https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5320

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT CHUKA** **ELC LAND APPEAL NO. E019 OF 2024** **NELLY BETTY KARIMI KINEGENI ………….….......….APPELLANT** **=VERSUS=** **JOHN BOSCO NTWIGA KINEGENI ………........1ST RESPONDENT** **SUSIE MUKWANYAGA KINEGENI ………….......2ND RESPONDENT** **JUDGMENT** **Introduction** 1. This appeal challenges the Judgment of the Chief Magistrate Court at Chuka [Hon. J. Gandani C.M], rendered on **30/09/2024** in **Chuka CMC E & L Case No. 49A of 2021**. The key issue that arose for determination in the said suit was whether the registration of land parcel number Mwimbi/Chogoria/2181 in the name of **Nelly Betty Karimi Kinegeni** (*the appellant*) on 22/11/2019 was procured fraudulently. The trial court returned a finding in the affirmative. Invariably, this is one of the key issues that fall for determination in this first appeal. Before I analyse and dispose the issues, I will briefly outline the background to the appeal; the grounds of appeal; and the parties’ submissions in the appeal. All the land parcels featuring in this Judgment fall within the same registration section and block. They will be identified without the prefix relating to their common section and block, which is **Mwimbi/Chogoria.** **Background** 1. The two respondents are biological siblings. The appellant is their step-sister. The three parties to the appeal are scions of the late **Celestino Kinegeni M’Muthara** who died on **29/11/2019** (*hereinafter referred to as* ***“the deceased”).*** 2. The deceased owned land parcel number **Mwimbi/Chogoria/334** (*hereinafter referred to as* ***“parcel number 334”***). In 1997, he subdivided parcel number 334 into parcel numbers **Mwimbi/Chogoria/2180; 2181; 2182; 2183; and 2184**. He subsequently transferred parcel number 2180 to the 1st respondent. He retained parcel number 2181 (*the subject matter of this appeal*) in his name. Parcel numbers 2182 and 2183 are said to have been transferred to **Lawrence Nyaga.** He retained parcel number 2184 in his name but subsequently subdivided it into parcel numbers 6479 and 6480. Parcel number 6479 was given to the appellant while parcel number 6480 was given to **Simon Kibaki**. 3. Six days prior to the deceased’s demise, parcel number 2181 was transferred into the name of the appellant. The respondents subsequently took out a limited grant dated **4/8/2021** relating to the deceased’s estate and initiated **Chuka CMC E & L Case No.49A of 2021** against the appellant in which they sought a declaration that parcel number 2181 (**the suit land**) formed part of the estate of the deceased. In addition, they sought a permanent injunction restraining the appellant against entering, developing, selling, transferring, charging, or dealing with the suit land. 4. The case of the respondents was that, the appellant had fraudulently transferred the suit land from the deceased to herself on 22/11/2019 while the deceased was on his deathbed at PCEA Chogoria Mission Hospital. They itemized the following particulars of fraud: ***“a) Fabricating transfer documents for the transfer of Land Parcel No. Mwimbi/Chogoria/2181 from the deceased to the Defendant*** ***b) Faking the signature of the deceased on the transfer documents for the transfer of land parcel No. Mwimbi/Chogoria/2181 from the deceased to the defendant.*** ***c) Manipulating and /or forcing the deceased to give consent to transfer land parcel No. Mwimbi/Chogoria/2181 to the defendant when the deceased was seriously ill.*** ***d) Failing to consult and/or involve the plaintiffs and other siblings before transfer.*** ***e) Failing to obtain requisite consents to transfer.*** ***f) Colluding with officials at the Land Registry to transfer land parcel No. Mwimbi/Chogoria/2181 fraudulently.*** ***g) Illegally grabbing land parcel No. Mwimbi/Chogoria/2181 which forms part of the estate of the deceased.”*** 1. During trial, the two respondents testified as **PW2** and **PW3** respectively. PW2 testified that there was a possibility that the appellant either forged the conveyance documents or manipulated the deceased to give consent, adding that he believed the deceased was not aware of the transfer. He further stated that in their endeavour to verify whether the deceased had signed the transfer, their advocate wrote to the Land Registrar asking to be supplied with the relevant conveyance documents but the Land Registrar told the advocate to procure and avail a court order to enable him supply the documents. 2. On her part, PW2 testified that the appellant got the suit land unprocedurally, adding that their father was very sick in hospital at the material time. 3. The respondents also led evidence by **Dr. Frankline Ikunda** who served as a Chief Medical Officer at PCEA Chogoria Hospital. He testified as PW1. He produced a medical report dated 06/08/2021. During cross-examination, he stated that he did not personally attend to the deceased as his patient. 