOCK 3/1681 and therefore the proposed 4th defendant's title deed in respect of plot No. 1681 BARUT FARM be cancelled and the plaintiff be registered as the owner.
d. Costs and interests of the suit.
e. Any other order relief that this Honourable Court deem fit to grant.
The plaintiff states that at all material times, he was a shareholder of Kalenjin Enterprises since 1980. In 1990, he was allocated plot no 1681 in the Barut farm by virtue of his shareholding whereupon he took possession and settled with his family and immediately fenced and built a house. The 1st defendant in 1991 claimed ownership of the said parcel of land resulting in the plaintiff filing Nakuru High Court Civil Case number 529 of 1991 seeking an injunction to restrain the defendant in the dealing with the plot in any manner. The plaintiff contends that he fenced the plot and erected a house on the said plot and occupied the same since 1990 until 1992 when there were tribal clashes and he left for Kisii with his family. During his absence when there were tribal clashes, the 1st and 2nd defendants processed and obtained papers of allotment and a title deed in respect of the said plot for the 3rd defendant to the detriment of the plaintiff and in clear contempt of court order dated 21st August 1991. The defendants filed their respective defenses but did not appear on the hearing dates and did not tender any evidence.
On the 19th June 2023, the plaintiff testified before this court and began by adopting his statements dated 11th November 2019 and the further statement filed on 27th May 2016 as his evidence in chief. He states that he bought the land in 1977 from Cheruyot Arap Maritim who was his friend and was issued with a membership certificate after the name of Maritim was cancelled and his name was inserted as the new member of Kalenjin Enterprises.
On cross examination by Mr Akango, learned counsel for the 4th defendant he stated that he bought the shares from Cheruyoit Arap Maritim and that the shares were to make him a member of the Kalenjin Enterprises and to entitle him to a parcel of land. The two shares gave him 3.6 acres. He was allocated the parcel of land known as Miti Mingi/ Mbaruk/ 1681 and was issued receipt number 543367, at the back was the reference to Miti Mingi/ Mbaruk/ 1681 He states that when he went back to the land, he found the defendants had done their fence. He agreed that he is not in occupation.
On Cross examination by M/s Ademeyon, learned state Counsel, he states that he does not blame the land registrar for any fraud. The Kalenjin Enterprises was issuing the allotment letters and had their own surveyor and not a government surveyor. The defendants neither testified nor called any witness to support their defence.
The Plaintiff submits he has been a shareholder of Kalenjin Enterprise since 1980 and by that virtue, he was allocated plot no. 1681 by the said company. He and his family took possession of the said plot and immediately fenced and built a house. The 1st defendant in 1991 claimed ownership of the said parcel resulting in the plaintiff filing High Court civil case number 529 of 1991 requesting for injunctive orders. He then fenced the plot and erected a house on the land and occupied the same until 1991-1992 when tribal clashes occurred and he left for Kisii with his family. When he was absent the 1st and 2nd defendants proceeded to process and obtain allotment letters and title deeds in respect of the parcel of land and in total contempt of the orders of the court issued on 21st August 1991. The defendants therefore colluded to defraud the plaintiff of the parcel of land known as parcel NO. MITI MINGI BLOCK 3/1681 previously called plot No. 1681 BARUT FARM contrary to the law and at the detriment of the plaintiff.
The plaintiff produced the list of documents dated 11th June 2021 where the sale agreement, affidavit, court order, receipt, share certificate among other documentation as to how he acquired the property. The defendants failed to appear during the date of hearing despite clearly being aware of the ongoing case. They did not proceed for defence hearing, a clear case pf showing disinterest on the case.
According to the Plaintiff, his evidence is clear, consistent and uncontroverted. The Plaintiff testified that he has been a shareholder of Kalenjin Enterprise (the 2nd Defendant) since 1980, and by virtue of that shareholding, he was duly allocated Plot No. 1681 BARUT FARM. Upon allocation, the Plaintiff immediately took actual possession of the land, fenced it, constructed a house, and settled thereon with his family. This evidence was supported by documentary proof including:
a. Share certificate issued by the 2nd Defendant;
b. Sale agreement and receipts evidencing payment;
c. Affidavits confirming allocation and possession;
d. Court orders issued in High Court Civil Case No. 529 of 1991; and
e. Other supporting documents contained in the Plaintiff's List of Documents dated 11th June 2021.
