Introduction
1. Vide the Memorandum of Appeal filed herein dated 1 st September 2025, BROWN OLUKUSI, the appellant, preferred the appeal herein against the judgment dated 19 th August 2025 in VIHIGA MC ELC CASE NO. E055 OF 2023. The grounds upon which the appeal is brought are that the trial Magistrate erred in law:
a. in allowing the plaintiff’s case when the same had not been proved on a balance of probabilities as required by law.
b. in granting orders of eviction against the appellant when the said orders were never sought in the plaint.
c. in ordering cancellation of the appellant’s title and/or registration of land parcel EAST BUNYORE/EMAKUNDA/1286 when fraud was never proved by the Respondent.
d. in failing to consider the evidence of the appellant with regard to his acquisition and subsequent registration of the appellant as the owner of land parcel No. EAST BUNYORE/EMAKUNDA/1286 that was duly effected through a court process.
e. in failing to consider that the plaintiff’s/Respondent’s case was barred by time through the evidence relied on by the Respondent.
f. in finding that the order made on 2 nd March 2024 never mentioned sub-division of the original parcel No. EAST BUNYORE/EMAKUNDA/964 when the appellant was only entitled to a portion as directed by the Tribunal and adopted by the court.
g. and in fact, in failing to consider that agreements entered into by the Defendant were done before land adjudication in the year 1964 or thereabouts.
h. in allowing the Plaintiff’s case when the same was in contravention of the provisions of the law as provided under the Civil Procedure Act on particularizing the allegations of fraud in pleadings.
i. in failing to consider the provisions of the law on registration of land and cancellation of the titles.
j. in failing to consider that it was not disputed that the appellant had been in use and occupation of the suit land for more than 50 years.
2. The appellant sought orders that the appeal be allowed and the judgment of the trial court be set aside with costs.
Background
3. A brief background of the appeal is that, vide the Plaint dated 19 th September 2023, the Respondent, on behalf of the estate of JOEL OMUMIA OLUKUSI, deceased, sued the appellant herein in VIHIGA MC E& L CASE NO. E055 OF 2023 (herein referred to as the suit). The subject matter of the suit was a parcel of land known as EAST BUNYORE/EMAKUNDA/964 (the suit land). The Respondent’s case in the suit was that at all material times the suit land belonged to the deceased who died on 2 nd September 2020. She claimed that she recently learnt that the suit land had been sub-divided, yet she still held the original title deed in the name of the deceased. The Respondent pleaded that the actions of the appellant were fraudulent.
4. The Respondent therefore, vide the plaint, sought orders that: -
a) The sub-division of the suit land to create land parcel Nos. EAST BUNYORE/EMAKUNDA/1285 and 1286 in the year 2004 in the names of the deceased and the appellant respectively was fraudulent.
b) Cancellation of titles in respect of EAST BUNYORE/EMAKUNDA/ 1285 and 1286 and the land do revert to EAST BUNYORE/EMAKUNDA/964 in the name of the deceased.
c) The title issued to the appellant in respect of EAST BUNYORE/EMAKUNDA/1286 be surrendered to the Land Registrar, Vihiga County and be destroyed.
d) Costs of the suit to be paid by the Defendant (Appellant herein).
5. The record shows that in response to the Plaintiff/Respondent’s claim in the plaint, the appellant filed a Statement of Defence and Counterclaim dated 11 th October 2023. He denied the claim and averred that he had bought two pieces of land which, during land adjudication, were erroneously combined with land parcel No. EAST KITUTU/EMAKUNDA/964 registered in the plaintiff’s name. He averred further that registration of land parcel No. EAST BUNYORE/EMAKUNDA/1286 in his name was through a process that was fully sanctioned by the court.
6. Through the Counterclaim, the appellant claimed that the Respondent and her sons had been interfering with his quiet possession and enjoyment of his land parcel No. EAST BUNYORE/EMAKUNDA/1286 by causing unnecessary destruction and disturbance to his detriment. He therefore sought an order of permanent injunction, an order that the suit by the Respondent be dismissed, and costs of the suit.
7. The record shows that the suit was heard by the trial court which, vide the judgment dated 19 th August 2025, found that the Respondent had proved her claim against the appellant on a balance of probabilities and entered judgment in favour of the Respondent for:
a) A declaration that the plaintiff (Respondent herein) is the legitimate owner of the suit land.
b) An order that the sub-division of the suit land to create parcel numbers EAST BUNYORE/EMAKUNDA/1285 and 1286 was fraudulent and illegal.
c) An order that the titles for land parcel numbers EAST BUNYORE/EMAKUNDA/1285 and 1286 are cancelled and the land reverted to the suit land in the name of the deceased.
d) An order that the title deed issued to the Defendant for EAST BUNYORE/EMAKUNDA/1286 be surrendered to the Land Registrar, Vihiga County for destruction.
e) The defendant (Appellant herein) is ordered to grant vacant possession of land parcel No. EAST BUNYORE/EMAKUNDA/1286 within 90 days from the date of the judgment, failure to which eviction to issue.
f) The defendant (Appellant) was condemned to pay costs of the suit and the counter-claim
g) The counter-claim was dismissed.
