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Wang'ang'a v Kimethu (Civil Appeal E19 of 2020) [2026] KECA 1551 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1551 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E19 of 2020 K M'Inoti, EC Mwita & B Ongaya, JJA July 31, 2026 Between Joseph Patrick Wang'ang'a Appellant and Patrick Kimethu Respondent (Appeal from the judgment and decree of the Environment & Land Court at Thika (Gacheru, J.) dated 29th November 2019 in ELCCA No. 20 of 2019 Environment & Land Case 20 of 2019 ) Judgment 1.This is a second appeal. By a judgment dated 12th August 2013, the Resident Magistrates Court at Kiambu held that the registration of the appellant, Joseph Patrick Wang’ang’a, as owner of LR No. Komothai/Karatina/217 (the suit property) was obtained fraudulently and through misrepresentation, and ordered the District Land Registrar, Kiambu, to rectify the register by substituting the name of the appellant for that of Hosea Kimethu Kanyi, alias Kimethu Bau Kanyi (the deceased). That judgment of the subordinate court was upheld on appeal by the Environment & Land Court (ELC) at Thika (Gacheru, J.) in a judgment dated 29th November 2019. The appellant was aggrieved and lodged the current appeal. 2.In his suit, which was filed in the subordinate court in Thika before being transferred to Kiambu, the deceased pleaded that the appellant was his son and the registered owner of the suit property measuring approximately 4.80 acres. He averred that in 1994, the appellant requested him to sign some forms to facilitate connection of electric power to his house on the suit property, which the deceased did. He added that he was illiterate and did not understand the meaning of the forms. In March 1996, he was surprised to find that the suit property had been transferred and registered in the name of the appellant. He further averred that the registration of the suit property in the name of the appellant was procured by fraud or through misrepresentation because he still retained the original title. 3.The appellant delivered a defence dated 17th July 1996 and denied the deceased’s averments, and specifically that that the deceased was illiterate or that he had sought his approval for supply of electricity. He also denied having procured the registration of the suit property in his name by fraud or misrepresentation. 4.The appellant also objected to the suit, claiming that it did not set out the particulars of fraud as required by law and that the court did not have jurisdiction in the matter. 5.After the death of the deceased, the suit was taken over by another of his sons, Patrick Kimethu, the respondent in this appeal. Three witnesses testified in the trial court in support of the deceased’s case, while the appellant testified on his own behalf and called one witness. The trial court framed four issues for determination, namely:i.Whether the transfer of the suit property to the appellant was obtained by fraud;ii.Whether the transfer documents were properly executed by the deceased;iii.Whether the failure to plead particulars of fraud was fatal to the deceased’s case; andiv.Whether the respondent’s registration as owner of the suit property should be nullified and substituted with that of the deceased. 6.By the judgment dated 12th August 2013, the trial court found that the suit property was transferred to the appellant fraudulently; that the transfer was not duly executed by the deceased; that although the deceased’s case could have been pleaded better, the failure in pleading was procedural rather than substantive and curable under Article 159(2) of the Constitution; that in any event the deceased’s plaint disclosed sufficient particulars of fraud which did not prejudice the appellant. Accordingly, the court entered judgment in favour of the deceased and ordered the Land Registrar, Kiambu District to rectify the register within 30 days by cancelling the name of the appellant and substituting therefor the name of the deceased. 7.The appellant was aggrieved and lodged a first appeal in the ELC, contending, among others, that the trial court erred by finding in favour of the respondent who had failed to specifically plead the particulars of fraud as required by Order 2 rule 4(1) of the Civil Procedure Rules; by holding that the requirement to plead fraud was procedural rather than substantive; by misinterpreting and misapplying Article 159(2) of the Constitution; by relying on the evidence of a purported expert who did not satisfy section 48 of the Evidence Act; and by holding that the registration of the suit property in the name of the appellant was fraudulent. 8.The first appellate court framed two issues for determination, namely:i.whether the respondent specially pleaded fraud, and if not, whether it was fatal to his case; andii.whether the respondent had proved his case in the trial court. 