https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4584

Irungu v Thiya (Environment and Land Civil Appeal E049 of 2021) [2026] KEELC 4584 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELC 4584 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Civil Appeal E049 of 2021 EK Makori, J July 2, 2026 Between John Chege Irungu Appellant and George Irungu Thiya Respondent (Appeal arising from the decision in CM Nyeri ELC No. 30 of 2018, delivered by the Honorable Nelly Kariuki, Senior Principal Magistrate, on November 11, 2021) Judgment 1.This is an appeal filed against the decision in CM Nyeri ELC No. 30 of 2018, delivered by Hon. Nelly Kariuki, Senior Principal Magistrate, on the 11th of November 2021. The Appellant filed a Memorandum of Appeal dated 14th November 2021, which sets out the following grounds:a.The learned Trial Magistrate erred in law and in fact in determining that the Plaintiff had successfully proved his case on a balance of probabilities.b.The Learned Trial Magistrate erred in law and in fact in holding that the 1st and 4th Defendants be required to refund the purchase price.c.The Learned Trial Magistrate erred in law and in fact by failing to find that the sale agreement was fraudulent and that the 1st Defendant was not a party to it, as his signature had been forged by his former wife, with whom he had separated and/or divorced.d.The Learned Trial Magistrate misdirected herself in law and in fact by legalizing fraud, because the 1st Defendant had reported the loss of his title document to the police regarding the parcel of land Aguthi/Gatitu/3457.e.The Learned Trial Magistrate erred in law and in fact in entering the judgment in favor of the plaintiff and condemning the 1st and 4th defendants to bear the costs. 2.The Appellant seeks the following orders:a.The appeal be allowed.b.The judgment delivered on the 11th of November 2021 be reviewed and/or set aside, and/or the suit be dismissed.c.The Respondent bears the costs of this appeal and of the Court below. Summary of the lawsuit before the Trial Court. 3.The suit was instituted in the Trial Court on July 18, 2017. The Respondent in this appeal was the Plaintiff. The Plaintiff averred that at all material times to the suit, the 1st Defendant, who is the Appellant herein, was the registered proprietor of Land Parcel Aguthi/Gatitu/3457. 4.The Plaintiff stated that, pursuant to an agreement dated July 5, 2013, the 1st Defendant and his wife, Esther Njoki Chege, consented to sell the entire suit property, LR Aguthi/Gatitu/3457, to him. 5.Consent by the Land Control Board to transfer the suit land from the Plaintiff to the 1st Defendant was granted. On the 25th of April 2013, the Plaintiff paid the 1st Defendant and his wife the full purchase price of Ksh. 360,000/= as the full and final settlement, in the presence of an Advocate and a witness. 6.The 1st Defendant requested that the Plaintiff allow him and his wife two months to move out and give vacant possession to the Plaintiff. 7.The Plaintiff also averred that on the 15th of May 2014, he conducted a valuation of the suit land, whereby the land and all the developments thereon were valued at Ksh. 700,000/= for the purpose of assessing stamp duty. The stamp duty was assessed at Kshs. 28,150/=, which he paid, and he presented this together with the Land Control Board consent, the original title deed, transfer form, PIN Certificate, and the Identity Cards to the parties to the 2nd Defendant. However, despite presenting these documents, the Plaintiff accuses the 2nd Defendant, the Land Registrar, Nyeri, of refusing to register the suit land in the Plaintiff's name. 8.Thus, the Plaintiff’s case was that the 2nd Defendant, the Land Registrar Nyeri named herein, still holds the said documents illegally and without lawful basis, and that the 1st Defendant still holds the purchase price of Kshs. 360,000/= 9.The Plaintiff sought the following orders:a.The 2nd Defendant does register Land Parcel Aguthi/Gatitu/3457 in the name of the Plaintiff and issue him with a title deed, the 2nd Defendant having previously verified that the Plaintiff’s documents are correct and in accordance with the Provisions of the Land Registration Act Cap 300.b.The 2nd Defendant to pay the Plaintiff General Damages for refusing to register the suit land in the Plaintiff’s name and for keeping the Plaintiff’s documents without any reasonable cause from 19th May 2014 to date.c.Costs of this suit and interest at the court's rates.d.Such better or other orders as this Honorable Court may deem just to grant. 10.The 1st Defendant filed his statement of defense, in which he admitted to being the registered owner of the suit property but denied that he had sold the land to the Plaintiff, adding that by the alleged time of the agreement on July 5, 2013, he had already long since separated from his wife in 2011. 11.Further, the 1st Defendant averred that in 2014 he learned that the Title Deed for the suit parcel of land was missing and/or lost, reported the matter, was issued a police abstract, and later requested a new title deed, and prayed that the suit be dismissed with costs. 