4. The appellant filed a statement of defence dated 16/11/2021 in which she averred that the suit land was transferred to her by the deceased, adding that by the time the deceased was admitted to PCEA Chogoria Hospital on 21/10/2019, he had already commenced the transfer process. She denied the allegation that she had fraudulently caused the suit land to be registered in her name. She faulted the respondents for withholding facts relating to parcels that the deceased had similarly caused to be registered in the names of his other children, including the 1st respondent. She urged the trial court to reject the claim. 5. Upon receiving submissions, the trial court rendered the impugned Judgment in which it held that, having taken into account the medical evidence; the suspicious timing of the transfer; and the fact that the appellant failed to provide credible documentations relating to the transfer, it was satisfied that the respondents had proved that the transfer of the suit land to the appellant was fraudulent, illegal and void. The trial court allowed the respondents’ claim and decreed cancellation of the registration. Lastly, the trial court decreed the appellant to bear costs of the suit. **Appeal** 1. Aggrieved by the findings and decree of the trial court, the appellant brought this appeal, advancing the following six (6) grounds of appeal (*number 4 was omitted in the itemization of the grounds*): 2. ***That the Learned Trial Magistrate erred in fact and law by finding that the respondents had proved their case on a balance of probabilities yet the respondents did not tender sufficient evidence to prove the same.*** 3. ***That the Learned Trial Magistrate erred in law and fact by finding that the appellant had acquired land parcel No. Mwimbi/Chogoria/2181 through fraud without any evidence tendered by the respondents to prove fraud.*** 4. ***That the Learned Trial Magistrate erred in law and in fact in determining that land parcel number Mwimbi/Chogoria/2181 forms part of the estate of the late Celestino Kinegeni M’Muthara without sufficient evidence to prove the same.*** 1. ***…………….(omitted)*** 2. ***That the Learned Trial Magistrate erred in law and fact by not considering that each party is bound by its pleadings and that particulars of fraud must be set out in the pleadings and be proved.*** 3. ***That the Learned Trial Magistrate erred in applying wrong principles and failing to take into account material facts arriving at an erroneous decision.*** 4. ***That the Learned Trial Magistrate erred in law and fact by disregarding the appellant’s pleadings and submissions and arriving at an erroneous decision.*** 5. The appellant prayed for an order setting aside/ reviewing/revising the Judgment of the trial court and substituting it with the judgment of this court. She also prayed for costs of the suit. **Additional Evidence in the Appeal** 1. Subsequent to the filing of this appeal, the appellant brought a notice of motion dated 3/5/2025 seeking leave of the court to adduce additional evidence at the appellate stage in form of: (i) Minutes of the Land Control Board Meeting that authorized transfer of the suit land to her; and (ii) Presentation Book of the Land Registry relating to the impugned transfer. Initially, the respondents opposed the application. The parties subsequently presented and recorded a consent, admitting the two documents as the appellant’s additional evidence at the appellate stage. Also admitted as additional evidence through the consent was the Letter dated 02/07/2025 from the Land Registrar. The consent was adopted by this court on 23/09/2025. **Appellant’s Submissions** 1. The appeal was canvassed through written submissions dated 27/11/2025, filed by ***M/s Muthoni Gitari Advocates LLP***. Counsel for the appellant identified the following as the issues that fell for determination in the appeal: (i) Whether the Learned Trial Magistrate erred in fact and law by finding that the respondent had proved their case on a balance of probabilities yet the respondents did not tender sufficient evidence to prove the same; (ii) Whether the Learned Trial Magistrate erred in law and fact by finding the appellant had acquired land parcel No. Mwimbi/Chogoria/2181 through fraud without any evidence tendered by the respondents; (iii) Whether the Learned Trial Magistrate erred in law and in fact in determining that land parcel number Mwimbi/Chogoria/2181 forms part of the estate of the late Celestino Kinegeni M’Muthara without sufficient evidence to prove the same; (iv) Whether the Learned Magistrate erred in law and fact by not considering that each party is bound by its pleadings and that particulars of fraud must be set out in the pleadings and be proved; (v) Whether the Learned Trial Magistrate erred in applying wrong principles and failing to take into account material facts arriving at an erroneous decision; and (vi) Whether the Learned Trial Magistrate erred in law and fact by disregarding the appellant’s pleadings and submissions and arriving at an erroneous decision. 