8. The judgment is the subject of the present appeal.
Submissions
9. Pursuant to directions given on 12/2/2026, the appeal was heard by way of written submissions. Written submissions dated 26 th March 2026 were filed by Andia & Company Advocates on behalf of the appellant, while written submissions dated 12 th May 2026 were filed by Florah Achiko Malanda, Advocate, on behalf of the Respondent. The court shall refer to the submissions as it determines the issues herein.
Issues for determination
10. Although the appellant raised 10 grounds of appeal, he framed the same into 4 issues for determination herein; namely:
a) Whether the Respondent proved fraud against the appellant to the required standard to warrant cancellation of the appellant’s title to EAST BUNYORE/EMAKUNDA/128.
b) Whether the trial court granted an order of eviction that was not sought in the plaint.
c) Whether the Respondent’s claim was statute-barred.
d) Whether the trial court failed to properly evaluate the appellant’s evidence and the history of the land and arrived at a judgment that was against the weight of the evidence.
The court adopts these as the issues for determination in this appeal.
Analysis and determination
11. This is a first appeal; hence the court has a duty to consider the whole evidence produced before the trial court, re-evaluate it, and arrive at its own independent conclusion. While doing so, the court keeps in mind the fact that the trial court had the advantage, which this court does not have, of seeing and hearing the parties and their witnesses first-hand. In the case of Gitobu Imanyara & 2 others –vs- Attorney General [2016] e KLR, the court held that the principles upon which a first appellate court proceeds are well settled and stated that:-
“Briefly put, they are 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 witnesses and should make due allowances in this respect.”
(Also see Selle & Another v Associated Motor Boat Company Ltd & Another (1968) IEA 123 and Peter M. Kariuki vs Attorney General [2014]eKLR)
The first issue for determination is whether the Respondent proved fraud against the appellant to the required standard to warrant cancellation of the appellant’s title.
EAST BUNYORE/EMAKUNDA/128.
12. It was submitted on behalf of the appellant that the Respondent did not plead fraud in the plaint. That it was the trial court that introduced the issue of fraudulent acquisition of the title deed in its judgment. Counsel relied on the provisions of section 28 of the Land Registration Act on indefeasibility of title and submitted that the trial court, despite correctly holding that the burden of proof to prove fraud squarely lay with the Respondent, went ahead to misdirect itself and unlawfully shift that burden to the appellant.
13. Counsel relied on the case of Mbai & Another (both suing as representatives of the estate of the late John Mbai Karoi, deceased) vs Mbai & 2 others where it was held that when a party alleges fraud, they must specifically plead the particulars thereof and strictly prove the same. Counsel submitted that the trial court erroneously arrived at that conclusion against the pleadings and the evidence presented. That such fundamental error warrants this court to allow the appeal.
14. On behalf of the Respondent, it was submitted on this issue that the Respondent produced a title deed for land parcel No. EAST BUNYORE/EMAKUNDA/964 which showed that the land was registered in the name of the deceased. That the Respondent also produced a copy of the judgment in Vihiga Civil Suit No. 107 of 1995 which showed that the appellant’s claim of ownership of a portion of the suit land was dismissed. That there was fraud on the part of the appellant. That the appellant had the suit land subdivided through fraudulent means, having misled the court that there was consent by the Respondent's husband.
15. I have read the plaint dated 19 th September 2023. The requirement to specifically plead fraud is contained in Order 2 Rule 4 of the Civil Procedure Rules. The Respondent pleaded in paragraph 20 of the plaint that the transactions conducted by the defendant over land parcel No. EAST BUNYORE/EMAKUNDA/964 in the year 2004 were fraudulent. The rest of the plaint, particularly paragraphs 11, 12, 13, 14, 15, 16 and 18 of the plaint, contains the particulars of the fraud as follows: the appellant who had initially been claiming a portion measuring 0.49Ha had gone ahead and taken a portion measuring 0.51 Ha from the suit land, that the appellant never served any documents upon the deceased to show that he had appealed against the judgement dated 4 th July 1997 which had dismissed the case, that the subdivision was based on a decree awarded to the appellant without the knowledge of the deceased, that the mutation was signed on behalf of the deceased when he was still alive.