12.The hearing of the suit began on September 4, 2018, when PW 1, the Plaintiff herein, adopted his witness statement and bundle of documents as his evidence in chief. In his statement, he reiterated the averments in his Plaint that he entered into an agreement with the 1st and 4th Defendants to purchase the suit property herein. After payment of consideration, obtaining all required documents, and presenting them to the Land Registrar, Nyeri, the transfer was not registered, and the Land Registrar still holds the completion documents. 13.On cross-examination, the Plaintiff stated that John Kimaita introduced him to the 1st Defendant and his wife, who intended to sell their land. When he visited the suit land, he found a 3-bedroom house there. Although the agreement for sale included the 1st Defendant’s wife, she is not registered on the title deed. He paid the purchase price of Ksh. 360,000/= on July 5, 2013. 14.It is also notable that the Plaintiff stated that the photo on the transfer form does not belong to the 1st Defendant and that his PIN was not listed on the form. 15.PW 1 later learned that the 1st Defendant had reported the title deed for the suit land as stolen and had reported the matter to the police, who now have the original title deed. It was gazetted as a lost title deed, and the Plaintiff was issued a new title deed, which he has now re-registered in his children’s and his own names. 16.PW 2, Theuri Mwangi, Advocate, gave his evidence in Court. He stated that he recalled a client named John Chege Irungu, the 1st Defendant; George Irungu Thiya, the Plaintiff herein; and Esther Njoki Chege, who were brought to his office by one Gideon Kimaita. The clients wished to sell Land Parcel Aguthi/Gatitu/3457. They brought their original ID Cards, PIN Certificates, and consent to transfer from the Land Control Board. He drafted the sale agreement, and the purchase price was Ksh. 360,000/= The said clients did not return to him until he received a witness summons to appear in Court. 17.Upon cross-examination, PW 2 stated that he did not detect any illegality in the transaction and did not conduct a search because they had already obtained consent from the Land Control Board. 18.DW1, the 1st Defendant, opened the Defense case. He stated that he knew the 4th Defendant as his wife and adopted his witness statement dated October 17, 2017, and his bundle of documents as his evidence in chief. 19.In his statement, he stated that he works at Kenya Power and Lighting Company (KPLC) and, at the time of the hearing, was stationed in Chuka. He recalled that in 2010, he was working in Nyeri and was later transferred to Nanyuki, where he worked for 5 years. During that period, he separated from his wife, and the divorce was finalized in Nyeri CM Divorce Cause 4 of 2016. 20.He denied ever meeting with the Plaintiff and was shocked to learn of the alleged purchase price of Ksh. 360,000/=, stating that his home has an approximate value of Kshs. 11,000,000/=. 21.DW 1 accused the Plaintiff of acting in cahoots with his wife to steal his land. After returning from Bridge Rehabilitation Center and learning that his title was missing, he reported it to the Land Registrar and the Police. He paid the requisite fees to the Government Printers to publish a notice of the lost title, which was published on January 30, 2015, in the Kenya Gazette, the Daily Nation, and The Standard newspapers. After 60 days, he went to the Land Registrar to collect his title deed but was told that someone had bought his land and was claiming the same title. 22.DW 1 was given the transfer documents to review and noted that the passport photograph affixed to them did not belong to him. The Plaintiff was summoned, failed to identify himself, and was arrested. DW 1 recorded a statement with the police, who promised to have him charged in Court together with his former wife, but they are still walking freely. 23.He denied receiving any money from the Plaintiff and also denied appearing before an advocate to execute land transfer documents. He prayed that the suit be dismissed with costs to himself. 24.Upon cross-examination, DW 1 denied that the signature and photo on the transfer form were his and also denied knowing the Plaintiff. He stated that his two children reside on the suit land in Nyeri. 25.The Defense case was closed, and judgment was delivered on 11th November 2021 by the Trial Court, which found that the 1st Defendant's allegations of fraud in the agreement of sale were not substantially corroborated by evidence and entered judgment in favor of the Plaintiff. However, the Trial Court issued alternative orders to those prayed for by the Plaintiff, providing that the 1st and 4th Defendants are to jointly and severally refund the Plaintiff the purchase price received from him, plus 20% compound interest per annum, and any other costs the Plaintiff incurred in relation to the agreement, as well as costs at court rates. It is this judgment against the 1st and 4th Defendants that the Appellant appealed. 