2. On whether the respondents proved fraud, counsel cited **Sections** **24, 25** and **26** of the **Land Registration Act** and **Order 2 rule 10(1) (a)** of the **Civil Procedure Rules** and submitted that the respondents pleaded fraud but failed to particularize the alleged fraud. Citing the Court of Appeal pronouncement in ***Vijay Morjaria vs Narbingh Madhusingh Darbar & Hulaghiba Naursingh Darbar [2000] KECA 223(KLR)****,* counsel emphasized that fraud must be specifically pleaded and proved on parameters beyond a balance of probability but below the requirement of proof beyond reasonable doubt. Counsel further cited **Sections 107 –** **109** of the **Evidence Act** and submitted that he who alleges bears the burden of proof. Counsel faulted the trial court for failing to be guided by the above principles. 3. On whether the signature of the deceased was forged and the transfer documents fabricated? Counsel submitted that the respondent alleged that the appellant forged the signature of the deceased on the transfer document but he did not procure a documents examiner to ascertain the signature on the document, thus he failed to discharge the burden of proof. 4. On whether the deceased was forced to give consent while ill, counsel submitted that the medical report relied on was manufactured for the purpose of being used in the trial. Counsel added that according to the discharge summary, the deceased was suffering from extrapulmonary TB/Athritis/Cryptosporidium/DUT/Phenemonia/depression and not dementia. 5. On whether the appellants failed to obtain consent to transfer the suit land and colluded with the Land Registry to obtain the suit land fraudulently, counsel argued that the appellant was punished for failing to produce documents which were in the custody of the Land Registry at Chuka. Counsel contended that the court had a duty to summon the Land Registrar to produce the requisite documents instead of punishing the appellant. Counsel added that the new Land Registrar subsequently availed copies of the Minutes of Meru South/Maara District Land Control Board Meeting held on 29/09/2019 that demonstrated the deceased applied for consent to transfer the suit land to the appellant. 6. Counsel submitted that the presentation book demonstrated that the appellant paid Ksh 5,000 as the transfer fees and a title deed was issued to her. Counsel further submitted that the appellant’s root of title was proved as a gift *inter vivos* from her late father. **Respondents’ Submissions** 1. The respondents opposed the appeal through submissions dated 23/03/2026, filed by ***M/s Munyoki Maheli & Company Advocates***. Counsel for the respondents identified the following as the three issues that fell for determination in the appeal: (i) Whether the respondents proved fraud by the appellant in the acquisition of title for land parcel number **Mwimbi/Chogoria/2181** and; (ii) Whether there was sufficient evidence to prove that the suit land, **Mwimbi/Chogoria 2181** formed part of the estate of the deceased, **Celestino Kinegeni M’Muthara**. 2. On whether the respondents proved their case on a balance of probabilities, counsel submitted that the deceased held a meeting where he shared out his land with some of his children, including the respondents. Counsel further submitted that the appellant’s allegation that the deceased transferred the suit land to the appellant secretly raised suspicion. Counsel added that the deceased was seriously ill with dementia and was admitted in hospital most of the time when the land was allegedly transferred to the appellant. 3. Counsel argued that PW1 was a medical doctor who confirmed that the deceased was ill and he was admitted several times in 2018 and 2019 and died on 29/11/2019. Counsel contended that PW1 averred that the deceased hallucinated and had a strange behaviour and was inaudible. Counsel added that PW1 testified that the deceased had dementia and severe pneumonia, stage 4 HIV and tuberculosis. Counsel contended that from the doctor’s evidence, the deceased was incapable of transferring land to the appellant. 4. On whether the respondents proved fraud by the appellant in the acquisition of the suit land, counsel submitted that the appellant admitted in her evidence that the deceased was sick in 2019 until his demise. Counsel further submitted that PW3 testified that the deceased could not recognize his grandchildren and other close relatives when they visited him. Counsel added that it was strange that their father transferred the suit land in secrecy and without a family meeting, as he did with other transfers. Counsel contended that since everything was done in secrecy, it proved fraud, adding that PW2 wrote to the Land Control Board, but they did not recognize the transfer. 