IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: KARANJA, WARSAME & GATEMBU, JJ.A)

CIVIL APPEAL NO 132 OF 2005

BETWEEN

     KINYANJUI KAMAU…………………………..APPELLANT

 AND

   GEORGE KAMAU NJOROGE………………...RESPONDENT

(an appeal from the judgment of the High Court of Kenya at Nairobi (Visram, J.) made on 31^st March 2005

in

H.C.C. A No 44 of 2003)

**********

JUDGMENT OF THE COURT

This appeal arises out of the dismissal of the appellant’s claim in both the Senior Resident Magistrate’s Court at Kiambu and the High Court at Nairobi.

The appellant, Kinyanjui Kamau, by way of an amended plaint claimed that he and his brother Wilson Karanja Kariuki, who was the 1^st defendant therein, were the registered owners of Plot No Kiambaa/Kihara/T.327. According to the appellant, he and Wilson were proprietors of the property as tenants in common, with each holding his share in trust for the other. In or about June 1988 and in breach of the said trust, and further without the consent of the appellant, the said Wilson Karanja Kariuki sold and transferred his share in the property to George Kamau Njoroge, who is the respondent in this appeal. The appellant alleged that this was not only in breach of the said trust, but was wrong for he ought to have been given the first option to purchase his brother’s share of the property.

The appellant urged in the alternative, that the respondents fraudulently effected the sale and transfer of the suit premises. The particulars of that fraud were that Wilson and George failed to obtain the consent of the appellant before effecting the sale and transfer; that they failed to give the appellant the first option to transfer the property and that they carried out the transaction in secret by failing to inform the appellant of the transaction. The appellant therefore prayed for a declaration that the sale and transfer of the subject portion of the property was null and void; an order that the appellant was entitled to the first option to purchase the share of the property; an order for cancellation of the entry of the respondent’s name and rectification of the register.

The respondent opposed that suit. In his defence he denied that the said Wilson had held his share of the subject property in trust for the appellant and admitted that Wilson had indeed transferred his portion of the property to him. He further denied that there was any fraud in the transfer of the property and claimed that the appellant had no cause of action against him. He therefore prayed that the court dismiss the suit with costs.

To advance his claim, the appellant gave evidence on his own behalf. He testified that he and the deceased inherited the subject property from their brother. He later came to learn that the deceased wanted to sell the property to the respondent and he elected to register a caution on the property, but the registrar refused to register it. He stated that at no point did he sign nor consent to any transfer, and that he was not aware of the subsequent registration of the transfer.

The appellant’s second witness was George Gachuhi, the then District Land Registrar, Kiambu. He testified that a transfer of the property would have required consent of the Land Control Board, and that all the proprietors would have been required to authorise the sale for the transfer to be valid. He stated that there were no documents at the Lands registry relating to the subject property, and stated that since they were not there, it was likely that the entry of the respondent’s name was fraudulent.

On his part, the respondent testified that he was approached by the deceased Wilson and together, they agreed that he would purchase his portion of the property. He further testified that he was informed that there was a portion of money that had not been paid, and that he had to pay this money to the appellant. Together with the appellant and the deceased, they went to see the chief, George Kariuki (DW2). At the time, there was no Land Control Board and so Kariuki wrote a letter to the Land Registrar, and in the presence of the chief, the money (Kshs 1,700 for succession of the case and Kshs 2,500 for drilling) was paid to the appellant.

The appellant also put in submissions in which he stated that the purported transfer between the deceased and the respondent was fraudulent since section 103 of the Registered Land Act (now repealed) was not adhered to when the transfer of the property was registered. That section required that:

“(1) Where any land, lease or charge is owned in common, each proprietor shall be entitled to an undivided share in the whole, and on the death of a proprietor his share shall be administered as part of his estate.

(2) No proprietor in common shall deal with his undivided share in favour of any person other than another proprietor in common of the same land, except with the consent in writing of the remaining proprietor or proprietors of the land, but such consent shall not be unreasonably withheld.”

The appellant further submitted that the question of payment of money was never raised during his cross examination, but was only brought up during the defence case. In addition, the appellant submitted that the evidence of Kariuki the chief, only led credence to the fact that the appellant did not object to a subdivision of the property, but not to the sale of the property. In addition, the appellant submitted that there was fraud in the transaction, and that this fact was evinced by the fact that there was no documentation produced, even by the land registrar.

The trial court dismissed the appellant’s case. In a judgment dated 23^rd August 2002, the trial court found that the evidence showed that the deceased sold his portion of land to the respondent, and agreed to payment of the money even in the absence of the documents at the land registry. For these reasons the court found that the appellant had not discharged its burden to prove his case beyond a balance of probabilities, and therefore dismissed the suit.

