(Being an Appeal arising from the Judgement and decree of Hon. Cheruto C. Kipkorir, Principal Magistrate , on 10th July 2024 in Kerugoya CMC E & L Case No. E135 of 2021)
A. INTRODUCTION
1. This appeal challenges the Judgement rendered by Hon. Cheruto C. Kipkorir, Principal Magistrate , on 10 th July 2024 in Kerugoya CMC E & L Case No. E135 of 2021. The Appellant was the 2 nd defendant in the plaint dated 7 th September 2021 and a plaintiff in his counterclaim dated 30 th September 2021. The 1 st , 2 nd and 3 rd respondents were the plaintiffs in the lower court proceedings whereas the 4 th respondent was the 1st defendant.
2. The key questions that fell for determination in the suit were;
1) Whether the respondents’ and the appellant's suits are statute-barred;
2) Whether the 4 th respondent acquired a good title to the suit land;
3) Whether the appellant acquired the suit land fraudulently;
4) Whether the appellant was an innocent purchaser for value
5) What reliefs are available for the court to grant.
3. These are also the key questions that fall for determination in this appeal. Before I analyse and dispose of the issues, I will outline, in brief, the background to the appeal, the grounds of appeal, and parties’ respective submissions in the appeal.
B. BACKGROUND
4. Through a plaint dated 7 th September 2021 , the respondents instituted Kerugoya PMC E&L Case No. E135 of 2021 against the appellant, seeking:
1) A declaration that the 4 th respondent as the registered owner of land parcel no. Mutira/Kanyei/1138 on 23 rd December 2008 and the subsequent registration of the said land parcel into the joint names of the appellants on 13 th October 2017 was fraudulent, improper, unlawful null and void ab initio;
2) An order for the cancellation of registration of the appellants as the owners of land parcel no. Mutira/Kanyei/1138 that was done on 13 th October 2017 and the registration of Fredrick Karithi Kangangi as the owner of the said land parcel that was done on 23 rd December 2008 and the same to revert to the name of Monica Muthoni Kangangi so that the current beneficiaries of the same are registered;
3) Costs of the suit and;
4) Any other or further relief that this honourable court deems fit to grant.
5. The case of the 1 st to 3 rd respondents was that at all material time, they were sons of the 4 th respondent . The three respondents contended that parcel no. Mutira/Kanyei/1138 was registered in the joint names of the appellant and the 4 th respondent since 13 th October 2017. They further contended that parcel no. Mutira/Kanyei/1138 belonged to Monica Muthoni Kangangi, who was their grandmother.
6. The three respondents averred that on the 8 th July 1999 , their grandmother obtained consent to transfer the suit parcel to the 4 th respondent jointly with them. It was their case that the 4 th respondent fraudulently registered the suit land in his sole name on 23 rd December 2008 and left out their names from the register.
7. The 1 st to 3 rd respondents itemized particulars of fraud by the appellant and the 4 th respondent. They stated that the registration of their father as the owner of parcel no. Mutira/Kanyei/1138 on 23 rd December 2008 was improper, illegal and fraudulent and their father did not have a good title to pass to the appellant and thus their joint registration was illegal, null and void.
8. The 1 st to 3 rd respondents further averred that they were not aware of the registration until 2021, when the 1 st respondent brought construction materials onto the suit land, and a report was made by the appellant at Kerugoya Police Station of malicious destruction of property. They added that they investigated the registration at the Lands office and found out that the suit land is registered in the names of the appellant and the 4 th respondent jointly and in equal shares. It is their case that the 1 st respondent has been unable to construct on the suit land since the appellant is using the police to frustrate him.
9. The 4 th respondent filed a statement of defence and counterclaim dated 30 th September 2022 in which he contested the 1 st to 3 rd respondents’ claim.
10. The 4 th respondent contended that at no time did he cause the suit land to be registered jointly with the appellant. He contended that the appellant fraudulently, illegally, and unprocedurally caused the suit land to be registered in their joint names on 13 th October 2017. The 4 th respondent itemized particulars of fraud against the appellant.
11. In his counterclaim, he contended that he has never had a title to the suit land since the land was registered in the name of his mother, Monica Muthoni Kangangi. The 4 th respondent averred further that his mother had never transferred the suit land to him and that it was the appellant who caused him to be registered jointly through fraud. He itemized particulars of fraud against the appellant.
12. The appellant filed his defence and counterclaim dated 30 th September 2021 wherein he denied the respondents' claim. The case of the appellant was that he bought a half share of parcel Mutira/Kanyei/1138 from the 4 th respondent and they became joint-registered proprietors with equal shares and were issued a joint title deed. He contended that the 4 th respondent undertook to subdivide the land for him but never kept his promise. The appellant further contended that he is an innocent purchaser for value without notice. The appellant added that the 4 th respondent took him to the Land Control Board for consent and subsequently was issued a title deed on 13 th October 2017.
13. The appellant added that he holds an indefeasible title, having conducted all the necessary due diligence before buying the land and he confirmed that the land belonged to the 4 th respondent . He stated that he has been cultivating bananas, maize and other crops and it is therefore false that the 4 th respondent discovered that the land is jointly registered in their names. The appellant further stated that the respondents were not vigilant. It is his case that if the respondents were granted the prayers sought, he would lose his share of the land.
14. In his counter claim, he sought;
1) that the Land Registrar to register him and the 4 th respondents as tenants in common(in equal shares of title number Mutira/Kanyei/1138;
2) That the Executive Officer of the court be authorized to sign all the necessary documents to facilitate the subdivision and/or partition of title number Mutira/Kanyei/1138 into 2 equal portions which shall be registered in their names respectively;
3) That the land registrar be ordered to dispense with the production of title deed to L.R Mutira/Kanyei/1138, defendant’s passport photos, KRA Pin and National identity card;
4) The OCS Kerugoya police station be ordered to provide security during subdivision and/or partition of title number Mutira/Kanyei/1138 into 2 equal shares and;
5) He be awarded costs of the suit and costs of the counterclaim.
