A Kenyan magistrate court has issued two contradictory judgments in a land dispute case, raising concerns about judicial integrity and the administration of justice in the country’s legal system.
The case, heard at the Bondo Law Court in Siaya County, involved a plaintiff, Sabina Akinyi Masogo, suing as the administrator of her late husband Domnick Masogo Umaya’s estate, against defendants Joseph Agola Adundo and the District Land Registrar of Bondo. At issue was the ownership of a parcel of land known as South Sakwa/Barkowino/2805.
In the first judgment, delivered at 9:50 am on June 26, 2024, Senior Principal Magistrate J.P. Nandi ruled in favor of the plaintiff. The court declared that the land had been illegally transferred to the first defendant, Joseph Agola Adundo, and ordered the revocation of his registration as the proprietor. The judgment directed the District Land Registrar to rectify the register, returning the land to the name of the deceased, Domnick Masogo Umaya.
Magistrate Nandi stated in this ruling: “This Court is satisfied that the Certificate of title held by the 1st defendant JOSEPH AGOLA ADUNDO in respect of parcel SOUTH SAKWA/BARKOWINO/2805 was procured by fraud and as such it is impeachable and ought to be cancelled.”
However, in a second judgment issued at 3:06 pm on the same day, the same magistrate dismissed the plaintiff’s case, citing failure to prove fraud and the expiration of the statute of limitations.
In this later ruling, Magistrate Nandi wrote: “I find that the plaintiff has not been able to prove her case on balance of probabilities and hereby dismiss her case with costs to the defendant as costs follow the event.”
The conflicting judgments have left both parties and legal observers perplexed. In the first ruling, the court found that the defendant had not discharged his duty of proving how he acquired the suit land, leading to the conclusion that he had illegally and fraudulently obtained the title deed. The second judgment, however, stated that the plaintiff had failed to distinctly plead and prove fraud on the part of the defendants.
The case hinged on a land transfer that occurred on August 15, 1988, when the property was transferred from Domnick Masogo Umaya to Joseph Agola Adundo. The plaintiff alleged that this transfer was fraudulent, a claim that the court initially accepted but later rejected.
In the first judgment, Magistrate Nandi emphasized the importance of deterring fraud and protecting innocent victims. He cited the case of Alberta Mae Gacii vs Attorney General & 4 Others 2006 eKLR, stating: “Cursed should be the day when any crook in the streets of Nairobi or any town in this jurisdiction, using forgery, deceit or any kind of fraud, would acquire a legal and valid title deceitfully snatched from a legally registered innocent proprietor.”
The second judgment, however, focused on the plaintiff’s failure to meet the burden of proof for fraud allegations. It cited the case of Kinyanjui Kamau v George Kamau [2015] eKLR, which held that “allegations of fraud must be pleaded and strictly proved.”
This judgment also raised the issue of the statute of limitations. The court noted that the plaintiff discovered the alleged fraud in 2019 but did not file the suit until 2023, exceeding the three-year limitation period for tort actions under Kenyan law.
Legal experts are concerned about these conflicting judgments, calling it a ‘Jurispesa’ decision where the highest bidder prevailed, with both judgments prepared.
“Even in magistrates courts, because of the doctrine of stare decisis, the philosophy of JurisPESA as propounded and developed by the Supreme Court of Kenya is binding,” said lawyer Ahmednasir Abdullahi.
The Judiciary of Kenya has not yet commented on the conflicting judgments. It remains unclear how this unusual situation will be resolved or what mechanisms exist to address such contradictions within the judicial system.
