https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3362

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC APPEAL CASE NO. E025 OF 2022** **JUSTINE MAJAU MIRITI………..…..............................APPELLANT** **=VERSUS=** **BROWN MBAABU *(Deceased person represented*** ***by his Personal Representative,*** ***MORRIS K GICHURU LUKA)*.....................................RESPONDENT** ***(An Appeal against the Judgment of the Principal Magistrate Court at Nkubu (Hon J Irura, PM), rendered on 28/4/2022 in Nkubu PMC E & L Case No. 21 of 2017)*** **JUDGMENT** **Introduction** 1. This appeal challenges the Judgment rendered by the Principal Magistrate Court at Nkubu [***Hon J Irura, PM***] on 28/4/2022 in **Nkubu PMC E & L Case No 21 of 2017**. One of the issues that arose for determination in the suit was whether the estate of the late Brown Mbaabu pleaded and proved fraud and illegality in the registration of land parcel number **Igoji/Kinoro/2573** in the name of the appellant. Invariably, this is one of the key issues that fall for determination in this first appeal. Before I analyse and dispose the issues that fall for determination, I will briefly outline the background to the appeal; the grounds of appeal; and the parties’ respective submissions in the appeal. **Background** 1. Presumably, as a person of sound mind, the late Brown Mbaabu personally sued the appellant vide a plaint dated 7/5/2009 in **Meru CMC Civil Case No 212 of 2009**. The late Mbaabu alleged that, at all material times, his late father, **M’Rimunya M’Ichunge**, owned land parcel number **Igoji/Kinoro/575** which he subdivided into 11 portions and shared 10 portions to his sons. He sold to the appellant the eleventh portion. He contended that he was allotted subdivision parcel number **Igoji/Kinoro/2327** but his father did not transfer to him the said parcel. 2. The late Mbaabu further alleged that the appellant exploited his [the late Mbaabu] mental incapacity and the knowledge of his [the late Mbaabu] father’s particulars and “falsely and fraudulently” transferred parcel number 2327 into his [the late Mbaabu] name; subsequently subdivided the land into parcel numbers 2573 and 2574; and thereafter transferred parcel number 2574 to him [the late Mbaabu] and parcel number 2573 to himself [the appellant]. He urged the trial court to find that transfer of parcel number 2573 to the appellant was fraudulent, illegal and unlawful and cancel it. 3. The appellant filed a defence dated 7/7/2024 in which he denied the late Mbaabu’s claim. He denied transferring parcel number 2327 into the late Mbaabu’s name. He also denied subdividing parcel 2327 fraudulently and averred that it was the late Mbaabu who subdivided the land with the consent of his family. He denied the particulars of fraud which the late Mbaabu had itemized. 4. The appellant further averred that vide a sale agreement dated 13/11/2008 between the late Mbaabu and himself, the late Mbaabu sold to him a portion of parcel number 2327, adding that the sale agreement was witnessed by the late Mbaabu’s wife and son. The appellant further stated that it was the late Mbaabu who approached him and offered to sell to him the portion of land because he needed to raise money for his wife [Caroline Nkuene] who required medical treatment and was admitted in hospital at the time. The appellant stated that, besides medical bills accrued by his wife, the late Mbaabu needed to legal fees for his son, Timothy Mputhia Mbaabu, who was facing criminal charges at the time. He denied any involvement in fraudulent dealings and averred that he was a bonafide purchaser for value. He urged the trial court to reject and dismiss the late Mbaabu’s claim. 5. The plaint was subsequently amended in 2014. The amendments were made pursuant to the trial court’s finding in a ruling dated 21/2/2013 [but delivered on 21/2/2014] to the effect that the late Mbaabu who was the plaintiff in the case was of unsound mind. The trial court allowed the coming on board of **Morris K. Gichuru Luka** as the late Mbaabu’s next friend. The second amendments to the plaint were effected on 6/8/2021 and were occasioned by the death of the late Mbaabu and the subsequent appointment of Morris K Gichuru Luka as the late Mbaabu’s personal representative vide a limited grant dated 12/5/2021. 6. During the lifetime of Mbaabu, the suit was transferred to Nkubu Senior Principal Magistrate Court and was registered as **Nkubu SPMC E & L Case No 21 of 2017**. Trial in the case took place at Nkubu Senior Principal Magistrate Court before Hon J M Irura, PM. 7. Upon conducting trial and receiving submissions, the trial court rendered the impugned Judgment in which it observed that the trial court had essentially been called upon to determine whether the late Mbaabu had the mental capacity to enter into a land sale agreement in 2008 and to transfer the suit land to the appellant in 2009. After analyzing the above issue, the trial court found that the late Mbaabu lacked the mental capacity to enter into the material sale agreement in 2008 and to transfer the suit land to the appellant in 2009. The trial court further found that the sale agreement; the subdivision; and the transfer of the suit land to the appellant were tainted with fraud in which the appellant was involved. Consequently, the trial court decreed that: (i) the transfer of land parcel number **Igoji/Kinoro/2573** to the appellant was fraudulent, unlawful and illegal; (ii) the said transfer was to be cancelled to revert the suit land to the late Mbaabu; (iii) the appellant was to bear costs of the estate of the late Mbabu. **Appeal** 1. Aggrieved by the judgment of the trial court, the appellant brought this appeal, advancing the following six grounds of appeal: 2. ***The Learned Trial Magistrate erred in law and fact in holding that the transfer of land parcel No. Igoki/Kinoro/2573 to the Appellant was fraudulent, unlawful and illegal.*** 3. ***The Learned Trial Magistrate erred in law and fact in holding that the respondent was mentally ill and had no capacity to execute the land sale agreement dated 13th November 2008 and the transfer forms on 30th March 2009.*** 4. ***The Learned Trial Magistrate erred by entering judgment for the respondent without sufficient evidence by the respondent and ordering the Land Registrar - Meru to immediately cancel the title deed in respect of land parcel No. Igoji/Kinoro/2573 and the rectification of the register to revert to the names of the respondent.*** 5. ***The Learned Trial Magistrate’s decision is against the weight of evidence before the court.*** 6. ***The Learned Trial Magistrate erred in law and fact in failing to consider and/or disregarding the appellant’s evidence and submissions.*** 7. ***The Learned Trial Magistrate’s judgement was biased in favour of the respondent against the appellant, is full of errors and a travesty of justice.*** 8. The appellant prayed for orders allowing the appeal and setting aside the judgment of the trial court dated 28/4/2022. He further prayed for costs of the appeal. **Appellant’s Submissions** 1. The appeal was canvassed through written submissions dated 4/11/2024, filed by ***M/s Kiautha Arithi & Co Advocates***. Counsel for the appellant identified the following as the three issues that fell for determination in the appeal: (i) Whether transfer of land parcel number Igoji/Kinoro/2573 was unlawful, illegal and fraudulent; (ii) Whether the respondent produced tangible evidence as to the mental incapacity of the deceased; and (iii) Who should bear costs of the appeal. 2. On whether transfer of parcel number 2573 was unlawful, illegal and fraudulent, counsel submitted that, having alleged that the appellant had fraudulently acquired title to the suit land, and having sought a cancellation of the appellant’s title, the respondent needed to present “watertight evidence” upon which the trial court would make a finding in the affirmative. Citing, the pronouncement of the trial court in ***Kuria Kiarie & 2 others v Sammy Mageria [2018] eKLR*** and in ***Kinyanjui Kamau v George Kamau [2015] eKLR***, counsel for the appellant submitted that, whereas the respondent pleaded fraud, no evidence was tendered to prove the allegations of fraud. Counsel urged this court to find that the transfer of parcel number 2573 was not unlawful, illegal and fraudulent. 3. On whether the respondent produced tangible evidence relating to the mental incapacity of the late Mbaabu, counsel cited **Section 107** of the **Evidence Act** and submitted that the respondent bore the burden of proving that the land sale transaction was between the appellant and a person of unsound mind. Counsel submitted that the respondent failed to tender evidence relating to the alleged mental incapacity of the late Mbaabu. Counsel pointed out that it was the evidence of PW2 and PW3 that the late Mbaabu only entered into a lease agreement with the appellant and that the contract between the appellant and the late Mbaabu would have been valid if it was a lease agreement. Counsel argued that the above evidence demonstrated that the two witnesses believed that the late Mbaabu was sane/lucid enough to make contractual decisions. Counsel further submitted that the respondent never tendered evidence relating to the nature of mental illness which the late Mbaabu suffered from, adding that the respondent elected to merely contend that the late Mbaabu was mentally ill. Counsel urged the court to find that the respondent failed to produce tangible evidence of the mental incapacity of the late Mbaabu. 4. On costs, counsel relied on the principle that, costs follow the event, and urged the court to allow the appeal and award costs of the appeal to the appellant. 5. Despite attending court on 7/10/2025 and being accorded adequate time to file submissions in this appeal, the respondent elected not to file submissions in the appeal. Consequently, there was no opposition to the appeal. **Analysis and Determination** 1. I have read and considered the original record of the trial court; the record filed in this appeal; the grounds of appeal; and the submissions tendered in the appeal. I have also considered the relevant legal frameworks and the jurisprudence relevant to the issues that fall for determination in the appeal. As observed earlier in this judgment, the respondent attended court on 7/10/2025 and was accorded an opportunity to file and serve submissions but he elected not to do so. Consequently, the appeal was not opposed. Nonetheless, the law required the appellant to establish the grounds that were itemized in the memorandum of appeal. 2. Looking at the six grounds that were itemized in the memorandum of appeal, and taking into account the submissions that were tendered, the key issues that fall for determination in the appeal are: (i) Whether the estate of the late Mbaabu pleaded and proved invalidity of the land sale contract and transfer of the suit land to the appellant on the basis of the late Mbaabu’s mental incapacity; (ii) Whether the estate of the late Mbaabu pleaded and proved fraud and illegality in the registration of the appellant as proprietor of the suit land; and (iii) What order should be made with regard to costs of this appeal. Before I analyse and dispose the above issues, I will outline the principle that guides this court when exercising appellate jurisdiction. 3. The principle upon which a first appellate court exercises jurisdiction was summarized by the Court of Appeal in the case of ***Susan Munyi v Keshar Shiani [2013] eKLR*** as follows: ***“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all the evidence and arrive at our own independent conclusions.”*** 1. The principle was similarly outlined in ***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 re-evaluate, re-assess ad re-analyse 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.”*** 1. Did the late Mbaabu plead mental incapacity to contract or transfer the suit land? Did his next friend prove mental incapacity to contract or transfer the suit land? Among other grounds, the trial court annulled the appellant’s registration as proprietor of the suit land because the late Mbaabu lacked the mental capacity to sell and transfer the suit land to the appellant. The pleadings which formed the basis of the trial that culminated in the impugned judgment is the amended plaint dated 6/8/2021. The suit was initiated by the late Mbaabu himself in 2009. His next friend came on board much later in 2014. Both the late Mbaabu and his next friend never pleaded that the late Mbaabu lacked the mental capacity to contract in relation to the suit land. They never sought a declaration that the late Mbaabu lacked the mental capacity to contract. Mention of the late Mbaabu’s mental status was only made in item (d) of the particulars of fraud in paragraph 7 of the amended plaint which reads as follows: ***“(d) Exploiting plaintiff’s mental incapacity to forge sale agreement of his land on false pretence that they were making lease agreement for lease of plaintiff’s tea bushes to him.”*** 1. To invalidate the registration on the ground that the transfer was illegal due to lack of mental capacity on the part of the late Mbaabu, the respondent was required to plead lack of mental capacity and set out the particular constituting the alleged lack of mental capacity. The respondent did not present those necessary pleadings. 2. Did the estate prove the late Mbaabu’s mental incapacity to contract? The prevailing law in Kenya on mental incapacity to contract is the common law. The common law applies by dint of **Section 2** of the **Law of Contract Act** and **Section 3** of the **Judicature Act**. *The Halsbury’s Laws of England 5th* Edition summarizes the law as follows: ***“At common law, the validity of a contract entered into by a person who was apparently of sound mind, but who in fact was suffering at the time of the contract from such mental disorder as rendered him incapable of entering into the contract, is to be judged by the same standards as a contract made by a person of sound mind. If the contract is to be avoided the person or persons denying its validity must prove that the person alleged to be mentally disordered at the time of the contract was so disordered as to be incapable of contracting and that the other party was aware or ought to have been aware of the fact. The contract is not avoided by unfairness unless such unfairness amounts to equitable fraud. A contract made by a person mentally disordered during a lucid interval is binding upon him, whether or not the other party knew of his intermittent incapacity.”*** 1. In ***Grace Wanjiru Munyinyi & another v Gedion Waweru Githunguri & 5 others; Nakuru Civil Appeal No 202 of 20025,*** the Court of Appeal reiterated the above position in the following words: ***“The starting point is the presumption that must always exist, until it is proved otherwise, that every person is of sound mind. It is a logical presumption, otherwise no one would be held responsible for their actions. It is also the position in law, and we find persuasive authority for it in the Wiltshire Case (supra), that the burden of proof lies on the person who asserts incapacity.”*** 1. The suit that provided the arena of the dispute about the late Mbaabu’s mental capacity to contract was filed by the late Mbaabu himself on 9/5/2009 without the assistance of a next friend. The late Mbaabu filed the suit as a person seized of proper mental capacity to initiate and maintain an action in his own name. The record shows that Morris K Luka Gichuru was admitted as the late Mbaabu’s next friend vide a ruling dated 21/3/2013 and delivered on 21/2/2014. It therefore follows that, as contemplated by the law, the late Mbaabu was to be presumed to have been a person seized of proper mental capacity to initiate and maintain the suit on 9/5/2009. Were a contrary view to be taken regarding the mental capacity of the late Mbaabu, the suit which he filed without the aid of a next friend would have been a non-starter for want of mental capacity. This is one critical aspect which appears to have escaped the attention of the trial court. There would have been no basis for trial if the case of the respondent were that the late Mbaabu lacked mental capacity all through. 2. Given the above background where the platform of the contest was a suit filed by the late Mbaabu without the aid of a next friend, the respondent’s burden of proof became heavier. The respondent was expected to tender evidence demonstrating that the late Mbaabu suffered from intermittent incapacity or enjoyed intermittent lucidity. Thirdly, it was the burden of the respondent to tender evidence proving that on 13/11/2008 [*the date of the sale agreement*], the late Mbaabu suffered intermittent mental incapacity. The respondent was also expected to tender evidence proving that on 20/3/2009 [*the date of the contested transfer*], the late Mbaabu suffered intermittent mental incapacity. 3. A perusal of the original record of the trial court reveals that once the respondent procured an order appointing him a next friend to the late Mbaabu, he did not bother to tender medical evidence during trial. This was a fatal omission. The late Mbaabu had initiated the suit as a person of full mental capacity on 9/5/2009. By failing to lead medical evidence during trial, the respondent omitted to tender critical trial evidence that was required to prove intermittent mental incapacity of the late Mbaabu at the time of contracting and at the time of the transfer. 4. Lastly on this issue, the respondent’s witnesses contended that at all material times the late Mbaabu only contracted to lease to the appellant tea bushes on the suit land, implying that the late Mbaabu had capacity to contract at the time of the impugned sale agreement. 