The Plaintiff submits that he has therefore demonstrated a clear root of title, tracing his ownership from allocation by the land-buying company through possession and occupation, which the law recognizes and protects. Prior Court Orders and Contempt by the Defendants. The Plaintiff submits that upon the 1st Defendant unlawfully laying claim to the suit land in 1991, the Plaintiff moved this Honourable Court in HCCC No. 529 of 1991, where injunctive orders were issued on 21st August 1991, restraining any dealings with the suit property.
Despite the existence of valid court orders, and while the Plaintiff was away during the 1991–1992 tribal clashes, the 1st and 2nd Defendants colluded to process allotment letters and procure title documents in blatant contempt of court orders. It is trite law that acts done in disobedience of court orders are illegal and null. This Court cannot sanction or protect rights acquired through contempt. Any subsequent registration flowing from such acts is tainted with illegality and must fall. The Plaintiff has pleaded and proved fraud with particularity, including Processing title while court orders were in force; Disregarding the Plaintiff's prior allocation and possession; Collusion between the 1st and 2nd Defendants to defeat the Plaintiff's interest; Procuring registration in favour of the 4th Defendant without lawful basis. Fraud, once proved, vitiates even a registered title. Section 26(1)(b) of the Land Registration Act expressly allows this Court to impeach a title obtained through fraud, misrepresentation, illegality or un-procedural means. The Defendants, despite being duly served and fully aware of the proceedings, failed to attend court and tender any evidence. They neither challenged the Plaintiff's documents nor rebutted his testimony. The law is settled that uncontroverted evidence is deemed admitted. In the absence of any defence evidence, the Plaintiff's case stands firm and unshaken.
While discussing the standard of proof in civil liability, the plaintiff relies on the Court of Appeal in Mumbi M'Nabea vs David M.Wachira [2016] eKLR and as reiterated in Maiyebei v Chesebe (Environment and Land Appeal E022 of 2023) [2025] KEELC 5294 (KLR) (10 July 2025) (Judgment) stated as follows: "In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not."
The plaintiff submits that in the present case, he has overwhelmingly discharged this burden. His evidence is documentary, consistent, logical and supported by prior court orders, while the Defendants offered nothing in rebuttal.
According to the plaintiff, he has demonstrated that he is the lawful and bona fide owner of Parcel No. MITI MINGI BLOCK 3/1681, and that the registration in favour of the 4th Defendant was fraudulent, illegal and void ab initio. The Plaintiff humbly urges this Honourable Court to protect the sanctity of court orders, uphold the rule of law, and prevent unjust enrichment by granting all the prayers sought in the Further Amended Plaint. The Plaintiff prays that judgment be entered as prayed in the Further Amended Plaint, with costs and interest.
Analysis and Determination
On whether the titles issued to the defendants should be nullified, the issue of indefeasibility of title comes into question. Indefeasibility of title is a legal principle, central to the Torrens system of land registration, which establishes that a registered proprietor’s title to land is conclusive, unchallengeable, and immune from attack by prior unregistered interests or defects in the chain of title. The Core Principle is that Registration serves as the definitive evidence of ownership, providing state-backed certainty and simplifying property transactions by eliminating the need for exhaustive historical title searches. Indefeasibility is not absolute; it is subject to limited statutory exceptions, including fraud, forgery, mis-description, Corrupt Schemes and certain overriding interests (such as short-term leases, easements, or rights of persons in actual occupation).
