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JUDGMENT OF THE COURT
1. The appellant, Nyangate Guto alias Watson Mogere Mogoko, was the plaintiff in HCCC No 2287 of 2007. He sued his son, Maxwell Okemwa Mogoro, the 1st respondent herein and National Bank of Kenya Limited, the 2nd respondent herein, alleging that the 1st respondent had forged his signature and used fraudulent means to transfer the property known as LR No 209 Section 3 to himself. After a full hearing before Mbogholi Msagha, J, the suit was dismissed with costs to the respondents in a judgment dated the 8th March, 2011.
2. The appellant was aggrieved with that decision and has now appealed against it. This is a first appeal, and the court bears an obligation to evaluate and consider all the evidence tendered before the trial court and make its own independent conclusion as was enunciated in Selle v Associated Motor Boat Company [1968] E.A. 123 at page 126, wherein the Court held that:
“... this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witness and should make due allowance in that respect.”
(3) It is therefore necessary to set out briefly the evidence adducedbefore the trial court. The appellant, who is also known as Nyangate Guto, claimed that he was the true owner of the property known as LR No 209
Section 3 in Nairobi (the suit property). The appellant alleged that on or about the 17th April 1996, the 1st respondent caused the suit property to be fraudulently registered in his name pursuant to a forged indenture dated the 30th December 1995. He got to know this when in July 2007, some people visited the suit property and took some photographs. This prompted him and his wife, Josephine Obaga Mogere, to conduct a search on the property which showed that it had been registered in the name of the 1strespondent.
The search also revealed that there were two mortgages registered against the title, and that these were in favour of the 2ndrespondent.
4. The indenture of conveyance was purported to have been executed between himself and the 1st respondent and indicated that he had received a consideration of Kshs 200,000.00 for the transfer of the suit property. The appellant claimed that the 1st respondent, in furtherance of his fraudulent actions, had mortgaged the suit property to the 2nd respondent to secure banking and credit facilities in the sum of Kshs 11,000,000.00. The appellant maintained that the indenture was invalid as it was forged; that he never received any money in exchange for the property; and that he was the owner of the property, a fact evinced by his continued receipt of rates demand notes in his name from the local authority.
5. The 1st respondent opposed the suit by way of a preliminary objection, stating that the claim was statute barred under the provisions of sections 4(2) and 26 of the Limitation of Actions Act. The 1st respondent called evidence to the effect that he purchased the suit property from his father for the sum of Kshs. 250,000.00 which was used to discharge a debt that the appellant had with the ICDC and which was secured by the suit property. The 1st respondent also called the advocate who had prepared the indenture, who testified that the signatures were not forged; that the parties had executed the document before him and that thereafter the indenture was registered at the lands office.
6. The 2nd respondent on its part alleged that in granting security and credit facilities on the basis of the title, it dealt with the 1st respondent as the owner of the suit property and had no cause to doubt the 1st respondent’s title thereto. The 2nd respondent maintained that the mortgage documents between itself and the 1st respondent were valid and lawful and as such, there was no reasonable cause of action against it.
7. The main thrust of the appellant’s case was that his son had forged his signature on the indenture and fraudulently transferred the suit property to himself. As the claim was based on fraud, the appellant, as the party making the allegation was required not only to plead it but also to prove the same. This is in line with the law as was stated in Rosemary Wanjiku Murithi v George Maina Ndinwa, [2014] eKLR (Civil Appeal No. 9 of 2014), where this Court held that:
“Proof of fraud involves questions of fact. Simply raising the issue of fraud in a statement of defence and counterclaim is not proof of fraud.”
8. As they are serious allegations, the onus is on the party alleging fraud to provide evidence to the court that rises to the standard of proof which was underscored by this Court in Central Bank of Kenya Limited v. Trust Bank Limited and 4 Others [1996] eKLR (Civil Appeal No. 215 of 1996)as being beyond that of a balance of probabilities. In that appeal, the Court rendered itself as follows:
“The appellant has made vague and very general allegations of fraud against the respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case.”
9. The Court drew from the early decision of Gudka v. Dodhia [1982] eKLR (Civil Appeal No. 21 of 1980) where Law, JA (as he then was) stated:
“the respondent was in effect being accused of fraudulent conduct and allegations of fraud must be strictly proved. The fraudulent conduct must be strictly proved more than a mere balance of probabilities as required in R G Patel Lalji Makanji [1957] EA 314.”
10. After evaluation of the totality of the appellant’s case, we find that he has not led any evidence to prove fraud or forgery. This much was stated by the High Court, correctly in our view, when it stated that:
“It will be noted from the foregoing evidence that the plaintiff has not given any evidence alleging fraud, misrepresentation or forgery attributed to either the 1st or the 2nd defendant or any other party. The plaint gives the foundation of the plaintiffs’ case. Pleadings must be proved by evidence to justify any orders that have been sought in the plaint.
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the question is whether or not the plaintiff executed the Indenture in favour of the 1st defendant in 1995. The plaintiff’s evidence cited above is of no assistance to the court neither is the evidence of P.W. 4 who said she did not know when the title to the suit property disappeared and also could not tell if the plaintiff executed the Indenture. In any case, the plaintiff was supposed to prove fraud and forgery on the part of the 1st defendant. The burden and standard of proof lies entirely within the province of the plaintiff. A standard of proof approaching proof beyond any reasonable doubt is required to establish fraud. And 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.”
11. With this finding, the entirety of the appellant’s case failed. Without evidence that the signature on the indenture was forged, or that the 1st respondent procured registration of the property fraudulently, the suit against the 1st and 2nd respondents must fail.
12. During the hearing before us, the appellant’s counsel, Mr. Havi, submitted that the learned judge had erred in failing to consider whether or not Nyangate Guto, who was registered as owner of the property, was the same person as Watson Mogere Mogoko, and also whether or not the 1st respondent had purchased the property from a stranger. The evidence led before the court was that Nyangate Guto and Watson Mogere Mogoko were one and the same person, and that the 1st respondent had purchased the property from him. This evidence was supported by the testimony of Stephen Wanyoike Kinuthia, the advocate who prepared the indenture, who confirmed that the parties had appeared before him and did in fact execute the same. Our opinion of this issue is that it did not affect the appellant’s claim, and this ground of appeal therefore fails.
13. The upshot of our findings is that the learned judge was right in dismissing the suit before him. This appeal is therefore without merit, and we order that it be and is hereby dismissed with costs to the respondents.
Dated and delivered at Nairobi this 31st day of July, 2015.
P. KIHARA KARIUKI (PCA)
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JUDGE OF APPEAL
ALNASHIR VISRAM
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JUDGE OF APPEAL
F. SICHALE
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JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR