Joseph Kipkoech Chemor v Kimaiyo Chemor & Barnaba Chumo Chemor [2019] KECA 525 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM:  WAKI, OKWENGU & J. MOHAMMED, JJ.A)

CIVIL APPEAL NO. 111 OF 2015

BETWEEN

JOSEPH KIPKOECH CHEMOR................. APPELLANT

AND

KIMAIYO CHEMOR............................ 1ST RESPONDENT

BARNABA CHUMO CHEMOR.......... 2ND RESPONDENT

(An appeal from a Judgment, Decree and Order of the Environment and Land  Court of Kenya at Eldoret (Munyao Sila, J.) dated 25th September, 2014

in

ELC Case No. 499 of 2012)

******************

JUDGMENT OF THE COURT

On 25th September, 2014, the Environment and Land Court (Munyao Sila, J.) sitting in Eldoret, declared that the land title for LR. No. Moiben/Moiben Block 9 (Barsombe) 319 (the disputed land),measuring approximately 4. 91 Hectares (about 12. 3 Acres), belonged to the estate of the late Chemor Chesigari Koibelel (deceased), and not to the registered proprietor, Joseph Kipkoech Chemor, who is the appellant before us.  The court went further and issued an injunction barring the appellant from dealing with the disputed land, and an order for the appellant to discharge a loan encumbrance held by the Agricultural Finance Corporation (AFC).

In making the declaration and orders, the learned Judge found that the appellant had obtained the Title Deed through fraud and therefore the provisions of section 143 of the Registered Land Act (RLA)(now repealed) and section 26 of the Land Registration Act (LRA), No. 3 of 2012, were applicable.  Before us, the appellant challenges all those findings, especially the finding on fraud.

What is the background to the dispute?

The deceased, who died on 7th July, 1990, aged 80 years, was a polygamous man with five wives (all deceased) and twenty three children.  Among the children was the appellant, who belonged to the 3rd house, and the two respondents who belonged to the 1st and the 2nd houses respectively.  The deceased left several pieces of land spread over the counties of Marakwet, Keiyo and Uasin Gishu.  However, the disputed land was in Barsombe area of Moiben, in Uasin Gishu, far from the rest of the lands.  Upon the deceased's death, the two respondents applied for and were issued with a grant of Letters of Administration for his estate on 14th July, 2010.  They listed the properties left behind by the deceased but did not include the disputed land which was registered in the appellant's name.

Before the issuance of the grant of representation, the respondents had gone before the High Court in Eldoret on 19th March, 2010 and filed suit on behalf of the deceased's estate, against the appellant.  They asserted that they had assisted the deceased to buy the disputed land by contributing Sh.1,000 each out of the totalpurchase price of Sh.4,900.  However, through fraudulent and secret manoeuvres, the appellant had the disputed land registered in his name and subsequently charged it to AFC for a loan of Sh.110,000.  They averred that the land belonged to the estate of the deceased, and prayed for a declaration to that effect, and an injunction to stop the appellant from trespassing, leasing or transferring it.

The appellant denied those allegations in his defence, asserting that he lawfully became the first registered absolute proprietor of the disputed land on 9th November, 1998.  Before then, he had been working as a teacher since 1972, and was a member of Barsombe Nyakiambi Farmers Company Ltd (the land-buying company) which was purchasing land from a European settler.  Through the deceased, he acquired membership of the land buying company and eventually after survey and subdivision of the land, he was issued with the Title Deed for the disputed land which rightfully belonged to him.  Indeed, he observed, the 1st respondent also had his own membership in the land-buying company and ended up with an adjoining parcel of land No. 320, in his own name.  The appellant took possession of the disputed land and leased it out to the 1st respondent for planting maize and grazing animals.  He also leased it, with the respondents' knowledge, to third parties until 2009 when he decided to take up farming on his own, and he charged it to AFC for a loan of Sh.110,000 to buy farm inputs.  He denied the particulars of fraud stated in the plaint.

Both respondents testified orally before the trial court and called the Secretary of the land buying company to produce the membership register of the company.  The copy of the register produced did not contain the name of the appellant.  The appellant also testified and called a witness who had leased the disputed land from him for several years without any objection from the respondents.  He called a fellow teacher and member of the land buying company whom he had sent to the company with money for payment of an outstanding AFC loan owed by the company.  Lastly, he called a member of the survey committee of the land buying company who confirmed payment for the disputed land by the appellant, who became the lawful owner.  There was no dispute over it, according to that witness.