16. As to whether the Respondent proved the fraud, the burden of proof was with the Respondent to prove the existence of the facts he alleged in accordance with the provisions of section 107 of the Evidence Act, Chapter 80 of the Laws of Kenya. The standard of proof on a claim based on the tort of fraud is higher than proof on a balance of probabilities. In Vijay Morjaria vs Nansingh, Madhusingh Darbar & another [2000] eKLR, it was 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.”
17. The evidence of the Respondent before the trial court comprised her testimony and the exhibits that she produced. She adopted the contents of her witness statements dated 19/9/2023. The Respondent rehashed the contents of the plaint in her witness statement. She produced the documents on the list of documents dated 19/9/2023 as her exhibits. The evidence of the Respondent demonstrated that the deceased and the appellant had engaged in litigation over the suit land in the lifetime of the deceased.
18. One such case was VIHIGA PMCCC NO. 107 of 1995 BROWN OLUKUSI vs JOEL OMUMIA OLUKUSI in which, vide the judgment dated 4/7/1997, the court found, inter alia, that the registration of the suit land in the name of the deceased was a first registration which could not, under section 143 Cap 300 (Registered Land Act, now repealed), be impeached. The court dismissed the suit with full costs. The court observed that the appellant could claim compensation for his building only if the deceased had never stopped him from building there. Copies of the proceedings and judgment in respect thereof were produced as exhibits. There is no evidence that this decision was ever appealed against, reviewed, varied or set aside.
19. The next litigation is what was alluded to by the appellant who testified that he went to Vihiga court for assistance, as he was advised by the Tribunal. That the court issued orders that the Executive Officer does sign subdivision forms to enable him to process the subdivision, which he did with the knowledge of his brother Joel. To prove this, the record shows that the appellant produced before the trial court 2 versions of a decree, both emanating from VIHIGA SRMC Misc. Civil Appt. No. 87 of 1998. They were listed in the appellant's list of documents dated 11 th October 2023 as document numbers 5 and 6.
20. Document No 5 dated 2 nd March 2004 is titled " Decree ". It directed that the elders’ award of the Emuhaya Land Tribunal filed on 16th December 1999 in respect of land parcel No. E. Bunyore/Emuhaya/964 be adopted as the judgment of the court and the Executive Officer of the court to sign the necessary forms for the applicant on behalf of the Respondent to enable him to obtain a certificate for his portion. Document 6 is also a decree in almost similar terms but signed by a different Judicial Officer. The decree was issued on 23rd January 2001.
21. It was the appellant's case that this is the process through which he obtained his title deed and registration as owner of parcel No. EAST BUNYORE/EMAKUNDA/1286.
22. It is not clear why the appellant filed the said claim before the Tribunal, if at all, since the same claim had already been disposed of by the court in case No Vihiga PMCC 107 of 1995. Secondly, there is no evidence that the deceased was aware of the proceedings, if any, before the Tribunal. No evidence of service or any kind of notification of the existence of the proceedings before the Tribunal was exhibited. The proceedings of the Tribunal were not exhibited to show whether or not the deceased participated.
23. In Case No. 107 of 1995, the proceedings which were produced as exhibit and which are on pages 21-23 of the record of appeal show that the portion that the appellant claimed measured 0.49 hectares. However, his title deed shows that he ultimately got himself registered as owner of a portion measuring 0.51 hectares. No explanation was given as to how the portion increased by about 0.02 Ha.
24. The evidence placed before the trial court showed that the appellant, who had lost in case No Vihiga PMCC 107 of 1995, purported to file another case at the Land Tribunal, vide which he caused subdivision of the suit land and obtained parcel No. EAST BUNYORE/EMAKUNDA/1286, and that the portion that was ultimately registered in his name was more than what he earlier claimed. This was fraudulent. I find that the trial court did not err when it found and held that the subdivision of the suit land to create parcel No.s EAST BUNYORE/EMAKUNDA/1285 AND 1286 was illegal and fraudulent
The second issue for determination is whether the trial court granted an order of eviction that was not sought in the plaint.
25. It was submitted on behalf of the appellant that in the plaint dated 19th September 2023, the Respondent did not seek an order of eviction. That it was an error for the trial court to grant the order of eviction. Counsel relied on the case of Independent Electoral & Boundaries Commission & Another vs Stephen Mutie Mule & 3 Others eKLR where the Court of Appeal held inter alia that parties are bound by their pleadings which in turn limits the issues upon which a trial court may pronounce itself. Counsel submitted further that eviction is a sweeping order which the court should not grant unless it is specifically pleaded and proved on trial.
