Whether the registration of the defendant as the owner of the parcel of land known as Nakuru Municipality Block 16/188 was fraudulent & ought to be cancelled.
15As a preliminary, on April 20, 2023, the Court directed that the plaintiff to file and serve submission within 14 days of service. The defendant to do likewise within 14 days of service. The Court notes that the Plaintiff has not filed any submissions whereas the Defendant has filed submissions dated June 12, 2023 and received on June 13, 2023. Despite the foregoing, this Court will nonetheless interrogate the issues raised in the Plaint dated February 10, 2010 and make a determination.
16The crux of the Plaintiff’s claim is on fraud on the part of the Defendant wherein it is alleged that the Defendant obtained a title deed in relation to a parcel of land that belonged to the deceased (James Njuguna Mwangi) without the knowledge of the legal administrator of the Plaintiff.
17The other particulars of fraud raised by the Plaintiff include processing, transacting in relation to the said parcel of land without following due law and procedure.
18Further it is alleged that after the Defendant obtained a certificate of lease in relation to Land Plot Number Block 16/188, the defendant has commenced constructions on the aforesaid parcel of land to the detriment of the deceased estate.
19It is on this basis that the Plaintiff seeks cancellation of the title deed on portion of Land Parcel No Nakuru Municipality Block 16/188 situate at Milimani within Nakuru District.
20Fraud has been defined in Black’s Law Dictionary 11th Edition as 'A knowing misrepresentation or knowing concealment of material facts made to induce another to act to his or her detriment.' It is an established principle of law that a claim based on fraud must be specifically pleaded and strictly proved.
21The Plaintiff in this case has met the first test whereby at Paragraph 5 of the Plaint dated February 10, 2010, it has been specifically pleaded.
22The Court of Appeal in the case of Vijay Morjaria vs Nansingh, Madhusingh Darbar & another  eKLR held that: 'It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act 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.'
23This Court will now interrogate whether the Plaintiff has proved the alleged fraud to warrant the grant of the orders sought in the Plaint dated February 10, 2010.
24During the hearing of the Plaintiff’s case on January 30, 2018, the Plaintiff produced a lease in the name of her husband. The legal counsel for the defendant raised an objection and stated that it is a photocopy and it is not registered. This was marked as exhibit MFI-P1.
25The Court notes that in an effort to authenticate the evidence, the Land Registrar and Director of Surveys were to be called as witnesses. On November 22, 2018 the officers from the respective offices (Mr Edwin Wafula and Mr Victor Kirui) were directed to liaise with the Plaintiff to produce evidence.
26In the case of Koinange & 13 others vs Charles Karuga Koinange 1986 KLR at page 23 the court held that: 'When fraud is alleged by the Plaintiffs the onus is on the Plaintiffs to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.'
27Also in the case of Kinyanjui Kamau v George Kamau  eKLR the court dismissed the appeal as it was not demonstrated that the appellants had proved fraud to the required degree and stated that: 'It is trite law that any allegations of fraud must be pleaded and strictly proved. see Ndolo vs Ndolo 1KLR (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 the 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.'
28The Standard of proof in cases of fraud ought to be higher than in ordinary cases. This Court finds that this burden has not been discharged by the Plaintiff. No evidence has been adduced as directed by the Court pursuant to directions issued on November 22, 2018.
29Section 107, 108, 109 of the Evidence Act provides that:-
107.(1)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.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.'
30Given the foregoing, this Court finds that the Plaintiff has failed to prove fraud on the part of the Defendant and thus the claim of cancellation of the title deed on portion of Land Parcel No Nakuru Municipality Block 16/188 situate at Milimani within Nakuru District fails.