9.On the first issue, the ELC found that the respondent had clearly particularised the acts and omissions constituting the fraud that he alleged against the appellant and that the appellant hadspecifically responded to the respondent’s averments as regards the fraud. On the second issue, the first appellate court held that the respondent proved his case because he still held the original title to the suit property; the signature on the transfer was different from his known signature and the identity card number on the transfer was not his. 10.The appellant was, once more, aggrieved and preferred this second appeal based on five grounds of appeal, which in his written submission dated 3rd March 2021 he compressed into two issues, in which he contends that the ELC erred by:i.failing to hold that the respondent had not specifically pleaded fraud as required by Order 2 rule 4(1) of the Civil Procedure Rules; andii.finding that the trial court properly admitted the evidence of PW3, yet he did not qualify as an expert as defined by the Evidence Act. 11.Prosecuting the appeal, Mr. Manyara, learned counsel for the appellant, submitted that by dint of Order 2 rule 4(1), the deceased, whose case against the appellant was founded on fraud, was obliged to specially plead the particulars of fraud. Instead of complying with the said Order and rule, the deceased merely made a blanket claim that the suit property was transferred fraudulently and or through misrepresentation. 12.The appellant relied on the decision of this Court (Tunoi, JA) in Vijay Morjaria v. Nansingh Madhusingh Darbar & Another [2000] KECA 223(KLR) for the propositions that fraud must be specifically pleaded and the particulars thereof must be stated on the face of the pleading, and further that fraudulent conduct must be distinctly alleged and distinctly proved because it is not allowed to leave fraud to be inferred from facts. The appellant submitted that the purpose of the requirement that fraud must be specifically pleaded is to avoid ambush and to put the other side on notice to enable it to adequately prepare to respond to the alleged fraud. It was contended that the failure by the appellant to specifically plead the alleged fraud was fatal to his case. 13.The appellant further submitted that the ELC erred by invoking Article 159 of the Constitution and holding that failure to plead fraud was procedural rather than substantive. He relied on the decisions of this Court in Emfil Ltd v. Registrar of Titles, Mombasa & 2 Others [2014] KECA 348 (KLR) and Bruce Joseph Bockle v. Coquero Ltd [2014] KECA 682 (KLR), and submitted that allegations of fraud are serious and require strict pleading and proof on a higher standard than on a balance of probabilities. The Emfil decision was also deploy in support of the contention that Article 159 of the Constitution does not allow a party to ignore rules of pleading and evidence. 14.The appellant further contended that without the respondent specially pleading fraud, the court had no business entertaining the suit because parties are bound by their pleadings. It was also submitted that, apart from failing to plead fraud, the evidence adduced by the appellant did not prove fraud to the required standard of above a balance of probabilities. 15.Turning to the second issue of appeal, the appellant submitted that the ELC erred by upholding the admission of inadmissible evidence from an unqualified expert contrary to section 48 of the Evidence Act. It was contended that under that provision, an expert is a person who is specially skilled in an art and that PW 3, who testified as an expert witness, did not produce a certificate vouching for his training. In the absence of evidence of PW3’s skill, it was submitted that the witness was not an expert and that his evidence was inadmissible as evidence of an expert. 16.Counsel also submitted that the trial court and the ELC erred by relying on the report of PW2, which was not produced after an objection was raised. He relied on the decision of this Court in Mwige v. Kiguta & 2 Others [2015] KECA 334 (KLR) regarding the proper procedure of producing documents in court. For the foregoing reasons, the appellant urged the Court to allow the appeal with costs. 17.The respondent, represented by Mr. Agwel, learned counsel, opposed the appeal vide written submissions dated 6th April 2021. Counsel submitted that the purpose of the requirement to plead fraud specifically is to enable a defendant to understand the allegations against him and to respond appropriately. He added that the fact that the appellant responded to the allegations of fraud or misrepresentation in the deceased’s suit was sufficient indication that the deceased had sufficiently pleaded fraud and misrepresentation and that the appellant had suffered no prejudice. 18.It was further contended that the deceased had pleaded sufficient particulars of the fraud committed by the appellant in that he indicated that he was initially the registered owner of the suit property; that the appellant requested him to execute forms to supply electric power to his house on the suit property, which he did; that thereafter the respondent discovered that the suit property had been transferred to the appellant without his knowledge and consent; and that the said transfer was procured by fraud or misrepresentation because he still had in his possession his original title. 19.The respondent submitted that in his defence, the appellant responded to the allegations of fraud, which was proof that the fraud had been sufficiently pleaded and that the appellant understood the allegations against him. In support, the respondent relied on the decision of this Court in Denis Noel Mukhulo Ochwada & another v. Elizabeth Murungari Njoroge & Another [2018] KECA 726 (KLR) on what constitutes sufficient pleadings and added that Order 2 rule 4(1) of the Civil Procedure Rules does not require that particulars of fraud be set out in a particular form or order, so long as they are sufficiently particularised in the pleadings. 