5. Counsel argued that the appellant produced her title but failed to prove how she acquired the title. Counsel relied on the pronouncement by the Court of Appeal on the burden of proof in the case of ***Munyu Maina vs Hiram Gathiha Maina, Civil Appeal No. 239 of 2009 (2013) eKLR***. 6. Noting that the appellant contended that she had proved the legitimacy of her title through the Minutes of Meru South Maara District Land Control Board Meeting held on 26/09/2019, counsel observed that the appellant failed to produce the actual consent; the old title deed; and the transfer form to prove the authenticity of her title. Counsel further submitted that the Land Registrar’s letter confirmed that the consent and the transfer form were missing in the Land Registry hence the Minutes could not prove that the transfer was initiated by Celestino Kinegeni. 7. On whether there was sufficient evidence to prove that the suit land formed part of the estate of **Celestino Kinegeni M’Muthara**, counsel submitted that there was sufficient proof that the suit land was part and parcel of the estate of **Celestino Kinegeni M’Muthara**. Counsel observed that PW2 produced a green card which proved that parcel number **Mwimbi/Chogoria/334** was subdivided into 2180, 2181, 2182, 2183 and 2184 and parcel number 2181 was registered in the name of the deceased. **Analysis and Determination** 1. The court has read and considered the original record of the trial court; the initial record of appeal; the parties’ consent admitting additional evidence at the appellate stage; the supplementary record of appeal; and the parties’ respective submissions. The court has also considered the legal frameworks and the jurisprudence relevant to the key issue in the appeal. The key issue in the appeal is whether the respondents proved that the registration of the appellant as proprietor of land parcel number Mwimbi/Chogoria/2181 was procured fraudulently. Before I analyse and dispose the issue, I will outline the principle that guides this court when exercising appellate jurisdiction. 2. This is a first appeal. The task of a first appellate court was summarized by the Court of Appeal in the case of ***Susan Munyi vs 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 of the evidence and arrive at our own independent conclusions.”*** 1. The principle was similarly outlined in ***Abok James Odera t/a J. Odera & Associates vs 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 and 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 respondents prove fraud in the registration of the appellant as proprietor of the suit land? The starting point is the relevant statutory framework on the burden of proof. **Sections 107,** **108** and **109** of the ***Evidence Act*** place the burden of proof on the party who alleges fraud. 2. Our courts have emphasized in a line of decisions that: (i) the burden of proof lies on the party who alleges; and (ii) the burden of proof also lies on the party who would fail if the relevant evidence is not tendered to prove a claim. 3. **In *Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] KECA 423 (KLR),* the Court of Appeal emphasized the above position as follows:** ***“We have considered the rival submissions on this point and state that Sections 107 and 109 of the***[***Evidence Act***](https://kenyalaw.org/akn/ke/act/1963/46)***place the evidential burden upon the appellant to prove that the signatures on these forms belong to the respondent. Section 107 of the Evidence Act provides that; “*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.”*Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side”.*** 1. The law on pleadings and proof of fraud is also well -settled. A party who anchors a claim on fraud must specifically plead the fraud and set out the particulars of the alleged fraud. Secondly, the party must specifically prove the pleaded and particularized elements of fraud. The Court of Appeal in ***Vijay Morjaria vs Narsingh Madhusingh Darbar & Hulasiba Narsingh Darbar (2000) KECA 223 (KLR)*** outlined the above principle in the following words: ***“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 pleadings. 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 distinctively alleged and as distinctively proved, and it is not allowable to leave fraud to be inferred form the facts.”