Upon evaluation of the evidence, and considering the submissions of counsel for the parties, the trial court rejected the respondents' claim to the disputed land on the basis of a constructive trust as there was no pleading to that effect.  It also rejected, as unsupported, the evidence of the respondents that they had contributed Sh.1,000 each towards purchase of the land.  It found that the only issue was whether the disputed land belonged to the deceased's estate and whether the appellant fraudulently caused himself to be registered as the proprietor.

The court further found that the appellant was not shown in the register of members of the land buying company; that the appellant produced no evidence of purchase of shares in the land buying company or to show how he became entitled toregistration as the proprietor of the disputed land; that the evidence that the appellant leased out the land to third parties without objection did not confirm that he obtained the Title above board; that the appellant secretly and unlawfully transferred the disputed land to himself; that the appellant was not the first registered owner since the transfer to him was from the Government of Kenya which was the first registered owner; that therefore there was no protection of the Title by dint ofsection 143of the RLA; thatsection 26of the LRA applied to annul a Title where it was obtained by fraud or misrepresentation or acquired illegally, unprocedurally or through a corrupt scheme; and that the Title of the appellant was so obtained thus warranting cancellation.  The declaration and orders earlier stated were then made.

The appellant now comes before us to challenge those findings through 19 grounds set down in his memorandum of appeal.  They are rather repetitive and unduly prolix.  At the hearing of the appeal through written submissions which were orally highlighted, learned counsel for the appellant, Mr. J. C. K. Cheptarus, combined and reduced them into four clusters, thus:- grounds 1 and 4 on errors of law; grounds 2, 12 and 13 on evidence of fraud; grounds 6, 7, 8, 9, 10, 11, 16, 17, 18 and 19 on re-evaluation of evidence; and grounds 3, 4, 5 and 15 on fair hearing.

The written submissions are not a paragon of clarity and have no focus on the issues identified.  There are no authorities filed in support of the submissions either.  Be that as it may, counsel was emphatic that the evidence on record was evaluated ina skewed manner thus leading to the wrong conclusions.  He faulted the trial court for its reliance on a copy of a register, produced byPW3, Philip Kiplagat Kogo (Kogo), whose authenticity was questionable.  In his view, the other registers admitted by the said witness to have existed, which contained the names of the members and the plot allocations for paid up members, but were not produced in evidence, destroyed the evidence of Kogo.  Furthermore, submitted counsel, there was no evidence that the disputed land was ever registered in the deceased's name before it was transferred to the appellant.  On the evidence, the transfer in favour of the appellant was made by the land buying company and was endorsed by the Land Registrar who issued the Title Deed but neither the land buying company nor the Land Registrar was made a party to the proceedings.  In counsel's view, the suit was not about the estate of the deceased but a claim by the two respondents who allegedly contributed Sh.1,000 each to the land buying company but received no allocation of land.  No other family member was interested in the claim, and in any event, the respondents' claim of contribution towards the disputed land was dismissed by the trial court and there is no cross appeal.

Turning to proof of fraud, counsel submitted that there was no proof as required by law.  On the contrary, he observed, the appellant had proved that he made payments to the land buying company before the disputed land was registered in his name and thereafter, he peacefully enjoyed possession of the property for many years, including taking a mortgage on it from AFC, before the two respondents erroneously filed the claim. The ELC had no jurisdiction to entertain a suit relating to mortgaged property or make orders on repayment of the loan owed by the appellant to AFC.  In counsel's submission, the appellant was fully protected under the RLA and the trial court erred in invoking the Land Registration Act to impeach the appellant's Title.

In response, learned counsel for the respondents, Mr. S. K. Kandie, informed us that the 1st respondent, Kimaiyo Chemor, died on 20th May, 2014, before the appeal was filed.  There was no substitution for his estate and therefore the appeal against him was marked as abated under Rule 99 (2) of the Rules of this Court.  In written submissions, which had no authorities to back them, counsel submitted that there was only one issue of law, and that is whether the trial court properly addressed itself to the evidence on record before making its conclusion that the disputed land belonged to the estate of the deceased, and that the appellant obtained the registration fraudulently.

In counsel's view, the evidence of the respondents was coherent, corroborated, believable and unchallenged.  They produced evidence to show that the disputed land was registered in the appellant's name; that they had contributed Sh.1,000 each towards the purchase price; that the deceased's name was in the register of members; and that the name of the appellant was not in the register.  Counsel further submitted that the appellant offered no proof on how he became a member of the land buying company and how he ended up with land if he was not a member.  The appellant failed to prove his ownership of the disputed land and therefore the trial court was right to disregard the appellant's evidence, he asserted.

