Whether the Plaintiff has made out a case of fraud against the Defendants: -
38.Fraud is defined in the Black’s Law Dictionary Ninth Edition as follows: -
41.The standard of proof in fraud cases has been laid out by the Court of Appeal in the case of Kinyanjui Kamau v George Kamau  eKLR where it was held as follows;-
42.The burden of proof lies with the plaintiff to prove his claim and the standard is above that required in civil claims but not beyond reasonable doubt.
43.In this matter, the Plaintiff’s case is that she purchased from the 1st defendant one (1) acre out of LR No Kabare/Njuki/1114 for a consideration of Kshs 1,000, 000. Pursuant to their Sale Agreement, the 1st Defendant partitioned the subject land into two parcels being LR No Kabare/Njuki/2003 and Kabare/Njuki/2004.
44.The plaintiff stated that her portion of land was Kabare/Njuki/2004. I have looked at the Letter of Consent issued to the 1st Defendant dated February 27, 2013 allowing transfer of the said parcel of land to the plaintiff and have every reason to believe that indeed the Plaintiff is entitled to Kabare/Njuki/2004.
45.From viewpoint, trouble seems to have started brewing the moment the 1st Defendant failed to transfer land parcel registration number Kabare/Njuki/2004 to the plaintiff which led the plaintiff to file Gichugu Principal Magistrate Civil Case Number 2 of 2013 which was resolved by a way of consent settlement
46.I have looked at the said consent order dated January 31, 2013 and issued on February 1, 2013, and find that indeed, the matter was resolved by agreeing to transfer the suit land to the plaintiff herein and restrictions registered thereon be lifted.
47.The Plaintiff proceeded to register the said consent order on February 4, 2013. However, upon presenting the documents for registration, she discovered that the suit land has been transferred to the 2nd and 3rd Defendant herein by way of a gift and title issued on 19th February, 2013.
48.The plaintiff reported the matter to the DCIO Kirinyaga, which saw criminal proceedings being instituted against the Defendants herein in Gichugu Criminal Case Number 415 of 2013. Judgment in the said Criminal matter was delivered on December 28, 2018, where the 1st Defendant herein was acquitted and the 3rd Defendant convicted for the offence of conspiracy to defraud and of making a false document without authority.
49.The 3rd Defendant appealed against the said conviction and sentence vide Kerugoya High Court Criminal Appeal No. 3 of 2019 but the same was dismissed.
50.From the proceedings and Judgment in Gichugu Criminal Case Number 415 of 2013, it is evident that the 1st Defendant did not authorize the transfer of the suit land to the 2nd and the 3rd Defendants herein. He even testified that the only transaction he signed was the transfer of the suit land to the Plaintiff herein and was surprised to learn that the land had been transferred to his co-defendants herein. This must have been the reason he was acquitted.
51.Looking at the material presented before this Honourable Court, it appears as though the 1st Defendant took the required steps to ensure that the suit land was transferred to the Plaintiff but was overtaken by the fraudulent actions of the 2nd and 3rd accused as found in the Gichugu Criminal Case.
52.Looking more closely at Criminal proceedings and evidence adduced, one cannot fail to see that the Land Control Board Consent in favour of the 2nd and 3rd Defendant herein was acquired fraudulently as it neither appears in the agenda or even the minutes of the Land Board Meeting on the day it was issued.
53.Further, the 3rd Defendant has claimed to have purchased the suit land from the 1st defendant but the records show that same was transferred to her as a gift.
54.In a nutshell, I am of the view that all events surrounding the transfer of the suit land to the 2nd and 3rd Defendants herein are not only questionable but also unprocedural, illegal and corrupt scheme.
55.I am therefore convinced that the actions by the defendants were not only criminal in nature but the same were aimed at ensuring that the Plaintiff is deprived ownership of the suit land.
56.The 3rd Defendant has submitted that there is no cause of action against her as there are no particulars of fraud attributed to her.
57.I have looked at the amended plaint and find that allegations of fraud have not only been specifically pleaded but the same have also been particularized as required by the law. That explains why the 3rd Defendant responded to the same by way of Defence. If at all there was no such claim against her, one wonders what she was responding to in the amended plaint.
58.Even assuming that there was no cause of action against the 3rd Defendant as alleged, the 3rd defendant as the registered proprietor of the suit land is a necessary party in the suit whose presence is paramount in enabling this Honourable Court effectually and completely adjudicate upon and settle all questions involved in this case.
59.For all the reasons given, I find that the plaintiff’s claim on grounds of illegality, un-procedural irregularity and corrupt scheme has been proved to the required standard.
Whether the Plaintiff is entitled to Menses Profits
60.The Plaintiff stated that as a result of the defendants’ actions and/or inactions, she was deprived substantial source of income which occasioned her loss of profits.
61.She stated that after completing payment of the purchase price to the 1st Defendant, she was put into possession of the suit land and started to plant tea. However, in March 2013 rowdy youths went and chased away her tea pickers and the 2nd and 3rd defendants took possession and occupation of the suit land.
62.She submitted that according to the records from Kimunye dated 8/4/2019, 1000 Tea bushes produced 1.25 million shillings for years 2013-2019 and seek to be awarded a sum of Kshs. 1.5 million as mesne profits.
63.The 3rd Defendant on the other hand submitted that there was no supporting documents that had been produced in support of the allegation that the farm had over 1,000 tea bushes and that none of the agreements mentions any tea bushes on the farm.
64.In the case of Mistry Valji v Janendra Raichand & 2 others  eKLR the Court of Appeal stated:The privy council observed that that measure of damages must be reasonable rent. The usual practice is to assess mesne profits down to the date when possession is given.
65.It is trite law that he who alleges must prove. It is therefore incumbent upon the plaintiff to place evidence before this court to warrant an order for the claim of mesne profits. This position was held by the Court of Appeal in the case of Peter Mwangi Mbuthia & another v Samow Edin Osman  eKLR where it was held as follows:-
66.I have looked at the document by Kimunye Tea Factory Limited for the financial year 2012 – 2013 with respect to the plaintiff’s grower number and find the same has no evidentiary value as the maker ought to have been called to be cross-examined and to produce the same. I also find that the plaintiff is not entitled to mesne profits as the suit property had not been transferred and registered in her name. Mesne profit are damages payable to the owner of land by a trespasser for wrongful occupation. I find the claim by the plaintiff premature and unavailable.