The appellant was of course aggrieved, and filed an appeal to the High Court. In that appeal, the appellant faulted the trial court for holding that there was a valid sale and transfer of the suit property; for failing to appreciate that the letter written by the chief was not witnessed by the appellant nor the deceased; for failing to appreciate that the property could not be transferred without the consent of the appellant, and failing to find that the provisions of the Land Control Act were applicable to the transfer.

That appeal was dismissed by Visram J, as he was then, who concurred with the findings of the trial magistrate. The learned judge found that the appellant had not proved the existence of any trust between him and the deceased, and that the fact that the documents were missing from the lands office did not prove the existence of any fraud. In addition, the learned judge rejected the appellant’s submissions on the consent of the Land Control Board and found that since the appellant had not pleaded the point in his plaint, he could not raise it as an issue. For these reasons, the learned judge dismissed the appeal.

The appellant has now instituted this second appeal by way of a memorandum of appeal in which he set out grounds of appeal as follows: the purported transfer was null and void for failure to accord with section 103 of the Registered Land Act; that the absence of the transfer documents was contrary to section 85 and 108 of the Registered Land Act; that it was on the respondent to prove the existence of valid transfers; and that the court took into account irrelevant matters.

Miss Maina argued these grounds on behalf of the appellant. Learned counsel submitted that there was no consent in writing and hence the transfer was done in violation of the law and thus ought to be voided.

Miss Muigai, for the respondent opposed the appeal. Learned counsel contended that the appellant received money for the sale. She argued further that the appellant was trying to rescind a contract by relying on the provisions of the Land Control Act, which provisions were not applicable at the time. She urged us not to undo what the parties had consented to and dismiss the appeal.

This is a second appeal. Our duty on second appeal is as was succinctly articulated in Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR (Civil Appeal No. 127 of 2007) wherein Onyango Otieno, JA stated:

“In a second appeal, however, such as this one before us, we to resist the temptation of delving into matters of facts. This Court on a 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”

We have considered the entire record of appeal as well as the rival submissions of counsel. It is immediately apparent to us that the appellant never gave any evidence that would prove that the deceased was holding his share of the property in trust for the appellant. That means that the appellant’s suit was only based on the allegations of fraud against the respondent and his brother. It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v 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 the particulars of fraud, the appellant alleged that he did not consent to the transfer of the property. We find this was not true; as pointed out by the courts below, the appellant had full knowledge of and consented to the transaction. The evidence of the chief (DW2) was instructive in this regard, as was a letter to the Land Registrar, Kiambu. This letter in particular shows that the appellant was fully aware of the transaction between the respondent and his deceased brother.

The evidence that was adduced by the Land Registrar seemed to indicate that there may have been some mischief in the manner that the title in favour of the respondent was procured. In his evidence, the Land Registrar indicated that the file in respect of the subject property could not be found, and as such, any transfer that may have been undertaken may have been fraudulent. In cases where fraud is alleged, it is not enough to simply infer fraud from the facts. In Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR (Civil Appeal No. 106 of 2000) Tunoi 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 as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” (Emphasis ours)

In this case, fraud cannot be imputed on the part of the respondent by the mere fact that the record in relation to the subject property was missing at the Lands Registry. To succeed in the claim for fraud, the appellant needed to not only plead and particularise it, but also lay a basis by way of evidence, upon which the court would make a finding. In the present appeal, there is no such evidence, and the courts below rightly came to the conclusion that the appellant had not made out a case for the grant of the orders he sought.

In his grounds of appeal, the appellant raised an issue regarding the lack of consent of land control board, which was rejected by the first appellate court in the following terms:

“on the issue of the Land Control Board, … this point was not pleaded in the plaint and the plaintiff was not entitled to raise it at the trial. The fact that the appellant sought to have the sale and transfer of the suit land declared null and void did not absolve him from pleading the point that he sought that order on the basis that the requisite consent of the Land Control Board had not been obtained. It has been held time and time again that parties are bound by their pleading. A party cannot be allowed to litigate beyond the scope of his pleading.”

This was a true representation of the legal position. Parties are indeed bound by their own pleadings. See Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR (Civil Appeal No. 219 of 2013). Of course if an issue arises in the course of hearing, and the same is fully canvassed by the parties, then even if that issue was not pleaded, then the court will make a determination on the matter. As was held in Odd Jobs v Mubia [1970] EA 476, “a court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision.” In the present appeal, the issue of lack of consent of the Land Control Board was only mentioned in passing by George (DW2), and was not canvassed by the parties, and having not brought this issue for full interrogation before the trial court either by pleading it or by leading evidence on it, we agree that the appellant was then estopped from raising it in his grounds of appeal.