As for fraud, counsel submitted that the applicable law, which the trial court applied was section 26 of the LRA, which permits the annulment of Title where it was obtained by "fraud or misrepresentation" or "acquired illegally, unprocedurally or through a corrupt scheme".  The trial court, in counsel's view, was entitled to find that there was no explanation on how the appellant obtained registration and, hence, the inevitable conclusion that it was through fraud or other malfeasance running afoul of section 26 aforesaid.

We have considered the appeal, as we must as the first appellate court, by way of a retrial in order to come to our own conclusions in the matter.  See Rule 29 (1) (a) of the Court of Appeal Rules.  As always, we must accord due respect to, and not lightly differ from, the findings of fact by the trial court which had the added advantage of seeing and hearing the witnesses.  Nevertheless, this Court has stated time and again that it will interfere with such findings if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching them.  See Jabane vs Olenja [1986] KLR 661. Indeed, an appellate court is not bound to accept the factual findings of a trial court if it appears either that it has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.  See Mwangi vs Wambugu [1984] KLR 453.

In our view, the most important issue of law that is dispositive of the appeal is whether fraud was proved against the appellant.  It is in the process of considering that issue that we shall examine whether the trial court properly evaluated the evidence laid before it.

Before we delve into the issue, we must determine which law is applicable to the matter before us --- is it the RLA or the LRA?  The RLA was repealed on 2nd May, 2012 when the LRA was enacted and commenced operation.  The suit which gave rise to the appeal was filed on 19th March, 2009.  It is also common ground, and indeed a finding was so made by the trial court, that the disputed property was registered under the RLA in the appellant's favour on 19th November, 1998.  With those antecedents, one would have expected the applicable law to be the RLA only, but the trial court appeared to confound the issue by applying both statutes.

It stated as follows:-

"The suit land is registered under the Registered Land Act (Cap 300)(repealed) and which statute was the prevailing law when this suit was filed.  It was stated that the defendant's registration is a first registration, but the title shows otherwise for he is the 2nd registered owner.  He is therefore not protected by section 143 of the Registered Land Act.................It will be seen from the above that the Registered Land Act allowed for the cancellation of the registration of a proprietor if such registration was obtained by fraud or mistake.  The current law is set out in the Land Registration Act, Act No. 3 of 2012, which provides as follows at section 26. .........It will again be seen from the above that the title of a proprietor may be cancelled if it was obtained by fraud or misrepresentation to which the person is proved to be a party, or where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme."

With respect, the LRA had no retrospectivity and therefore ought not to have been applied despite being the current law at the time of judgment.  Both the Land Act (No. 6 of 2012) and the LRA which came into effect on the same day, and had a repealing effect on several Acts relating to land, including the RLA, had inbuilt provisions on pre-existing interests and disputes.  Section 162 (1)of theLand Actprovides:-

“(1) Unless the contrary is specifically provided in this Act, any right, interest, title, power or obligation acquired, accrued, established, coming into force or exercisable before the commencement of this Act shall continue to be governed by the law applicable to it immediately prior to the commencement of this act”.

AndSection 106 (3) (a)of theLRAprovides:-

“(3) For the avoidance of doubt-

"Any rights, liabilities and remedies shall be exercisable and enforceable in accordance with the law that was applicable to the parcel immediately before the registration of the land under this Act;”

The foregoing provisions are in consonance with section 23 (3) of the Interpretation and General Provisions Actwhich safeguards all rights, obligations, liabilities and privileges where legislation is repealed.  It states thus:-

“Where any written Law repeals in whole or in part another written Law, then, unless a contrary intention appears, the repeal shall not............;

a) revive anything not in force or existing at the time at which the repeal takes effect; or

b) affect the previous operation of a written law so repealed or anything duly done or suffered under a written law so repealed; or

c) affect a right, privilege, obligation or liability acquired, accrued or incurred under a written law so repealed; or

d) affect a penalty for forfeiture or punishment incurred in respect of an offence committed against a written law so repealed.”

In view of those provisions of the law, we find that the trial court was in error in considering the issue of fraud under the provisions of the LRA.  The RLA is therefore the relevant and applicable law.