The Judgment of the Supreme Court of Kenya in Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) established that indefeasibility is not absolute and does not sanction illegal or irregular allocations of public land; if the "root of title" was procured through unlawful processes, the resulting registered title can be declared a nullity ab initio, regardless of the purchaser's good faith. Consequently, while registration confers strong presumptive ownership, courts now require scrutiny of the legality of the initial allocation, meaning a title is indefeasible only if it was issued in compliance with applicable laws and procedures. The Supreme Court of Kenya has resolved the contradicting position of a bona fide purchaser. It emphasized, in Dina Management Limited v County Government of Mombasa & 5 others (supra) that one must go to the root of the title to satisfy oneself as to its validity.
In Arthi Highway Developers Limited v West End Butchery Limited & 6 others (2015), the Court of Appeal held that the appellant was not a bona fide purchaser. It reasoned that the appellant's documents of share transfer were marred with forgeries and never bound the respondents in any way. These documents were subsequently used by fraudsters to sell the suit property to the appellant who then sub-divided it into different parcels.
The Court held that no valid title passed to the appellant since it was irredeemably fake, noting that titles acquired by subsequent purchasers of the subdivisions were also null and void.
Conversely, in Tarabana Company Limited v Sehmi & 7 others (2021)EKLR, the Court determined the appellant to be a bona fide purchaser as the title to the property, however acquired illegally, was indefeasible and acquired before the appellant came into the picture.
In Funzi Development Ltd & Others v County Council of Kwale:
"a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot on the basis of indefeasibility of sanction on illegality or gives its seal of approval to an illegal or irregularly obtained title."
Article 40 of the Constitution entitles every person to the right to property, which is conditional on Article 40(6) which limits the right as against any property proved to be unlawfully acquired.
Sction 26 of the Land Registration Act 2012 provides as follows:-
1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.
This court finds that the plaintiff evidence was not controverted. However, while uncontroverted evidence is significant, it does not automatically prove a case as truth without judicial interrogation. The court must still ensure the evidence is credible and logical. As stated in Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya), the plaintiff remains obligated to prove his case on a balance of probabilities even if the defendant’s defense is merely allegations.
Under Sections 107 and 108 of the Evidence Act Cap 80 Laws of Kenya, the party asserting a fact must prove it. If the defendant files a statement of defense but adduces no evidence, their defense remains "mere allegations," shifting the practical burden to the plaintiff to demonstrate that their uncontroverted evidence is sufficient to establish liability. Unchallenged evidence implies no objection was raised during cross-examination, "uncontroverted" specifically means the evidence was not disputed or denied by the opposing party’s substantive evidence. Courts emphasize that uncontroverted evidence must still "bring out the fault and negligence" clearly; a court should not accept it as truthful solely because it is unchallenged if it lacks logical consistency or corroborating facts.
In this matter, the plaintiff has not demonstrated that he was allocated plot number 1681 Barut Farm and that the secretary of the allocation committee was not happy with his being allocated the plot no 1681 and that he forged or removed his name from the register and entered Chepkwony Chumo. The register for the members of Kalenjin Enterprises in respect of the Barut Farm was not produced to assist the court in determining this matter. The plaintiff states that his name was not appearing in the allocation register. The plaintiff has not demonstrated that the defendants acted fraudulently. Moreover, there is no evidence on record that the registration of the land in the names of Eunice Chumo was done illegally and that the subsequent transfers to Gideon Kipyegon Rop and Cheruyoit Henry Kiptanui were done fraudulently. The burden of proof rested with the plaintiff to prove fraud on a balance of probabilities. The burden of proof in civil cases in Kenya is governed by the Evidence Act, Cap 80 and follows the principle that the party who alleges must prove.
The Legal Burden as underpinned in Section 107(1), lies on the person who seeks a judgment on a legal right or liability dependent on the existence of asserted facts. This burden remains constant on the party invoking the law throughout the trial.
The Standard of Proof in Civil cases require proof on a balance of probabilities, meaning the plaintiff must demonstrate that their case is more likely than not true, a lower standard than the "beyond reasonable doubt" required in criminal cases.