26. On behalf of the Respondent, it was submitted that an order of eviction was a necessary consequential order flowing from the primary relief granted where the court ordered for cancellation of the title deed held by the appellant. Counsel submitted that a court has discretion to make orders that effectuate its final judgment. Counsel relied on the decisions in Christopher Ngeno vs Eunice Kurgat (2021) KEELC 2730 (KLR) and Jiveti vs Amutemi (KEELC) 631 (KLR) and Article 159 (2) (d) of the Constitution to support the submission
27. The essence of a pleading is to state case party's case precisely, thereby giving notice to the opposite party to respond adequately. In the present case, eviction was not pleaded or prayed for in the plaint but was granted in the judgment. The Respondent argues that the same was granted as a consequential relief flowing from the other relief granted. The trial court could not grant such relief that had not been sought.
The 3 rd issue for determination is whether the Respondent’s claim was statute-barred
28. In paragraph 11 of the Defence and counterclaim, the appellant had pleaded that the Respondent seemed to be challenging a decree that was issued and executed more than 12 years ago, thus violating the provisions of section 4 (4) of the Limitation of Actions Act, rendering her suit time-barred.
29. It was submitted herein on behalf of the appellant that the evidence before the Court showed that the subdivision and registration occurred around 2004. That the present suit was filed about 19 years later, in 2023. That the action is time-barred by the provisions of section 7 of the Limitation of Actions Act. That the trial Magistrate failed to address and consider this important statutory limitation and that this was a fatal error on the part of the trial Court.
30. On behalf of the Respondent, it was submitted that the cause of action arose upon discovery of the fraud and the irregular sub-division of the land by the appellant. That under Section 26 of the Land Registration Act, a certificate of title is prima facie evidence of ownership. That the Respondent believed in the validity of the title held by her husband before he died. Citing Section 26 of the Limitation of Actions Act, Counsel submitted that the Respondent and her deceased husband had no notice of the sub-division until the Respondent applied for an official search with the intention to undertake succession to the estate of her deceased husband, who died in the year 2020, that she discovered the illegal sub-division. That the appellant cannot therefore benefit from his wrongful action of sub-dividing the land without the consent of the owner. Counsel concluded that the Respondent’s claim was not time-barred.
31. Section 7 of the Limitation of Actions Act provides the limitation period for filing of actions for recovery of land as follows:
“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
32. It is not denied that the suit was filed about 19 years from the date the cause of action arose. The appellant's title deed for land parcel No. East Bunyore Emakunda/ 1286 is dated 12th May 2004. This was outside the limitation period. The cause of action accrued in the lifetime of the deceased, who died 16 years later in the year 2020. Part of the relief sought is recovery of the suit land and, particularly, parcel No. 1286, which is registered in the name of the appellant.
33. Section 26 of the Limitation of Actions Act provides for an extension of time where the cause of action is based on fraud or mistake and provides that time begins to run from the date the fraud or mistake is discovered. The date of discovery, being a crucial date for purposes of determining whether the suit is within time or not, must be pleaded. There is no date pleaded in the plaint as to when the fraud was discovered. The Respondent pleaded and testified that it was only recently that she discovered that sub-division of the suit land had taken place. No specific date was assigned to the “recently”. Counsel submitted that the discovery occurred when the Respondent conducted a search with a view to commencing succession proceedings to the estate of the deceased.
34. I find that no sufficient material was pleaded or proved to afford the Respondent the extension of time provided for in Section 26 of the Limitation of Actions Act.
35. Further, under section 4 (4) of the Limitation of Actions Act, an action may not be brought upon a judgment after the end of 12 years from the date on which the judgment was delivered.
36. There is a rationale for the law on limitation of actions. In the case of Gathoni –vs- Kenya Co-operative Creameries Ltd [1983] KLR 104 , the court observed that
“The law of limitation of actions is intended to protect defendants against unreasonable delay in bringing suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest.’’
Similarly, in Rawal –vs- Rawal [1990] KLR 275, the court held that:
“The object of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand and on the other hand protect a defendant after he had lost evidence for the defence from being disturbed after a long lapse of time.’’
37. Thus, one of the critical preliminary issues that a trial court must satisfy itself on is that the cause before it is brought within the limitation period. In the present case, though the Respondent had a good claim based on the tort of fraud, she ought to have brought it within the limitation period. Having examined the pleadings and evidence placed before the trial court, I find that the suit as filed was time-barred.
The last issue for determination is whether the trial court failed to evaluate the appellant's evidence and the history of the land and thereby arrived at a judgment that is against the weight of the evidence.
38. This issue is related to issue No. 1 determined hereinabove.
39. For the foregoing reasons, I find that the appeal has merit and I hereby allow it as follows:
i. The judgment of the trial court is set aside and substituted with an order that the suit, having been filed out of time, is hereby struck out.
ii. Each party shall bear its own costs of the appeal.
Orders accordingly.
Judgment dated and signed at Vihiga and delivered virtually this 17 th day of September 2026.
E. ASATI,
JUDGE.
In the presence of:
Sang- Court Assistant.
Andia for the Appellant
Malanda for the Respondent.
user2
1. Vide the Memorandum of Appeal filed herein dated 1 st September 2025, BROWN OLUKUSI, the appellant, preferred the appeal herein against the judgment dated 19 th August 2025 in VIHIGA MC ELC CASE NO. E055 OF 2023. The grounds upon which the appeal is brought are that the trial Magistrate erred in law:
a. in allowing the plaintiff’s case when the same had not been proved on a balance of probabilities as required by law.
b. in granting orders of eviction against the appellant when the said orders were never sought in the plaint.
c. in ordering cancellation of the appellant’s title and/or registration of land parcel EAST BUNYORE/EMAKUNDA/1286 when fraud was never proved by the Respondent.
d. in failing to consider the evidence of the appellant with regard to his acquisition and subsequent registration of the appellant as the owner of land parcel No. EAST BUNYORE/EMAKUNDA/1286 that was duly effected through a court process.
e. in failing to consider that the plaintiff’s/Respondent’s case was barred by time through the evidence relied on by the Respondent.
f. in finding that the order made on 2 nd March 2024 never mentioned sub-division of the original parcel No. EAST BUNYORE/EMAKUNDA/964 when the appellant was only entitled to a portion as directed by the Tribunal and adopted by the court.
g. and in fact, in failing to consider that agreements entered into by the Defendant were done before land adjudication in the year 1964 or thereabouts.
h. in allowing the Plaintiff’s case when the same was in contravention of the provisions of the law as provided under the Civil Procedure Act on particularizing the allegations of fraud in pleadings.
i. in failing to consider the provisions of the law on registration of land and cancellation of the titles.
j. in failing to consider that it was not disputed that the appellant had been in use and occupation of the suit land for more than 50 years.
2. The appellant sought orders that the appeal be allowed and the judgment of the trial court be set aside with costs.
Background
3. A brief background of the appeal is that, vide the Plaint dated 19 th September 2023, the Respondent, on behalf of the estate of JOEL OMUMIA OLUKUSI, deceased, sued the appellant herein in VIHIGA MC E& L CASE NO. E055 OF 2023 (herein referred to as the suit). The subject matter of the suit was a parcel of land known as EAST BUNYORE/EMAKUNDA/964 (the suit land). The Respondent’s case in the suit was that at all material times the suit land belonged to the deceased who died on 2 nd September 2020. She claimed that she recently learnt that the suit land had been sub-divided, yet she still held the original title deed in the name of the deceased. The Respondent pleaded that the actions of the appellant were fraudulent.
4. The Respondent therefore, vide the plaint, sought orders that: -
a) The sub-division of the suit land to create land parcel Nos. EAST BUNYORE/EMAKUNDA/1285 and 1286 in the year 2004 in the names of the deceased and the appellant respectively was fraudulent.
b) Cancellation of titles in respect of EAST BUNYORE/EMAKUNDA/ 1285 and 1286 and the land do revert to EAST BUNYORE/EMAKUNDA/964 in the name of the deceased.
c) The title issued to the appellant in respect of EAST BUNYORE/EMAKUNDA/1286 be surrendered to the Land Registrar, Vihiga County and be destroyed.
d) Costs of the suit to be paid by the Defendant (Appellant herein).
5. The record shows that in response to the Plaintiff/Respondent’s claim in the plaint, the appellant filed a Statement of Defence and Counterclaim dated 11 th October 2023. He denied the claim and averred that he had bought two pieces of land which, during land adjudication, were erroneously combined with land parcel No. EAST KITUTU/EMAKUNDA/964 registered in the plaintiff’s name. He averred further that registration of land parcel No. EAST BUNYORE/EMAKUNDA/1286 in his name was through a process that was fully sanctioned by the court.
6. Through the Counterclaim, the appellant claimed that the Respondent and her sons had been interfering with his quiet possession and enjoyment of his land parcel No. EAST BUNYORE/EMAKUNDA/1286 by causing unnecessary destruction and disturbance to his detriment. He therefore sought an order of permanent injunction, an order that the suit by the Respondent be dismissed, and costs of the suit.
7. The record shows that the suit was heard by the trial court which, vide the judgment dated 19 th August 2025, found that the Respondent had proved her claim against the appellant on a balance of probabilities and entered judgment in favour of the Respondent for:
a) A declaration that the plaintiff (Respondent herein) is the legitimate owner of the suit land.
b) An order that the sub-division of the suit land to create parcel numbers EAST BUNYORE/EMAKUNDA/1285 and 1286 was fraudulent and illegal.
c) An order that the titles for land parcel numbers EAST BUNYORE/EMAKUNDA/1285 and 1286 are cancelled and the land reverted to the suit land in the name of the deceased.
d) An order that the title deed issued to the Defendant for EAST BUNYORE/EMAKUNDA/1286 be surrendered to the Land Registrar, Vihiga County for destruction.
e) The defendant (Appellant herein) is ordered to grant vacant possession of land parcel No. EAST BUNYORE/EMAKUNDA/1286 within 90 days from the date of the judgment, failure to which eviction to issue.
f) The defendant (Appellant) was condemned to pay costs of the suit and the counter-claim
g) The counter-claim was dismissed.
8. The judgment is the subject of the present appeal.
Submissions
9. Pursuant to directions given on 12/2/2026, the appeal was heard by way of written submissions. Written submissions dated 26 th March 2026 were filed by Andia & Company Advocates on behalf of the appellant, while written submissions dated 12 th May 2026 were filed by Florah Achiko Malanda, Advocate, on behalf of the Respondent. The court shall refer to the submissions as it determines the issues herein.
Issues for determination
10. Although the appellant raised 10 grounds of appeal, he framed the same into 4 issues for determination herein; namely:
a) Whether the Respondent proved fraud against the appellant to the required standard to warrant cancellation of the appellant’s title to EAST BUNYORE/EMAKUNDA/128.
b) Whether the trial court granted an order of eviction that was not sought in the plaint.
c) Whether the Respondent’s claim was statute-barred.
d) Whether the trial court failed to properly evaluate the appellant’s evidence and the history of the land and arrived at a judgment that was against the weight of the evidence.
The court adopts these as the issues for determination in this appeal.
Analysis and determination
11. This is a first appeal; hence the court has a duty to consider the whole evidence produced before the trial court, re-evaluate it, and arrive at its own independent conclusion. While doing so, the court keeps in mind the fact that the trial court had the advantage, which this court does not have, of seeing and hearing the parties and their witnesses first-hand. In the case of Gitobu Imanyara & 2 others –vs- Attorney General [2016] e KLR, the court held that the principles upon which a first appellate court proceeds are well settled and stated that:-
“Briefly put, they are 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 witnesses and should make due allowances in this respect.”
(Also see Selle & Another v Associated Motor Boat Company Ltd & Another (1968) IEA 123 and Peter M. Kariuki vs Attorney General [2014]eKLR)
The first issue for determination is whether the Respondent proved fraud against the appellant to the required standard to warrant cancellation of the appellant’s title.
EAST BUNYORE/EMAKUNDA/128.
12. It was submitted on behalf of the appellant that the Respondent did not plead fraud in the plaint. That it was the trial court that introduced the issue of fraudulent acquisition of the title deed in its judgment. Counsel relied on the provisions of section 28 of the Land Registration Act on indefeasibility of title and submitted that the trial court, despite correctly holding that the burden of proof to prove fraud squarely lay with the Respondent, went ahead to misdirect itself and unlawfully shift that burden to the appellant.
13. Counsel relied on the case of Mbai & Another (both suing as representatives of the estate of the late John Mbai Karoi, deceased) vs Mbai & 2 others where it was held that when a party alleges fraud, they must specifically plead the particulars thereof and strictly prove the same. Counsel submitted that the trial court erroneously arrived at that conclusion against the pleadings and the evidence presented. That such fundamental error warrants this court to allow the appeal.
14. On behalf of the Respondent, it was submitted on this issue that the Respondent produced a title deed for land parcel No. EAST BUNYORE/EMAKUNDA/964 which showed that the land was registered in the name of the deceased. That the Respondent also produced a copy of the judgment in Vihiga Civil Suit No. 107 of 1995 which showed that the appellant’s claim of ownership of a portion of the suit land was dismissed. That there was fraud on the part of the appellant. That the appellant had the suit land subdivided through fraudulent means, having misled the court that there was consent by the Respondent's husband.
15. I have read the plaint dated 19 th September 2023. The requirement to specifically plead fraud is contained in Order 2 Rule 4 of the Civil Procedure Rules. The Respondent pleaded in paragraph 20 of the plaint that the transactions conducted by the defendant over land parcel No. EAST BUNYORE/EMAKUNDA/964 in the year 2004 were fraudulent. The rest of the plaint, particularly paragraphs 11, 12, 13, 14, 15, 16 and 18 of the plaint, contains the particulars of the fraud as follows: the appellant who had initially been claiming a portion measuring 0.49Ha had gone ahead and taken a portion measuring 0.51 Ha from the suit land, that the appellant never served any documents upon the deceased to show that he had appealed against the judgement dated 4 th July 1997 which had dismissed the case, that the subdivision was based on a decree awarded to the appellant without the knowledge of the deceased, that the mutation was signed on behalf of the deceased when he was still alive.