*** 1. The claim which the trial court was seized of was wholly anchored on fraud. The respondents alleged that their step-sister (the appellant) fraudulently procured the registration of the suit land into her name on 22/11/2019. Did the respondents discharge their burden of proof? Did they satisfy the above criteria relating to pleadings and proof of fraud? I have looked at the Plaint which contained the respondent’s pleadings. Fraud was pleaded at paragraph 4. The particulars of fraud were also itemized in paragraph 4 and have been reproduced verbatim in this Judgment. Looking at the plaint, the court is satisfied that fraud was pleaded and sufficiently particularized. 2. Were the pleaded particulars of fraud proved? The respondents alleged that the conveyance documents which the appellant used to procure the impugned registration were fabricated and faked. They did not, however, tender any evidence proving forgery. During trial, they relied of the deceased’s admission in hospital as evidence proving fraud. They contended that at the time the deceased was alleged to have transferred the suit land, he lacked the requisite mental capacity because he was on his deathbed. First, the respondents did not plead the deceased’s alleged lack of mental capacity as a particularized element of fraud. 3. Secondly, the general law is that everyone is presumed to be of sound mind. Mental incapacity is a fact which calls for proof by the person alleging. Indeed, in ***Grace Wanjiru Munyinyi & another vs Gedion Waweru Githunguri & 5 Others, Civil Appeal No. 2020 of 2005***, the Court of Appeal emphasized the above principle 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 the incapacity.”*** 1. It was therefore the obligation of the respondents to lead evidence demonstrating that on the specific day when the deceased was alleged to have executed the transfer instrument, he suffered from mental incapacity. Secondly, it was the obligation of the respondents to lead evidence establishing that on the day the deceased was alleged to have procured the consent to transfer the suit land, he suffered mental incapacity. 2. In their evidence, the respondents made general statements such as, “*There is a possibility that the Defendant (the appellant) either forged the documents or manipulated our father to give consent. I believe our father was not aware of this issue”*. A statement such as this cannot be said to constitute proof of fraud. 3. In his testimony during cross-examination, **Dr. Ikunda (DW1)** was categorical that he did not attend to the deceased as a patient. He admitted that the deceased was not his patient. There was no documentary medical evidence suggesting that the deceased was attended to at PCEA Chogoria Hospital as a psychiatric patient or a dementia patient with mental impairment at the specific time the relevant conveyance documents were executed or procured. 4. Lastly, an evaluation of the totality of the evidence which the respondents placed before the trial court did not prove the pleaded elements of fraud. What the respondents did was to plead fraud and rely on suspicion as sufficient proof of fraud. That is not what the law required them to do. Having failed to join the Land Registrar as a party to the case, they similarly did not bother to call him as a witness to tender the relevant land registration records. As the parties alleging fraud, it was the duty to apply for witness summons and cause the Land Registrar to be summoned to avail the parcel file that contained the transfer documents. 5. Lastly, from the additional evidence tendered by in this appeal by consent, it does emerge that the relevant Land Control Board sanctioned the impugned transfer. It does also emerge that the transfer was presented for registration on 22/11/2019. 6. For the above reasons, the court is not satisfied that the respondents tendered sufficient evidence to constitute a proper impeachment of the appellant’s title under **Section 26** of the **Land Registration Act*.*** Consequently, the finding of the court on the key issue in this suit is that the respondent failed to prove that the registration of the appellant as proprietor of the suit land was procured fraudulently. 7. On costs, the general principle is that costs follow the event. Consequently, the respondents will bear costs of this appeal and costs of the suit in the trial court. **Disposal Orders** 1. In the end, having evaluated the pleadings and evidence that were placed before the trial court and the additional evidence that was adduced in this appeal by consent, this appeal is allowed in the following terms: 2. ***The Judgment dated 30/9/2024 and the decree in Chuka CMC E & L Case No 49A of 2021 are set aside wholly and are replaced with an order dismissing the said suit.*** 3. ***The Plaintiffs in Chuka CMC E & L Case No. 49A of 2021 shall bear costs of the said suit.*** 4. ***The respondents in this appeal shall bear costs of the appeal.*** **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF AUGUST, 2026.** **B. M. EBOSO [MR]** **ELC 1JUDGE** **In the presence of**: Mrs Maheli for the Respondent Mr Muthomi for the Appellant Mr E. Tupet – Court Assistant