20.Turning to the second issue on expert witness, the respondent submitted that there was no basis for holding that PW3, a former police officer in document examination was not an expert as defined by section 48 of the Evidence Act. It was contended that this ground was an afterthought as the appellant did not challenge the qualification of PW3 at trial. It was also contended that the evidence of PW3 corroborated that of the respondent, who by virtue of section 50 of the Evidence Act was familiar with the deceased’s signature and testified that the signature on the transfer was not that of the deceased. 21.It was also the respondent’s submission that fraud was proved to the required standard because the deceased retained his original titles and that the same was not surrendered as required by section 33(1) of the Registration of Land Act. It was further urged that there was no verification of names as required by section 110 of the Registration of Land Act, because the transfer indicated the transferor as Kimethu Wambau, while the identity card of the deceased indicated his name as Kimethu Bau Kanyi and the name on the title as Kimethu Wabau. 22.As further proof of fraud, the respondent submitted that the transfer was not dated and was presented for registration more than one year after its purported execution. 23.As regards the evidence of PW2, the respondent submitted that the witness was a fingerprint examiner with the National Registration Bureau and that there was no objection raised by the appellant against his testimony. Further, that PW2 duly produced his report as exhibit 13 and was cross-examined by the appellant’s counsel. 24.The respondent also submitted that the two courts below did not misinterpret or misapply Article 159 of the Constitution and relied on the decision of the Supreme Court in Raila Odinga & 5 Others v IEBC & 2 Others [2013] eKLR on circumstances under which Article 159 may be invoked. For the foregoing reasons, the appellant urged the Court to dismiss the appeal with costs. 25.We have carefully considered this appeal and the submissions by both the appellant and the respondent. Being a second appeal, it is limited to issues of law only, the issues of fact having been settled by the concurrent findings of the trial and first appellate court. The approach of the Court in a second appeal is well articulated by Onyango-Otieno, JA in Kenya Breweries Ltd v. Odoyo [2010] KECA 498 (KLR):“In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyse it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of a retrial and facts must be revisited and analysed a fresh, - see Selle and another v. Associated Motor Boat Co. Ltd and others [1968] EA 123. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.” (Emphasis added). 26.The issues of law raised by the appeal are whether the ELC erred by:i.holding that the respondent had sufficiently pleaded fraud;ii.relying on Article 159 of the Constitution as regards the pleadings;iii.admitting the evidence of PW3 wrongfully and in violation of section 48 of the Evidence Act,iv.relying on the report of PW2 which was never formally produced in court as an exhibit; andv.holding that the respondent had proved fraud against the appellant to the required standard. 27.Starting with pleading of fraud, Order 2 rule 4(1) of the Civil Procedure Rules provides for matters which must be specifically pleaded and reads as follows:“(1)A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant statute of limitation or any fact showing illegality—a)which he alleges makes any claim or defence of the opposite party not maintainable;b)which, if not specifically pleaded, might take the opposite party by surprise; orc)which raises issues of fact not arising out of the preceding pleading.” (Emphasis added). 28.This Court has pronounced itself on pleading of fraud and consistently held that fraud must be specifically pleaded. Thus for example, in Vijay Morjaria v. Nansingh Madhusingh Darbar & Another [2000] KECA 223 (KLR), Tunoi, JA held that:“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 these 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.” 29.Subsequently in Kinyanjui Kamau v. George Kamau [2015] eKLR the Court reiterate as follows:“It is trite law that any allegation of fraud must be pleaded and strictly proved…In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.” 30.In Denis Noel Mukhulo Ochwada & Another v. Elizabeth Murungari Njoroge & Another (supra), which was cited by the respondent, this Court stated thus:“We would readily agree with the appellants that to succeed on a claim founded on fraud, the fraud must be pleaded and particularised.” 31.In determining whether a party has specifically or sufficiently pleaded and particularised fraud, we believe that the proper approach is not to invoke Order 2 rule 4(1) like a mantra or to recite it like some mystical incantation, but to consider soberly, in the context of the case, whether the party alleging fraud has identified with precision and specificity the acts or omissions alleged to constitute fraud on the part of the opposite party, so as to enable that party to respond sufficiently to the allegations. 