Evidential Burden as underpinned in Sections 109 and 112 depicts the burden to prove a particular fact which lies on the person wishing the court to believe it exists. This burden may shift depending on the circumstances, such as when a fact is especially within the knowledge of one party. Under Section 108, the burden lies on the person who would fail if no evidence at all were given by either side; failure to discharge this burden results in losing that specific issue or the case. In this matter, even in the absence of the defendants, the plaintiff has a duty to discharge the burden of proof which he has not done.
On fraud, in civil cases, allegations of fraud must be specifically pleaded with distinct particulars and strictly proved through evidence. Fraud cannot be left to inference; the pleader must set out the specific acts alleged to be fraudulent and state that they were done fraudulently. The standard of proof for fraud is higher than the ordinary civil standard of proof on a balance of probabilities but lower than the criminal standard of proof beyond reasonable doubt. Courts require "something more than a mere balance of probabilities," demanding evidence of high strength and quality to meet this elevated civil standard.
Key legal principles established in cases such as Vijay Morjaria v Nansingh Madhusingh Darbar, Kinyanjui Kamau v George Kamau Njoroge, and R.G. Patel v Lalji Makanji include are that fraud must be distinctly alleged on the face of the pleading, outlining the acts and stating they were done fraudulently. The party alleging fraud bears the burden to discharge it; vague or general allegations are insufficient. Mere suspicion or equivocal language is not enough; the evidence must clearly demonstrate dishonesty. Fraudulent conduct must be distinctly proved and cannot be inferred merely from surrounding facts that are consistent with innocence. The plaintiff has not proved fraud as required by law.
Though the plaintiff’s evidence is not controverted, there is no scintilla of evidence that the title for parcel number Miti Mingi Block 3/1681 was obtained through illegality, Misrepresentation, fraud or corrupt scheme or un-procedural process.
I do agree with Mulwa J, in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR where she stated as follows;-
“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.
The upshot of the above is that the suit is dismissed with no order as to costs
a. An injunction restraining the defendants from dealing, alienating, and or interfering in any way whatsoever with the said plot No. 1681 BARUT FARM and an order compelling the 2nd defendant to register plot No. 1681 BARUT FARM in the name of the plaintiff.
b. A declaration that the transfer of the property to the 4th defendant was illegal fraudulent and void abnitio.
c. A declaration that the plaintiff is the legal owner of parcel NO. MITI MINGI BLOCK 3/1681 and therefore the proposed 4th defendant's title deed in respect of plot No. 1681 BARUT FARM be cancelled and the plaintiff be registered as the owner.
d. Costs and interests of the suit.
e. Any other order relief that this Honourable Court deem fit to grant.
The plaintiff states that at all material times, he was a shareholder of Kalenjin Enterprises since 1980. In 1990, he was allocated plot no 1681 in the Barut farm by virtue of his shareholding whereupon he took possession and settled with his family and immediately fenced and built a house. The 1st defendant in 1991 claimed ownership of the said parcel of land resulting in the plaintiff filing Nakuru High Court Civil Case number 529 of 1991 seeking an injunction to restrain the defendant in the dealing with the plot in any manner. The plaintiff contends that he fenced the plot and erected a house on the said plot and occupied the same since 1990 until 1992 when there were tribal clashes and he left for Kisii with his family. During his absence when there were tribal clashes, the 1st and 2nd defendants processed and obtained papers of allotment and a title deed in respect of the said plot for the 3rd defendant to the detriment of the plaintiff and in clear contempt of court order dated 21st August 1991. The defendants filed their respective defenses but did not appear on the hearing dates and did not tender any evidence.
On the 19th June 2023, the plaintiff testified before this court and began by adopting his statements dated 11th November 2019 and the further statement filed on 27th May 2016 as his evidence in chief. He states that he bought the land in 1977 from Cheruyot Arap Maritim who was his friend and was issued with a membership certificate after the name of Maritim was cancelled and his name was inserted as the new member of Kalenjin Enterprises.
