Kanji Patel v. Kabui Njoroge, Civ. App. 19 of 1971; E. A. C. A. 19/8/71; Spry V. P., Lutta and Mustafa JJ. A.

Kanji Patel v. Kabui Njoroge, Civ. App. 19 of 1971; E. A. C. A. 19/8/71; Spry V. P., Lutta and Mustafa JJ. A.

The plaintiff brought an action to recover the amount of three dishonored promissory notes. The defence was that the defendant had been induced by fraud to draw the notes. The fraud alleged in the defence was that at the time when the promissory notes were drawn the plaintiff represented to the defendant that a sum of Shs. 22, 635/- was due by the Defendant to a third party when in fact only a sum of Shs. 14,400/- was due. The trial Court on inconclusive evidence found for the defendant and dismissed the action.

Held: (Spry V. P.) (1) “The learned judge directed himself correctly that the burden of proof was on the respondent but, with respect, he seriously misdirected himself when he went on to say that in view of the allegations of fraud, the standard of proof was “slightly” higher than in ordinary civil cases. In fact, the standard is very much higher (see Henry H. Ilanga v. Manyema Manyoka [1961] E. A. 705; United Africa Press Ltd. v. Shah [1964 E. A. 336). In my opinion, the standard of proof required where there is an allegation of deliberate, calculated fraud, is not very far short of that required in criminal proceedings of a like nature.” (2) Appeal allowed.