Under section 27 of the RLA, the registration of a person as a proprietor of land, vested in him the absolute ownership of the land together with all rights and privileges belonging or appurtenant thereto, while section 28 insulated the rights of a proprietor from challenge except in the manner set out in the Act.  They provided as follows:

Section 27 (a):

“The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto”

Section 28:

“The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together will all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject-

(a) to  the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and

(b) unless the  contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by Section 30 not to require noting on the  register;

Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.”

There was no pleading in this matter on any of the overriding interests stated in section 30above.Nor was there a pleading that the appellant held the title as a trustee of any nature.  Indeed, the trial court dismissed, correctly in our view, evidence led by the respondents that there was a constructive trust.  The trial court found that the relevant issue that was pleaded was fraud.  Under section 143of the RLA, the court had power to order rectification, save in the case of a first registration, where the registration was obtained by fraud or mistake to which the registered person was party.  The trial court found that the appellant was the 2nd registered owner after the Government of Kenya and we have no quarrel with that finding.  It does not detract from the principles applicable in proving fraud even where the registration is not the first one.  We now proceed to examine those principles in order to answer the main issue in this appeal.

Firstly, the law requires that fraud be pleaded with particularity.  See Order 2 Rule 10of theCivil Procedure Rules, 2010 (CPR) (formerlyOrder VI rule 8).Secondly, the onus of proving those particulars lies with the party pleading, in this case the respondents.  As was stated in the case ofWanyororo Farmers Co. Ltd vs Nakuru Kiamunyeki Co. Ltd (2017) eKLR:'Whether there was fraud is, however, a matter of evidence'.Section 107 (1) of the Evidence Actis indeed clear on the burden of proof.  It provides thus:

"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".

Thirdly, on the standard of proof, it has been held time and again that imputations of fraud against a party are serious allegations which when pleaded must be proved to a standard above a balance of probabilities but not beyond reasonable doubt.  It was so stated by this Court in Vivo Energy Kenya Limited vs Maloba Petrol Station Limited & 3 Others [2015] eKLR,thus: -

“Where fraud is alleged, it must be specially pleaded and particulars thereof given.……Even where a plaintiff has properly pleaded fraud, he or she is required in addition to prove it beyond a mere balance of probabilities.  In R. G. Patel vs Lalji Makanji [1957] EA 314, at page 317 the former Court of Appeal for Eastern Africa stated 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'.

So too in Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000]eKLR,whereTunoi, JA.(as he then was)stated as follows:

“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 distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”  [Emphasis added].

And finally,Kinyanjui Kamau vs George Kamau[2015] eKLR,where this Court  expressed itself as follows;-

“…It is trite law that any allegations of fraud must be pleaded and strictly proved.  See Ndolo vs Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: “...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that 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 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...”...In cases where fraud is alleged, it is not enough to simply infer fraud from the facts."  [Emphasis added].

So, there it is.  General allegations, however strong may be the words in which they are stated, are insufficient to surmount an averment of fraud of which any court ought to take notice.  Did the respondents discharge their burden of proof in line with the principles?

As stated earlier, the basis of the respondents' case was fraud which they pleaded and particularized as follows:

"5. The 1st and 2nd plaintiffs avers that the defendant has since grabbed the said parcel of land and unlawfully malicious, and fraudulently obtained the title deed over the same.

PARTICULARS OF FRAUD AGAINST THE DEFENDANT

a) Intermeddling with the deceased's estate.

b) Failing to inform the plaintiffs and other beneficiaries of   the deceased's estate about the illegal transfer of title.

c) Secretly and unlawfully transferring parcel of land No.    Moiben/Moiben Block 9 (Barsombe)/319.

d) Secretly charging parcel of land No. Moiben/Moiben    Block 9 (Barsombe)/319 to AFC for Kshs.110,000/=".

The particulars alleged intermeddling, illegality, secret unlawful transfer, and secret mortgaging of the disputed land.  Those are the allegations calling for high standard of proof.  According to Black's Law Dictionary, 10th Edition, an'intermeddler' or 'officious intermeddler' is "a person who confers a benefit to another without being requested or having a legal duty to do so, and who therefore has no legal grounds to demand restitution for the benefit conferred...a volunteer'.  An 'illegality' is 'an act that is forbidden by law', while 'secrecy' is the 'state of being concealed from those who would be affected by the concealment.'  More specifically, 'Intermeddling' with the property of a deceased, according to section 45of The Law of Succession Act,entails 'taking possession, disposing or otherwise intermeddling with any free property.'  According to section 3 of the Law of Succession Act “free property'means “the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death”.

