A. Introduction
The Plaintiffs, as administrators of the estate of the late Christopher Kisaka Lukorito (hereinafter “the deceased”), instituted this suit vide a Plaint dated 16th November 2024 seeking, inter alia, cancellation of titles arising from land parcel NO. NDIVISI/KHALUMULI/1646, a declaration of fraud, eviction of the Defendants and reversion of the land to the estate of the deceased.
The 1st–7th Defendants opposed the suit and filed a counterclaim asserting, in the alternative, ownership by way of adverse possession.
The matter proceeded by way of viva voce evidence.
B. Background
It is common ground that the suit land, originally known as NDIVISI/KHALUMULI/1646, was registered in the name of the deceased, who died in 1995.
The Plaintiffs contend that:
1. The 1st Defendant fraudulently caused the suit land to be transferred into his name in 2003, long after the death of the deceased;
2. The land was subsequently subdivided and transferred to the 2nd–7th Defendants unlawfully;
3. The Land Registrar facilitated fraudulent entries.
The Defendants’ case, however, is that:
4. The deceased had, during his lifetime, sold portions of the suit land to various purchasers;
5. Those purchasers took possession and developed the land;
6. Following the deceased’s demise, the purchasers settled an outstanding loan secured over the land and appointed the 1st Defendant to facilitate transfer and subdivision;
7. The Defendants have been in open occupation of their respective portions for over two decades.
C. Issues for Determination
The Court distils the following issues for determination:
1. Whether the Plaintiffs’ suit is statute barred;
2. Whether fraud has been proved;
3. Whether the Defendants hold valid title and/or are protected purchasers;
4. Whether the Defendants have acquired title by adverse possession;
5. Appropriate reliefs.
D. Analysis
The Defendants invoke Sections 7 and 13 of the Limitation of Actions Act, while the Plaintiffs rely on Section 26, arguing that limitation runs from discovery of fraud in 2023.
The Court has carefully evaluated the evidence. It is not disputed that:
i) The transfer to the 1st Defendant occurred in 2003;
ii) The suit was filed in 2024;
iii) The suit land has been occupied and developed for over 20 years.
Evidence shows the existence of:
iv) Long-standing occupation by multiple families;
v) A public institution (Ngach Primary School) on the land;
vi) Correspondence involving the deceased’s family as early as 1998.
In Gathoni v Kenya Co-operative Creameries Ltd [1982] KLR 104, the Court emphasized that limitation statutes are intended to protect defendants against unreasonable delay.
Further, in Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, the Court of Appeal reiterated that time begins to run when the right of action accrues and that open occupation is a critical factor.
Comparatively, in the English case of Letang v Cooper [1965] 1 QB 232, courts warned against disguising stale claims as actions in fraud to circumvent limitation.
This Court is not persuaded that the Plaintiffs exercised reasonable diligence. The nature of occupation and developments on the land were overt and discoverable.
Accordingly, the Plaintiffs’ claim is statute barred.
Fraud must be strictly proved—see Dina Management Ltd v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR).
The Plaintiffs’ case hinges on the assertion that the deceased could not have transferred land in 2003.
However, the evidence demonstrates:
i) Existence of multiple sale agreements during the deceased’s lifetime;
ii) Possession by purchasers before his death;
iii) Posthumous efforts by purchasers to complete transactions;
iv) Participation of a family member (widow) in facilitating release of the title.
The Plaintiffs themselves conceded lack of knowledge of the deceased’s dealings.
In M’Miti v Ndwiga [2019] eKLR, the Court held that suspicion, however strong, cannot substitute proof of fraud.
This Court finds that fraud has not been established to the required standard.
The Defendants’ claim is anchored on purchaser interests and long possession.
Under the repealed Registered Land Act, rights of persons in possession constituted overriding interests.
In Mwangi & Another v Mwangi [1986] KLR 328, the Court recognized equitable interests arising from possession and sale agreements.
Comparatively, in Williams & Glyn’s Bank v Boland [1981] AC 487 (HL), it was held that actual occupation confers overriding interests binding on subsequent transactions.
The Defendants’ possession and developments were open, continuous and notorious. There is no evidence of participation in fraud.
Their titles are therefore indefeasible.
4. Adverse possession
The Defendants have also pleaded adverse possession.
In Public Trustee v Wanduru [1984] KLR 314, it was held that time begins to run when the true owner is dispossessed or discontinues possession.
The evidence establishes:
i) Continuous occupation from the early 1990s;
ii) No interruption by the estate of the deceased;
iii) Possession exceeding 12 years.
In Mtana Lewa (supra), adverse possession was described as a situation where the owner is dispossessed and another takes over openly.
Even if the initial entry was contractual, time ran after the death of the deceased and continued uninterrupted.
The Defendants have therefore proved adverse possession.
E. Disposition
In the result, this Court finds that the Plaintiffs’ suit is devoid of merit and the Defendants’ counterclaim is merited.
Accordingly, this Court makes the following consequential orders:
1. The Plaintiffs’ suit is hereby dismissed.
2. A declaration is hereby issued that the 1st–7th Defendants have acquired title to their respective portions of land originally comprised in NDIVISI/KHALUMULI/1646 by way of adverse possession.
3. The titles held by the 1st–7th Defendants pursuant to subdivisions of the original parcel are hereby upheld.
4. The prayers for cancellation of titles, eviction and reversion of the land to the estate of the deceased are hereby declined.
5. The Defendants’ counterclaim is allowed.
6. Costs of the suit and counterclaim are awarded to the 1st–7th Defendants.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24th DAY OF MARCH, 2026.
...............................................
HON E. C. CHERONO
JUDGE
ENVIRONMENT AND LAND COURT
In the presence of;
1. Mr. Wanyama for the 2nd-7th Defendants.
2. Mr. Nabibia for the Plaintiffs
3. Diana Kemboi C/A
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