On cross examination by Mr Akango, learned counsel for the 4th defendant he stated that he bought the shares from Cheruyoit Arap Maritim and that the shares were to make him a member of the Kalenjin Enterprises and to entitle him to a parcel of land. The two shares gave him 3.6 acres. He was allocated the parcel of land known as Miti Mingi/ Mbaruk/ 1681 and was issued receipt number 543367, at the back was the reference to Miti Mingi/ Mbaruk/ 1681 He states that when he went back to the land, he found the defendants had done their fence. He agreed that he is not in occupation.
On Cross examination by M/s Ademeyon, learned state Counsel, he states that he does not blame the land registrar for any fraud. The Kalenjin Enterprises was issuing the allotment letters and had their own surveyor and not a government surveyor. The defendants neither testified nor called any witness to support their defence.
The Plaintiff submits he has been a shareholder of Kalenjin Enterprise since 1980 and by that virtue, he was allocated plot no. 1681 by the said company. He and his family took possession of the said plot and immediately fenced and built a house. The 1st defendant in 1991 claimed ownership of the said parcel resulting in the plaintiff filing High Court civil case number 529 of 1991 requesting for injunctive orders. He then fenced the plot and erected a house on the land and occupied the same until 1991-1992 when tribal clashes occurred and he left for Kisii with his family. When he was absent the 1st and 2nd defendants proceeded to process and obtain allotment letters and title deeds in respect of the parcel of land and in total contempt of the orders of the court issued on 21st August 1991. The defendants therefore colluded to defraud the plaintiff of the parcel of land known as parcel NO. MITI MINGI BLOCK 3/1681 previously called plot No. 1681 BARUT FARM contrary to the law and at the detriment of the plaintiff.
The plaintiff produced the list of documents dated 11th June 2021 where the sale agreement, affidavit, court order, receipt, share certificate among other documentation as to how he acquired the property. The defendants failed to appear during the date of hearing despite clearly being aware of the ongoing case. They did not proceed for defence hearing, a clear case pf showing disinterest on the case.
According to the Plaintiff, his evidence is clear, consistent and uncontroverted. The Plaintiff testified that he has been a shareholder of Kalenjin Enterprise (the 2nd Defendant) since 1980, and by virtue of that shareholding, he was duly allocated Plot No. 1681 BARUT FARM. Upon allocation, the Plaintiff immediately took actual possession of the land, fenced it, constructed a house, and settled thereon with his family. This evidence was supported by documentary proof including:
a. Share certificate issued by the 2nd Defendant;
b. Sale agreement and receipts evidencing payment;
c. Affidavits confirming allocation and possession;
d. Court orders issued in High Court Civil Case No. 529 of 1991; and
e. Other supporting documents contained in the Plaintiff's List of Documents dated 11th June 2021.
The Plaintiff submits that he has therefore demonstrated a clear root of title, tracing his ownership from allocation by the land-buying company through possession and occupation, which the law recognizes and protects. Prior Court Orders and Contempt by the Defendants. The Plaintiff submits that upon the 1st Defendant unlawfully laying claim to the suit land in 1991, the Plaintiff moved this Honourable Court in HCCC No. 529 of 1991, where injunctive orders were issued on 21st August 1991, restraining any dealings with the suit property.
Despite the existence of valid court orders, and while the Plaintiff was away during the 1991–1992 tribal clashes, the 1st and 2nd Defendants colluded to process allotment letters and procure title documents in blatant contempt of court orders. It is trite law that acts done in disobedience of court orders are illegal and null. This Court cannot sanction or protect rights acquired through contempt. Any subsequent registration flowing from such acts is tainted with illegality and must fall. The Plaintiff has pleaded and proved fraud with particularity, including Processing title while court orders were in force; Disregarding the Plaintiff's prior allocation and possession; Collusion between the 1st and 2nd Defendants to defeat the Plaintiff's interest; Procuring registration in favour of the 4th Defendant without lawful basis. Fraud, once proved, vitiates even a registered title. Section 26(1)(b) of the Land Registration Act expressly allows this Court to impeach a title obtained through fraud, misrepresentation, illegality or un-procedural means. The Defendants, despite being duly served and fully aware of the proceedings, failed to attend court and tender any evidence. They neither challenged the Plaintiff's documents nor rebutted his testimony. The law is settled that uncontroverted evidence is deemed admitted. In the absence of any defence evidence, the Plaintiff's case stands firm and unshaken.
While discussing the standard of proof in civil liability, the plaintiff relies on the Court of Appeal in Mumbi M'Nabea vs David M.Wachira [2016] eKLR and as reiterated in Maiyebei v Chesebe (Environment and Land Appeal E022 of 2023) [2025] KEELC 5294 (KLR) (10 July 2025) (Judgment) stated as follows: "In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not."
The plaintiff submits that in the present case, he has overwhelmingly discharged this burden. His evidence is documentary, consistent, logical and supported by prior court orders, while the Defendants offered nothing in rebuttal.
According to the plaintiff, he has demonstrated that he is the lawful and bona fide owner of Parcel No. MITI MINGI BLOCK 3/1681, and that the registration in favour of the 4th Defendant was fraudulent, illegal and void ab initio. The Plaintiff humbly urges this Honourable Court to protect the sanctity of court orders, uphold the rule of law, and prevent unjust enrichment by granting all the prayers sought in the Further Amended Plaint. The Plaintiff prays that judgment be entered as prayed in the Further Amended Plaint, with costs and interest.
Analysis and Determination
On whether the titles issued to the defendants should be nullified, the issue of indefeasibility of title comes into question. Indefeasibility of title is a legal principle, central to the Torrens system of land registration, which establishes that a registered proprietor’s title to land is conclusive, unchallengeable, and immune from attack by prior unregistered interests or defects in the chain of title. The Core Principle is that Registration serves as the definitive evidence of ownership, providing state-backed certainty and simplifying property transactions by eliminating the need for exhaustive historical title searches. Indefeasibility is not absolute; it is subject to limited statutory exceptions, including fraud, forgery, mis-description, Corrupt Schemes and certain overriding interests (such as short-term leases, easements, or rights of persons in actual occupation).
The Judgment of the Supreme Court of Kenya in Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) established that indefeasibility is not absolute and does not sanction illegal or irregular allocations of public land; if the "root of title" was procured through unlawful processes, the resulting registered title can be declared a nullity ab initio, regardless of the purchaser's good faith. Consequently, while registration confers strong presumptive ownership, courts now require scrutiny of the legality of the initial allocation, meaning a title is indefeasible only if it was issued in compliance with applicable laws and procedures. The Supreme Court of Kenya has resolved the contradicting position of a bona fide purchaser. It emphasized, in Dina Management Limited v County Government of Mombasa & 5 others (supra) that one must go to the root of the title to satisfy oneself as to its validity.
In Arthi Highway Developers Limited v West End Butchery Limited & 6 others (2015), the Court of Appeal held that the appellant was not a bona fide purchaser. It reasoned that the appellant's documents of share transfer were marred with forgeries and never bound the respondents in any way. These documents were subsequently used by fraudsters to sell the suit property to the appellant who then sub-divided it into different parcels.
The Court held that no valid title passed to the appellant since it was irredeemably fake, noting that titles acquired by subsequent purchasers of the subdivisions were also null and void.
Conversely, in Tarabana Company Limited v Sehmi & 7 others (2021)EKLR, the Court determined the appellant to be a bona fide purchaser as the title to the property, however acquired illegally, was indefeasible and acquired before the appellant came into the picture.
In Funzi Development Ltd & Others v County Council of Kwale:
"a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot on the basis of indefeasibility of sanction on illegality or gives its seal of approval to an illegal or irregularly obtained title."
Article 40 of the Constitution entitles every person to the right to property, which is conditional on Article 40(6) which limits the right as against any property proved to be unlawfully acquired.
Sction 26 of the Land Registration Act 2012 provides as follows:-
1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.
This court finds that the plaintiff evidence was not controverted. However, while uncontroverted evidence is significant, it does not automatically prove a case as truth without judicial interrogation. The court must still ensure the evidence is credible and logical. As stated in Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya), the plaintiff remains obligated to prove his case on a balance of probabilities even if the defendant’s defense is merely allegations.