16. As to whether the Respondent proved the fraud, the burden of proof was with the Respondent to prove the existence of the facts he alleged in accordance with the provisions of section 107 of the Evidence Act, Chapter 80 of the Laws of Kenya. The standard of proof on a claim based on the tort of fraud is higher than proof on a balance of probabilities. In Vijay Morjaria vs Nansingh, Madhusingh Darbar & another [2000] eKLR, it was 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.”
17. The evidence of the Respondent before the trial court comprised her testimony and the exhibits that she produced. She adopted the contents of her witness statements dated 19/9/2023. The Respondent rehashed the contents of the plaint in her witness statement. She produced the documents on the list of documents dated 19/9/2023 as her exhibits. The evidence of the Respondent demonstrated that the deceased and the appellant had engaged in litigation over the suit land in the lifetime of the deceased.
18. One such case was VIHIGA PMCCC NO. 107 of 1995 BROWN OLUKUSI vs JOEL OMUMIA OLUKUSI in which, vide the judgment dated 4/7/1997, the court found, inter alia, that the registration of the suit land in the name of the deceased was a first registration which could not, under section 143 Cap 300 (Registered Land Act, now repealed), be impeached. The court dismissed the suit with full costs. The court observed that the appellant could claim compensation for his building only if the deceased had never stopped him from building there. Copies of the proceedings and judgment in respect thereof were produced as exhibits. There is no evidence that this decision was ever appealed against, reviewed, varied or set aside.
19. The next litigation is what was alluded to by the appellant who testified that he went to Vihiga court for assistance, as he was advised by the Tribunal. That the court issued orders that the Executive Officer does sign subdivision forms to enable him to process the subdivision, which he did with the knowledge of his brother Joel. To prove this, the record shows that the appellant produced before the trial court 2 versions of a decree, both emanating from VIHIGA SRMC Misc. Civil Appt. No. 87 of 1998. They were listed in the appellant's list of documents dated 11 th October 2023 as document numbers 5 and 6.
20. Document No 5 dated 2 nd March 2004 is titled " Decree ". It directed that the elders’ award of the Emuhaya Land Tribunal filed on 16th December 1999 in respect of land parcel No. E. Bunyore/Emuhaya/964 be adopted as the judgment of the court and the Executive Officer of the court to sign the necessary forms for the applicant on behalf of the Respondent to enable him to obtain a certificate for his portion. Document 6 is also a decree in almost similar terms but signed by a different Judicial Officer. The decree was issued on 23rd January 2001.
21. It was the appellant's case that this is the process through which he obtained his title deed and registration as owner of parcel No. EAST BUNYORE/EMAKUNDA/1286.
22. It is not clear why the appellant filed the said claim before the Tribunal, if at all, since the same claim had already been disposed of by the court in case No Vihiga PMCC 107 of 1995. Secondly, there is no evidence that the deceased was aware of the proceedings, if any, before the Tribunal. No evidence of service or any kind of notification of the existence of the proceedings before the Tribunal was exhibited. The proceedings of the Tribunal were not exhibited to show whether or not the deceased participated.
23. In Case No. 107 of 1995, the proceedings which were produced as exhibit and which are on pages 21-23 of the record of appeal show that the portion that the appellant claimed measured 0.49 hectares. However, his title deed shows that he ultimately got himself registered as owner of a portion measuring 0.51 hectares. No explanation was given as to how the portion increased by about 0.02 Ha.
24. The evidence placed before the trial court showed that the appellant, who had lost in case No Vihiga PMCC 107 of 1995, purported to file another case at the Land Tribunal, vide which he caused subdivision of the suit land and obtained parcel No. EAST BUNYORE/EMAKUNDA/1286, and that the portion that was ultimately registered in his name was more than what he earlier claimed. This was fraudulent. I find that the trial court did not err when it found and held that the subdivision of the suit land to create parcel No.s EAST BUNYORE/EMAKUNDA/1285 AND 1286 was illegal and fraudulent
The second issue for determination is whether the trial court granted an order of eviction that was not sought in the plaint.
25. It was submitted on behalf of the appellant that in the plaint dated 19th September 2023, the Respondent did not seek an order of eviction. That it was an error for the trial court to grant the order of eviction. Counsel relied on the case of Independent Electoral & Boundaries Commission & Another vs Stephen Mutie Mule & 3 Others eKLR where the Court of Appeal held inter alia that parties are bound by their pleadings which in turn limits the issues upon which a trial court may pronounce itself. Counsel submitted further that eviction is a sweeping order which the court should not grant unless it is specifically pleaded and proved on trial.