32.In assessing the sufficiency of the pleading, account must be taken of the primary purpose of pleadings in the first place. As this Court held in Mohamed Fugicha v. Methodist Church in Kenya [2016] eKLR:“We apprehend that the primary purpose of pleadings is to communicate with an appreciable degree of certainty and clarity the complaints that a pleader brings before the court and to serve as sufficient notice to the party impleaded to enable him to know what case to answer.” (Emphasis added). 33.In his plaint, the deceased pleaded as follows:“ 5)In the year 1994, the 1st defendant (the appellant) approached the plaintiff (the deceased) who is his father and sought authority to instal electric power supply to his home situate on land parcel Komothai/Karatina/217 whose authority was given. 6)Pursuant to the said authority, the plaintiff was made to sign some forms allegedly for the power supply, but could not understand their purpose since he is illiterate. 7)In March 1996 the plaintiff discovered that his then land Komothai/Karatina/217 was transferred to the 1st defendant on 31st January 1996 without his knowledge or consent. 8)The plaintiff contends that the above cited transfer of land parcel Komothai/Karatina/217 was done fraudulently and or through misrepresentation as he still keeps the original title and the same was facilitated and abetted by the 2nd defendant (the District Land Registrar, Kiambu).” 34.In response, the appellant pleaded thus, in his defence:“ 6)The 1st defendant (appellant) denies having ever procured the suit land fraudulently and or misrepresentation and puts the plaintiff to strict proof thereof.” 35.From his pleadings, it is clear and specific beyond peradventure what the deceased was alleging against the appellant. It was that in 1994, when the suit property was still registered in the name of the deceased, the respondent made the deceased to sign some forms purporting to be for supply of electricity to the respondent’s house which was on the suit property. The deceased signed the forms and was surprised to find out in March 1996 that the appellant had transferred the suit property to his own name on 31st January 1996, without the knowledge or consent of the deceased. The deceased further pleaded that the transfer was obtained through fraud or misrepresentation by the appellant because, in addition to the facts already pleaded, the deceased continued to retain the original title of the suit property, which would have been surrendered if indeed the suit property was lawfully and legally transferred to the appellant. 36.It was to those pleadings that the appellant respondent and denied having procured the transfer of the suit property in his name by fraud or misrepresentation. In his evidence before the trial court, the appellant claimed that the deceased voluntarily and willingly transferred the suit property to him, which assertion the two courts below rejected. 37.Having carefully considered this ground of appeal, we are satisfied that it does not have any substance because the deceased adequately pleaded and particularised the acts and omissions that he contended constituted fraud on the part of the appellant and that the appellant knew what the deceased had alleged against him and the case that he had to rebut at trial, and responded accordingly. 38.As regards invocation of Article 159 of the Constitution by the trial and the first appellate court, we are of the view that both courts, having agreed that the deceased had sufficiently pleaded the fraud he alleged against the appellant, it was quite unnecessary to invoke Article 159 (2) (d) of the Constitution. However, since the parties have raised and addressed us on the issue, we shall determine the same. 39.Article 159(2) (d) of the Constitution demands that justice shall be determined without undue regard to procedural technicalities. This Court and the Supreme Court have pronounced themselves on the implications and reach of that provision. In Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR) this Court held as follows:“In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under Section 1A and 1B of the Civil Procedure Act (Cap 21) and Section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases.” 40.In Odinga v. IEBC & 3 Others [2013] KESC 2 (KLR), the Supreme Court held, among others, that Article 159(2)(d) should not be read or applied in a manner that ousts the provisions of other clear Articles of the Constitution. The Court stated:“Article (159 (2) (d)) simply means that a court of law should not pay undue attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from courts of law. In the instant matter before us, we do not think that our insistence that parties adhere to the constitutionally decreed timelines amounts to paying undue regard to procedural technicalities. As a matter of fact, if the timelines amount to a procedural technicality; it is a constitutionally mandated technicality.” 41.In LSK v. Centre for Human Rights & Democracy & 12 Others [2014] KESC 29 (KLR) the Supreme Court reiterated that:“Indeed, this Court has had occasion to remind litigants that Article 159(2) (d) of the Constitution is not a panacea for all procedural shortfalls. All that the Courts are obliged to do, is to be guided by the principle that “justice shall be administered without undue regard to technicalities.” It is plain to us that Article 159 (2) (d) is applicable on a case-by-case basis.” [Emphasis added]. 42.And in Lamanken Aramat v. Harun Maitamei Lempaka, SC Petition No. 5 of 2014, the Supreme Court held:“[70] The Court’s authority under Article 159 of the Constitution remains unfettered, especially where procedural technicalities pose an impediment to the administration of justice. However, there are instances when the Constitution links certain vital conditions to the power of the Court to adjudicate a matter…(123)A Court dealing with a question of procedure, where jurisdiction is not expressly limited in scope – as in the case of Articles 87(2) and 105(1)(a) of the Constitution – may exercise a discretion to ensure that any procedural failing that lends itself to cure under Article 159, is cured. We agree with learned counsel that certain procedural shortfalls may not have a bearing on the judicial power (jurisdiction) to consider a particular matter. In most cases, procedural shortcomings will only affect the competence of the cause before a Court, without in any way affecting that Court’s jurisdiction to entertain it. A Court so placed, taking into account the relevant facts and circumstances, may cure such a defect; and the Constitution requires such an exercise of discretion in matters of a technical character.” 43.The above decisions establish that whether Article 159 (2) (a) is relevant and applicable in a case is determined on a case by case basis. Where the legal requirement that a party wishes waived under Article 159 is purely a procedural requirement that does not impinge on the jurisdiction of the court, the rights of a party, or any other provision of the Constitution and does not occasion any perceivable prejudice to the other party, the same may be overlooked. However, where the requirement affects the jurisdiction of the court or the rights of the other party, it is a substantive requirement which cannot be waived under Article 159. 44.In the instant appeal, we have underlined that the purpose of Order 3 rule 4(1) is to ensure that a party alleged to have committed fraud knows with clarity what is alleged against him and to afford him an opportunity to respondent adequately. This requirement is an important component of the right to a fair hearing guaranteed by Article 50 of the Constitution, which includes the right to be informed of the charge(s) with sufficient detail, to be able to answer to it. Once a provision of the law is enacted to implement or actualise a constitutionally guaranteed right without which the constitutional right remains illusory, we cannot fathom how that provision can be described as a mere procedural requirement. 45.In our view, Order 2 rule 4(1) of the Civil Procedure Rules is a substantive provision in furtherance of a constitutionally underpinned right to a fair hearing in cases involving, among others, allegations of fraud and is therefore not a mere procedural technicality. The two courts were therefore, in error to invoke Article 159 (2) (d) to waive the requirement of Order 2 rule 4(1) of the Civil Procedure Rules. However, as we have already stated, nothing much turns on that, in view of the finding that the deceased had, indeed, sufficiently complied with Order 2 rule 4(1) of the Civil Procedure Rules. 46.The next ground is whether the ELC erred in sanctioning the admission of the evidence of PW3, in violation of section 48 of the Evidence Act. 47.Before PW3, Martin Esakina Papa, testified, he was duly qualified by stating his training and expertise. He introduced himself as a forensic expert who was trained at the Criminal Investigation Department (CID) Training School and was the holder of a certificate in forensic document examination. When he testified, he had 15 years experience in his craft and was the director of a private security services firm known as Global Forensic Security Services. He produced in court as Exhibit 14 a report dated 23rd November 2012 in which he concluded that the signature on the transfer form attributed to the deceased was different from his signatures in his national identity card, bank card and in a letter he had signed dated 6th March 1996. 48.The appellant’s contention is that PW3 did not produce his certificate and was therefore not an expert witness. We do not think there is any merit in that contention. When the appellant’s counsel cross-examined PW3, he merely asked him whether he had any other certificate (presumably in addition to that from the CID Training School) to which the witness answered in the negative. The appellant did not challenge the witness’s training and experience and never asked him to produce his certificate from the CID Training School. The other questions put to the witness by the appellant’s counsel were on the circumstances under which the witness left the police service, which had nothing to do with whether or not he was a qualified forensic expert. 49.Section 48 of the Evidence Act, which the appellant claims was violated, provides for opinion of experts in the following terms:“ 48.(1)When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger or other impressions.(2)Such persons are called experts.” 