Under Sections 107 and 108 of the Evidence Act Cap 80 Laws of Kenya, the party asserting a fact must prove it. If the defendant files a statement of defense but adduces no evidence, their defense remains "mere allegations," shifting the practical burden to the plaintiff to demonstrate that their uncontroverted evidence is sufficient to establish liability. Unchallenged evidence implies no objection was raised during cross-examination, "uncontroverted" specifically means the evidence was not disputed or denied by the opposing party’s substantive evidence. Courts emphasize that uncontroverted evidence must still "bring out the fault and negligence" clearly; a court should not accept it as truthful solely because it is unchallenged if it lacks logical consistency or corroborating facts.
In this matter, the plaintiff has not demonstrated that he was allocated plot number 1681 Barut Farm and that the secretary of the allocation committee was not happy with his being allocated the plot no 1681 and that he forged or removed his name from the register and entered Chepkwony Chumo. The register for the members of Kalenjin Enterprises in respect of the Barut Farm was not produced to assist the court in determining this matter. The plaintiff states that his name was not appearing in the allocation register. The plaintiff has not demonstrated that the defendants acted fraudulently. Moreover, there is no evidence on record that the registration of the land in the names of Eunice Chumo was done illegally and that the subsequent transfers to Gideon Kipyegon Rop and Cheruyoit Henry Kiptanui were done fraudulently. The burden of proof rested with the plaintiff to prove fraud on a balance of probabilities. The burden of proof in civil cases in Kenya is governed by the Evidence Act, Cap 80 and follows the principle that the party who alleges must prove.
The Legal Burden as underpinned in Section 107(1), lies on the person who seeks a judgment on a legal right or liability dependent on the existence of asserted facts. This burden remains constant on the party invoking the law throughout the trial.
The Standard of Proof in Civil cases require proof on a balance of probabilities, meaning the plaintiff must demonstrate that their case is more likely than not true, a lower standard than the "beyond reasonable doubt" required in criminal cases.
Evidential Burden as underpinned in Sections 109 and 112 depicts the burden to prove a particular fact which lies on the person wishing the court to believe it exists. This burden may shift depending on the circumstances, such as when a fact is especially within the knowledge of one party. Under Section 108, the burden lies on the person who would fail if no evidence at all were given by either side; failure to discharge this burden results in losing that specific issue or the case. In this matter, even in the absence of the defendants, the plaintiff has a duty to discharge the burden of proof which he has not done.
On fraud, in civil cases, allegations of fraud must be specifically pleaded with distinct particulars and strictly proved through evidence. Fraud cannot be left to inference; the pleader must set out the specific acts alleged to be fraudulent and state that they were done fraudulently. The standard of proof for fraud is higher than the ordinary civil standard of proof on a balance of probabilities but lower than the criminal standard of proof beyond reasonable doubt. Courts require "something more than a mere balance of probabilities," demanding evidence of high strength and quality to meet this elevated civil standard.
Key legal principles established in cases such as Vijay Morjaria v Nansingh Madhusingh Darbar, Kinyanjui Kamau v George Kamau Njoroge, and R.G. Patel v Lalji Makanji include are that fraud must be distinctly alleged on the face of the pleading, outlining the acts and stating they were done fraudulently. The party alleging fraud bears the burden to discharge it; vague or general allegations are insufficient. Mere suspicion or equivocal language is not enough; the evidence must clearly demonstrate dishonesty. Fraudulent conduct must be distinctly proved and cannot be inferred merely from surrounding facts that are consistent with innocence. The plaintiff has not proved fraud as required by law.
Though the plaintiff’s evidence is not controverted, there is no scintilla of evidence that the title for parcel number Miti Mingi Block 3/1681 was obtained through illegality, Misrepresentation, fraud or corrupt scheme or un-procedural process.
I do agree with Mulwa J, in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR where she stated as follows;-
“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.
The upshot of the above is that the suit is dismissed with no order as to costs