Abiero v Thabiti Finance Company Ltd & another
High Court, at Nairobi July 27, 2001
Civil Case No 1025 of 2000
Civil Practice and Procedure - pleadings - fraud - how fraud may be pleaded.
Land - registration of title - where it is not proved that new registered owner was fraudulent - whether register can be rectified - what remedy is available to the original owner.
The plaintiff charged the suit property, namely, LR No 209/6252 to the 1st defendant as security for financial facilities and banking accommodation granted by the 1st defendant to one Mathews Ouma Mwango, the principal debtor. Subsequently, the principal debtor fell into arrears with the loan repayments. The plaintiff paid off the principal sum but was unable to pay the accrued interest. After renogotiations and rescheduling agreements, the 1st defendant issued notification of its intention to sell the suit property by public auction. There was negotiation between the parties wherein it was agreed that the plaintiff should dispose of the suit property by private treaty to settle the loan accounts. It emerged subsequently that at the time of the negotiations, the 2nd defendant had transferred the suit property to one David Mburu Gichere, who was not a party to the suit. The plaintiff’s case was that the said transfer was fraudulent.
1. Fraud must be specifically pleaded and particulars of fraud alleged must be stated on the face of the pleading. Fraud, however, is a conclusion of law. If the facts alleged in the pleading are such as to create a fraud it is not necessary to allege the fraudulent intent.
2 Fraud is a generic term, embracing all multifarous means which human beings devise and which are resorted to by one individual to get advantage over another by false suggestions, or by suppression of truth, and include all surprise, trick, winning, dissembling and any unfair way by which another is cleared.
3 Section 23 (1) of the Registration of Titles Act gives an absolute and indefeasible title to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party.
4. Special damage is in the nature of past pecuniary losses or expenses while general damage is futuristic pecuniary loss or expenses.
5. Where a party has been wrongfully deprived of his land whose title has been conveyed to an innocent third party with full proprietary rights, the only recourse which the Court has is to deal with the matter in monetary terms by awarding damages.
Judgment for the plaintiff.
1. Mayers & another v Akira Ranch Limited  EA 169
2. BEA Timber Co v Gill (Inder Singh)  EA 463
3. Fazal Kassam (Mills) Ltd v Kassam and Gulamhusein  EA 1042
4. El Kiyumi v El Ruwehi  EA 553
5. Ng’ok Joseph N K Arap v Justice Moijo Ole Keiwua & others Civil Application No NAI 60 of 1997
6. Stroms Bruks Aktie Bolag v Hutchinson  AC 515
7. Sande v Kenya Co-operative Creameries Mombasa  LLR 314
8. Kimani v Attorney General  EA 502
9. Njoroge v Kenya Commercial Bank Ltd  LLR 2357
10. General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd 
1 WLR 819;  2 All ER 173
11. Friedman & Mason v Njoro Industries Ltd (1954) 21 EACA 172
1. McGregor, H (1988) McGregor on Damages London: Sweet & Maxwell
15th Edn pp 1119-1129
2. Black, HC Black’s Law Dictionary St Paul Minnesota: West Publishing Co
3. Simonds, V et al (Eds) (1956) Halsbury’s Laws of England London: Butterworths 3rd Edn Vol XV p space 263
4. Hailsham, Lord et al (Eds) (1975) Halsbury’s Laws of England London: Butterworths 4th Edn Vol XII p space416 para 1113
5. McGregor, H (2003) McGregor on Damages London: Sweet & Maxwell 17th Edn p 8
1. Evidence Act (cap 80) section 63
2. Registration of Titles Act (cap 281) section 23(1)