26. On behalf of the Respondent, it was submitted that an order of eviction was a necessary consequential order flowing from the primary relief granted where the court ordered for cancellation of the title deed held by the appellant. Counsel submitted that a court has discretion to make orders that effectuate its final judgment. Counsel relied on the decisions in Christopher Ngeno vs Eunice Kurgat (2021) KEELC 2730 (KLR) and Jiveti vs Amutemi (KEELC) 631 (KLR) and Article 159 (2) (d) of the Constitution to support the submission
27. The essence of a pleading is to state case party's case precisely, thereby giving notice to the opposite party to respond adequately. In the present case, eviction was not pleaded or prayed for in the plaint but was granted in the judgment. The Respondent argues that the same was granted as a consequential relief flowing from the other relief granted. The trial court could not grant such relief that had not been sought.
The 3 rd issue for determination is whether the Respondent’s claim was statute-barred
28. In paragraph 11 of the Defence and counterclaim, the appellant had pleaded that the Respondent seemed to be challenging a decree that was issued and executed more than 12 years ago, thus violating the provisions of section 4 (4) of the Limitation of Actions Act, rendering her suit time-barred.
29. It was submitted herein on behalf of the appellant that the evidence before the Court showed that the subdivision and registration occurred around 2004. That the present suit was filed about 19 years later, in 2023. That the action is time-barred by the provisions of section 7 of the Limitation of Actions Act. That the trial Magistrate failed to address and consider this important statutory limitation and that this was a fatal error on the part of the trial Court.
30. On behalf of the Respondent, it was submitted that the cause of action arose upon discovery of the fraud and the irregular sub-division of the land by the appellant. That under Section 26 of the Land Registration Act, a certificate of title is prima facie evidence of ownership. That the Respondent believed in the validity of the title held by her husband before he died. Citing Section 26 of the Limitation of Actions Act, Counsel submitted that the Respondent and her deceased husband had no notice of the sub-division until the Respondent applied for an official search with the intention to undertake succession to the estate of her deceased husband, who died in the year 2020, that she discovered the illegal sub-division. That the appellant cannot therefore benefit from his wrongful action of sub-dividing the land without the consent of the owner. Counsel concluded that the Respondent’s claim was not time-barred.
31. Section 7 of the Limitation of Actions Act provides the limitation period for filing of actions for recovery of land as follows:
“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
32. It is not denied that the suit was filed about 19 years from the date the cause of action arose. The appellant's title deed for land parcel No. East Bunyore Emakunda/ 1286 is dated 12th May 2004. This was outside the limitation period. The cause of action accrued in the lifetime of the deceased, who died 16 years later in the year 2020. Part of the relief sought is recovery of the suit land and, particularly, parcel No. 1286, which is registered in the name of the appellant.
33. Section 26 of the Limitation of Actions Act provides for an extension of time where the cause of action is based on fraud or mistake and provides that time begins to run from the date the fraud or mistake is discovered. The date of discovery, being a crucial date for purposes of determining whether the suit is within time or not, must be pleaded. There is no date pleaded in the plaint as to when the fraud was discovered. The Respondent pleaded and testified that it was only recently that she discovered that sub-division of the suit land had taken place. No specific date was assigned to the “recently”. Counsel submitted that the discovery occurred when the Respondent conducted a search with a view to commencing succession proceedings to the estate of the deceased.
34. I find that no sufficient material was pleaded or proved to afford the Respondent the extension of time provided for in Section 26 of the Limitation of Actions Act.
35. Further, under section 4 (4) of the Limitation of Actions Act, an action may not be brought upon a judgment after the end of 12 years from the date on which the judgment was delivered.
36. There is a rationale for the law on limitation of actions. In the case of Gathoni –vs- Kenya Co-operative Creameries Ltd [1983] KLR 104 , the court observed that
“The law of limitation of actions is intended to protect defendants against unreasonable delay in bringing suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest.’’
Similarly, in Rawal –vs- Rawal [1990] KLR 275, the court held that:
“The object of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand and on the other hand protect a defendant after he had lost evidence for the defence from being disturbed after a long lapse of time.’’
37. Thus, one of the critical preliminary issues that a trial court must satisfy itself on is that the cause before it is brought within the limitation period. In the present case, though the Respondent had a good claim based on the tort of fraud, she ought to have brought it within the limitation period. Having examined the pleadings and evidence placed before the trial court, I find that the suit as filed was time-barred.
The last issue for determination is whether the trial court failed to evaluate the appellant's evidence and the history of the land and thereby arrived at a judgment that is against the weight of the evidence.
38. This issue is related to issue No. 1 determined hereinabove.
39. For the foregoing reasons, I find that the appeal has merit and I hereby allow it as follows:
i. The judgment of the trial court is set aside and substituted with an order that the suit, having been filed out of time, is hereby struck out.
ii. Each party shall bear its own costs of the appeal.
Orders accordingly.
Judgment dated and signed at Vihiga and delivered virtually this 17 th day of September 2026.
E. ASATI,
JUDGE.
In the presence of:
Sang- Court Assistant.
Andia for the Appellant
Malanda for the Respondent.
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