5. The gravity of the foregoing omissions is that the respondent neither made the plea of mental incapacity nor tendered evidence to prove that at the specific time the late Mbaabu was alleged to have contracted to sell the suit land and to have transferred the suit land to the appellant, he suffered intermittent mental incapacity. That is the finding of this court on the first key issue. 6. Did the respondent plead and prove fraud and illegality in the registration of the appellant as proprietor of the suit land? A look at the amended plaint dated 6/8/2021 reveals that the respondent pleaded fraud and particularized the allegation of fraud. 7. With regard to the question whether he proved fraud and illegality, the law on proof of fraud is well settled. In ***Ndolo v Ndolo [2008] iKLR,*** the Court of Appeal outlined the law as follows; ***“...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove the allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher that 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.”*** 1. The amended plaint that formed the basis of the trial that culminated in the impugned judgement contained the following particulars of fraud: ***“(a) Causing transfer of land parcel No Igoji/Kinoro/2327 from M’Rimunya M’Ichunge to the plaintiff without M’Rimunya M’Ichunge and plaintiff’s knowledge and consent.*** ***(b) Using M’Rimunya M’Ichunge identity card and pin numbers plus photo which were earlier used in transfer of land parcel No Igoji/Kinoro/2326 to him to forge transfer documents.*** ***(c) Forging and uttering documents to effect transfer of land parcel No Igoji/Kinoro/2327 in plaintiff’s name.*** ***(d) Exploiting plaintiff’s mental incapacity to forge sale agreement of his land on false pretence that they were making lease agreement for lease of plaintiff’s tea bushes to him.*** ***(e) Causing plaintiff to thumb print documents to acknowledge that he had received money for sale of land whereas he did not receive any.*** ***(f) Forging and uttering documents to subdivide land parcel No Igoji/Kinoro/2327 and transfer of the resultant portions thereof without plaintiff’s knowledge and consent.*** ***(g) Transferring parcel No Igoji/Kinoro/2573 to himself thereof without knowledge and consent.*** 1. As the party making the above serious allegations of fraud, the respondent was obligated under **Sections 107, 108** and **109** of the **Evidence Act** to tender evidence to prove every particularized aspect of fraud. He did not do that. 2. At the centre of the dispute were the following critical documents: (i) sale agreement dated 13/11/2008; (ii) acknowledgements of receipt of purchase price dated 14/2/2009 and 28/4/2009; and transfer dated 20/3/2009. Inspite of the grave allegation of fraud which the respondent was making, he never bothered to subject the above documents to forensic examination to procure a forensic report supporting the allegation of fraud. No evidence was tendered to demonstrate fraud in relation to the above documents. 3. Secondly, the above documents were witnessed/attested by advocates. None of the advocates was summoned for examination to demonstrate the alleged forgeries. 4. Thirdly, the respondent alleged that the appellant first fraudulently transferred parcel number Igoji/Kinoro/2327 from M’Rimunya M’Ichunge to the late Mbaabu without the knowledge of the duo. There was, however, no evidence from M’Ichunge or from his estate to support the above serious allegation. If indeed the transfer of parcel number 2327 to the late Mbaabu was fraudulent, the estate of the late M’Ichunge could have initiated proceedings to challenge it. No such proceedings were initiated. 5. Having examined the evidence which was placed before the trial court, I do not think the respondent met the threshold of the standard of proof in relation to an allegation of fraud. Consequently, it is the finding of this court that the respondent did not prove fraud in the registration of the appellant as proprietor of the suit land. 6. On costs, the general principle in Section 27 of the Civil Procedure Act is that costs follow the event. Consequently, the respondent shall bear costs of the appeal. 7. In light of the above findings on the two key issues in this appeal, the appeal succeeds and is allowed as prayed. The respondent shall bear costs of the appeal. **DATED, SIGNED AND DELIVERED AT MERU THIS 28TH DAY OF MAY, 2026.** **B M EBOSO [MR]** **ELC JUDGE** **In the presence of:** Mr Gikunda Kiautha for the Appellant Mr Edwin Tupet – Court Assistant