26.The parties submitted written submissions, which the Court has duly read and considered. Analysis and Determination 27.As this is a first appeal, the Court must be guided by the mandate to re-evaluate the evidence presented before the Trial Court, while taking note that it did not have the opportunity to hear the witnesses firsthand. This duty was succinctly stated by the Court of Appeal in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to reevaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212, wherein the Court of Appeal held inter alia that:“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 28.The suit in the Trial Court was instituted by the Respondent herein, who claimed that he entered into an agreement with the Appellant herein and his wife to purchase Land Parcel Aguthi/Gatitu/3457 on July 5, 2013. 29.The Appellant, on the other hand, denied ever entering into any such agreement with the 1st Defendant and stated that the signature and photograph on the transfer forms were not his. 30.The Appellant has raised several grounds of appeal, which can be summarized as one issue for determination: Was the agreement dated July 5, 2013, and the subsequent transfer documents fraudulent? 31.In re-evaluating the evidence before the Trial Court, the Respondent filed and produced in court the Agreement for sale, Application to and consent from the Land Control Board, a transfer fee receipt dated 19th May 2014, as well as the land transfer forms, the stamp duty assessment, and the pay-in slip. 32.Further, witness PW 2, Theuri Mwangi, Advocate, testified that he recalled the parties herein, as well as Esther Njoki Chege, coming to his office with one Gideon, with the intention of selling Land Parcel Aguthi/Gatitu/3457. He drafted their agreement for sale, which he signed and stamped, and which was also witnessed by one Gideon Kimaita, whom he said brought them to his office. 33.In his submissions, the Appellant states that he did not sign the agreement for sale, yet a signature appears beside his name in that agreement. Before the Trial Court, he denied that the signature under his name in the documents was his. Notably, a document examiner was not called as a witness to disprove his signature or prove that it was forged. It is trite law that fraud must be specifically pleaded and proven. The Appellant, in his submissions, relied on the Court of Appeal authority of Arthi Highway Developers Ltd v Cooperative Society Ltd (Civil Appeal 246 of 2013) [2015] KECA 816 (KLR), in which the Court 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.” 34.It is the Appellant who brought forth the allegation of fraud. He did not, however, plead this in a counterclaim and made no effort to prove any element of fraud in the transaction. Aside from informing the Court that, at the time, he was at a rehabilitation center, which does not prove fraud, as this does not incapacitate a person from entering into a land transaction, there was no other proof. To any reasonable person’s eye, there was nothing to indicate any issues in the transaction documents, as the Advocate stated in Court, aside from the photograph that was not the Appellant’s, which would be assumed to have been presented by him, as is the usual practice in land transactions, where each party brings their own passport photograph. He also accuses his former wife of being party to the fraud, but did not prove the same. 35.In our Kenyan legal system, the burden of proof lies with the party seeking the Court's belief in the facts they claim. The Respondent proved a land transaction involving the suit property through the documents and evidence he presented; it was up to the Appellant to prove his allegation that the transaction was fraudulent. 36.The Court of Appeal in the case of Mumbi M'Nabea v David M. Wachira [2016] eKLR stated as follows while commenting on the burden of proof in the Kenyan context and noted that:“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. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows: -“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.”The above provision provides for the legal burden of proof. However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows: -“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.”The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v Blue Shield Insurance Company Limited - Civil Appeal No. 101 of 2000 [2005] 1 EA 280, where it was held that: -“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.” 37.It is therefore my finding that, because the Appellant proved no fraud, the Trial Court was correct in awarding the Respondent a refund of the purchase price, and there is no need to disturb the finding of the Trial Magistrate. Consequently, the appeal has no merit. It is dismissed with costs. DATED, SIGNED, AND DELIVERED VIRTUALLY IN NYERI ON THIS 2ND DAY OF JULY 2026.E. K. MAKORIJUDGEIn the Presence of:Mr. Makora for the AppellantRespondent (in person)Denis - Court Assistant