The respondents called three witnesses to prove the particulars of fraud.  Apart from proving that they had obtained a grant of letters of administration after the filing of the suit, and producing a Title Deed of the disputed property to prove that it was registered in the appellant's name, the rest of the respondents' evidence was centered on their own claim that they paid money to the land buying company and were therefore entitled to a portion of the disputed land.  Listen to the 1st respondent:

"Joseph is not supposed to be the sole registered owner of the land on my part I gave out Kshs.1,000/= for the purchase of the land.  Barnaba my brother also contributed Kshs.1,000/=.  The total purchase price was kshs.4,900/=.  there is a book in which this was recorded.  I know the book.  This is an extract of it.

I paid Kshs.1,000/= for the land.  I want my share which is 21/2 acres.  Barnaba is also entitled to 21/2 acres.  The whole land is 13 acres".

And the 2nd respondent:

"We want 5 acres of the land to be given to us 21/2 acres to me and 21/2 acres to the co-plaintiff (Kimaiyo).  We also want 8 acres to be given to the mother of the defendant.  The 21/2 acres that I claim reflects my contribution for the purchase of the land".

Their evidence on contributions was dismissed by the trial court and for good reason.  None of the two identified the disputed land as having been allocated to the deceased or being the deceased's 'free property'.  It could only have been the "free property' of the deceased if it was so registered.  Needless to say, the appellant could only be accused of intermeddling if he was dealing with the free property of the deceased.  On admitted facts, however, the disputed land was not even listed among other lands and properties forming the estate of the deceased.

The star witness whose evidence was wholly relied on by the trial court was PW3, Kogo.  He was supposed to produce the members' register which would prove that the disputed land was allocated to the deceased and was illegally and secretly transferred to the appellant.  But he admitted that he had left behind the relevant registers which could have so proved.  We may listen to him:

"I do not know the parcel No. that relates to this case.  I know the parcel Moiben/Moiben Barsombe/319.  The land is currently owned by Joseph.  It previously belonged to his father.  I know because the name of Chemor Chesigari is in the register.  I have the Register.  I can see this page (PMFI-1) is a copy from the Register.  I wish to produce this register as an exhibit".

And that is all he said in his evidence in chief.  It was in cross-examination that he made the following startling admission:

"There are other registers apart from this one.  I have the registers.

I got my title deed about 10 years ago.  My land is parcel No. 162.  This register does not show the parcel number.  There is another register which shows a member's name and the land parcel allocated.  That is the register that was used to issue title deeds.

This register (exhibit 4) shows the payments made by a member.  Before people got title, the company paid survey fees, debt to AFC and government taxes.  There was an AFC loan which was paid.  AFC then surrendered the parent title.  The committee then to(sic)confirm the contributions of members and their entitlement on the ground.  It is then that the register which is not here was made to show the member and the land that the member was entitled to.  I did not come with that register".[Emphasis added].

Quite clearly, there was evidence which the witness was either unwilling or unable to produce which, in all probability would have been favourable to the appellant.  The appellant had asserted that he had made payments to the land buying company which had allocated the disputed land to him.  He produced receipts and documents to show that he had done so.  In cross examination, the witness Kogo virtually admitted that he was aware of such receipts and payments.  We may quote him again:

"This register (exhibit No. 4) is only indicative of payments.  I can see these receipts (some receipts put to the witness).  These receipts are from our company.  They are dated 6/7/1996, 18/5/96.  The receipt of 6/7/96 is issued to Joseph C. Chesigari.  It is of Kshs.500/=.  The payment is for "seasonal credit loan."  The second receipt is of Kshs.1,313/=.  It is payment of county council, ministry of Lands and AFC.  I am the one who signed these receipts.  (A note put to the witness) - I can see this note.  It is addressed to "Jomba."  The litigant's mother and my mother are sisters.  In this note I was talking about filling of transfer forms.  The "Chumo" in the note is Barnaba.  Busienei is also of their family.  The transfer forms were being executed in the land's office.

(A Green card put to witness)- I can see this Green card.  The register was open on 8/7/1998.  It is for Moiben/Moiben Block 9 (Barsumbe)/319.  The area is 4. 91 Hectares.  The first entry is Government of Kenya.  The 2nd entry is Joseph Kipkoech Chemor".[Emphasis added].