50.Under the above provision, an opinion on the genuineness of handwriting is admissible evidence if the opinion is made by a person who is specially skilled in identification of handwritings. The requirement is that the competency of a person called as a witness should be established before his evidence is admitted. In this case as we have stated, PW3 was duly qualified before he testified, by answering questions on his training and experience, which we have set out above. 51.We are persuaded that what section 48(1) of the Evidence Act requires is special skill of the person testifying in the art in question, which skill would not be expected to be within the knowledge of the court. It is not possible, in the circumstances of this case, to fault the two courts below for finding that an officer trained in forensic document examination and with 15 years practical experience was not an expert within the meaning of section 48(1) of the Evidence Act. 52.Way back in 1954, the defunct Court of Appeal for Eastern Africa held in Gatheru s/o Njagwara v. R [1954] 1 EACA 384 that the special skill required of an expert is not confined to knowledge acquired academically, but includes skill acquired by practical experience. We agree with that view. 53.The appellant also argues that the report of PW2 was wrongfully relied upon by the two courts below, while the same was never produced in evidence after he raised an objection. The record shows that on 11th March 2013 before PW2, Oscar Crispus Opiyo, a fingerprint officer from the National Registration Bureau testified, counsel for both the appellant and the respondent informed the court that the appellant had not been served in advance with the witness’s report. However, by consent, PW2 was allowed to testify and he testified on the deceased’s identity card number and told the court that it was impossible for a number to be issued to more than one person. Exhibit 14 was the printout of the deceased’s first and second generation identity cards. 54.The trial court made an order as follows:“In view of earlier objection by Mr. Oyugi that he had not been supplied with document examiners report which plaintiff wishes to produce, case is hereby adjourned for further hearing on 8/4/2013 by consent.” 55.On 8th April 2014, PW2 was not recalled to produce his report.Instead, the court heard the evidence of PW3. We note that PW2’s report was not among the documents in the respondent’s list of documents and we therefore agree with the appellant that PW2’s report was never formally produced in court as an exhibit and that it was a misdirection for the two courts below to rely on it. 56.In Mwige v. Kiguta & 2 Others (supra), this Court held that:“A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.” 57.The last ground is whether the ELC erred by holding that the respondent proved fraud to the required standard. The starting point here is the standard of proof in cases where fraud is alleged. In R. G. Patel v. Lalji Makanji [1957] EA 314, the former Court of Appeal for Eastern Africa held that:“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.” 58.That position was reiterated by this Court in Vinesh Emporium Gudka v. Keshavji Jivraj Dodhia [1982] KECA 36 (KLR) where the Court held that:“fraud is an allegation that must be strictly proved. The fraudulent conduct must be strictly proved more than a mere balance of probabilities.” 59.So too in Ndolo v. Ndolo [1996] KECA 209 (KLR), the Court held:“Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases.” 60.The only question we have to determine is whether, excluding the evidence of PW2, which we found to have been wrongfully relied upon without production of the witness’s report, there is still evidence on record to prove fraud on the part of the appellant above a balance of probabilities, but not beyond reasonable doubt. In grappling with that question, we must reiterate that this being a second appeal, we are not called upon to revisit or re-evaluate the facts which have been settled by the concurrent findings of the two courts below. 61.The evidence which was accepted by the trial and the first appellate court is that as of 1994, the suit property was registered in the name of the deceased. In that year the appellant requested the deceased to sign some forms, purportedly to connect power to the appellant’s house which was on the suit property. In March 1996 the deceased discovered that the suit property was transferred and registered in the name of the appellant. That transfer was without his knowledge or consent, and he protested to the District Land Registrar Kiambu. As clear evidence of the fraud, the suit property was registered in the name of the appellant without surrender of the original title, which continued to be in the name and possession of the deceased. Further evidence of the fraud was adduced by PW3 who testified that upon comparing the known signatures of the deceased with that on the transfer form, he formed the opinion that the signatures were not from the same person. 62.We are satisfied that the totality of the evidence adduced by the respondent proved to the required standard that the transfer of the suit property from the name of the deceased to that of the appellant was procured fraudulently and through misrepresentation. 63.Accordingly, we find no merit in this appeal and dismiss the same with costs to the respondent. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.K. M’INOTI………………………………JUDGE OF APPEALE. C. MWITA………………………………JUDGE OF APPEALB. ONGAYA……………………………..JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.