So, how was the evidence of Kogo totally relied on when it fell far short of proving fraud on a balance of probability, let alone the higher standard required in law?  And how was it that the evidence of the appellant in rebuttal was totally dismissed by the trial court?

In its evaluation of Kogo's evidence, the trial court rendered itself as follows:

"The key witness of the plaintiffs was PW-3, the Secretary of the Barsombe Nyakiambi Farmers Society.  I have carefully considered his evidence and I have carefully perused the register which he produced as an exhibit.  He testified that the deceased was a member of the Society and that he contributed money towards his membership.  I take it that being a member, and making contributions, entitled one to some acreage of land.  The register shows that the deceased was a member of the Society and that he contributed a sum of Kshs.4. 968/=, although the broken down figures show Kshs.2,268/= and Kshs.2,000/= which is Kshs.4,268/=.  But I do not think the discrepancy in these figures is material.  What is important in his evidence is that the late Koibelel was a member of the Society and that he made some contribution.  The name of the deceased is entered in page 93 of the register.  So too the name of the 1st plaintiff which is in page 47 of the register.  He also bought shares from another member, which is in page 95 of the register.

The register produced does not have the name of the defendant as a member.  Neither did it come out clearly in the defendant's evidence how he came to be a member of the Society.  Although he stated that the paid for the land in the year 1976, he did not produce any receipt that dates back that long.  What he produced were receipts issued in 1996 by the Society.

PW-3 was categorical in his evidence that the suit land which is currently owned by the defendant previously belonged to his father.  It would have added more weight to his evidence if PW-3 had buttressed his evidence by bringing in the other registers which show the parcel number allocated to each member, but I am of the view that his evidence prima facie shows that the defendant was never entitled to own the suit land, as he was never a member of the Society, and that the land that he eventually became registered as owner, properly belonged to his father.  I think given this evidence, the defendant needed to demonstrate that he got title to the suit land lawfully".[Emphasis added].

With respect, those findings are based on shaky ground.   In the first place, there was no evidential support for the finding that being a member and making contributions entitled one to some acreage of land.  It was mere supposition or conjecture.   The registers that would have proved that fact were not produced in evidence.    Secondly, the fact that the name of the appellant did not appear in the copy of the register produced in evidence was not proof that he was not allotted the disputed land by the land buying company as he claimed. Neither the land buying company which made the allotment, nor the Land Registrar who registered thetransfer to the appellant were made parties or summoned to prove any fraud in registration of the disputed land in the appellant's name.

We think the biggest error of law made by the trial court was to shift the burden of proving fraud from the respondents to the appellant who had no burden to disprove the allegation, although he attempted to do so and called witnesses to support his assertions.  But his evidence was given short shrift.  This is how:

"I have looked at the evidence of the defendant but there is in fact little or no evidence of how he became entitled to the suit land.  He of course stated that he was a member of the Society, but as I stated earlier, his name is not in the register of members.  I also mentioned earlier that he stated that he paid for the land in the year 1976, but no evidence of this was ever tabled.  He testified that he got the land from the Society, but on what basis would the Society give him land if he was not a member?  He surely did not buy the land from the Society or from any other member, for if he did, then he would have produced some sort of agreement or evidence of purchase.  He did table some note which advised him to go and sign some transfer forms, but this alone does not make him entitled to the land.  The evidence tabled, that he leased the land does not assist the defendant in demonstrating that he obtained title above board".

On the whole, upon re-evaluation of the evidence on record, we are satisfied that the trial court erred in the manner it evaluated the evidence on record and in applying it to the relevant principles of law.  There was thus no factual or legal basis for making the findings that the appellant 'secretly and unlawfully transferred thedisputed land to himself'.We further find that the particulars of fraud were not proved to the standard required in law.

On those findings, we must hold that this appeal is meritorious.  We allow it with the result that the judgment and orders of the Environment and Land Court made on 25th September, 2014 are hereby set aside.  We substitute therefor an order dismissing the suit filed by the respondents.  The costs of the appeal as well as the costs of the lower court shall be borne by the 2nd respondent, Barnaba Chumo Chemor, and not the estate of the deceased.

Orders accordingly.

Dated and delivered at Eldoret this 28th day of June, 2019.

P. N. WAKI

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JUDGE OF APPEAL

H. M. OKWENGU

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JUDGE OF APPEAL

J. MOHAMMED

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JUDGE OF APPEAL

I certify that this is a truecopy of the original.

DEPUTY REGISTRAR