15. Upon receiving evidence and submissions, the trial court reached a finding that the respondents had proved their case and consequently, granted the reliefs sought in their pleadings, whilst dismissing the appellant’s counterclaim with no orders as to costs.
C. APPEAL
16. Aggrieved by the findings and decree of the trial court, the appellant brought this appeal, advancing the following eight (8) grounds ;
1) That, the learned Magistrate erred in law and in fact in delivering judgement against the weight of evidence adduced by the Appellant and the other parties and more so the evidence of the Land Registrar Kirinyaga.
2) That the Learned Magistrate erred in law and in fact by reverting back land parcel Mutira/ Kanyei/1138 in the name of the deceased Monica Muthoni Kangangi while the Respondents had no locus standi to sue on behalf of the estate of Monica Muthoni Kangangi as they had not taken out letters of administration ad litem.
3) That the Learned Magistrate erred in holding that the 4th respondent did not acquire a good title to land parcel Mutira/Kanyei/1138 while no evidence was adduced to this effect as Monica Muthoni Kangangi never challenged the registration of the 4th respondent as owner of the suit land during her lifetime as she passed on 11 years later after the land was transferred from her name to the name of the 1 st defendant.
4) That the Learned Magistrate erred in law and in fact by not realizing that the 4th respondent and the plaintiffs who are father and sons were conspiring to ensure the 2 nd defendants did not get his land.
5) That the Learned Magistrate erred in law and in fact by not making a finding ha he plaintiff’s claim was time barred.
6) That the Learned Magistrate erred in law and in fact by not recognizing that the 2 nd defendant has been utilizing the suit land since 2008 and nobody laid a claim for all those years.
7) That the Learned Magistrate erred in law and in fact by dismissing the Appellant’s counterclaim and ordering cancellation of registration of the name of the 2 nd defendant as owner of the land whereas the alleged fraud was not proved.
8) That the Learned Magistrate erred in law and in fact by making a finding that the 2 nd defendant did not prove his claim on the land whereas the 4th respondent did not produce any evidence to prove he is not the one who signed the transfer form that was registered at the lands office to cause the name of the 2 nd defendant to be registered in the register of the suit land.
17. The appellant urged this court to allow the appeal and set aside the impugned Judgement in its entirety and allow his counterclaim with costs of the appeal to be provided for.
D. APPELLANT’S SUBMISSIONS
18. The appellant filed written submissions dated 1 st April 2026 through M/s Wanjiru Waweru Advocates. They submitted on eight grounds.
19. The appellant submitted on grounds 1, 3 and 7 together that, according to the land registrar, the transfer documents in respect to the suit land were missing from the parcel file. He further submitted that although the transfer documents were missing, they must have been documents that supported the transfer.
20. According to counsel, the land registrar had made it clear that the absence of the transfer documents in the parcel file, did not mean there was fraud, and that the old title deed must have been surrendered when the land was transferred. Counsel added that the land registrar was not sued in the matter as a defendant.
21. Counsel contended that if indeed there was fraud in effecting the transfer, the respondents did not produce the title deed in the name of Monica Kangangi. Counsel argued that from the green card, parcel Mutira/Kanyei/1138 was transferred to Fredrick Kariithi Kangangi by his mother in 2008, which was 10 years before her demise, and she never challenged the transfer. Counsel added that the respondents failed to establish why they never executed the transfer from Monica Muthoni Kangangi to their names since 1999
22. On the 2 nd ground, counsel submitted that the respondents never took out a grant of letters of administration to sue on behalf of the estate of Monica Muthoni and therefore, they have no locus standi to sue on behalf of the estate of Monica Muthoni Kangangi. Counsel relied on the pronouncement of Hawo Shanko vs Mohammed Cita Shanko (2018) eKLR.
23. On whether fraud was proved, counsel submitted that the 4 th respondent alleged that the transfer documents were forged, but he failed to produce any proof of fraud. Counsel further submitted that he faulted the court's decision to revert the land to the estate of Monica Muthoni Kangangi. Counsel relied on the case of Barclays Bank International Ltd and Another (1979) KLR .
24. On ground 4, Counsel submitted that the 1 st to 3 rd respondents are related to the 4 th respondent and thus they colluded to deprive the appellant of his share of the land.
25. On whether the suit was statute-barred , counsel submitted that the 1 st to 3 rd respondents alleged that in 1999 their grandmother went to the Land Control Board and transferred the suit parcel to their joint names together with the 4 th respondent who is their father. That Monica Muthoni died in 2018, 19 years after, yet no explanation was given why they never followed up on the issue of transfer for all the years their grandmother was still alive
26. Counsel added that the register of parcel Mweru/Kanyei/1138 indicates that Monica Muthoni transferred the land to the 4 th respondent on 23 rd December 2008, while the suit in the trial court was filed on 16 th September 2019, 13 years after the transfer was done. Counsel relied on the case of Virginia Kairigo Runji vs Christopher Nthia Gacuthe & 17 Others (2020) eKLR
E. RESPONDENTS’ SUBMISSIONS
27. The respondents opposed the appeal through written submissions dated 13 th May 2026 , filed by M/s Muthoni Ndeke & Company Advocates. Counsel for the respondents identified the following six issues for determination:
1) Whether the respondents’ suit before the trial court was statute barred;
2) Whether the respondents had locus standi to institute the suit and seek cancellation of the impugned registrations;
3) Whether the learned trial magistrate properly found that the registration of the suit property in the name of the 4th respondent and subsequently in the joint names of the 4th respondent and the appellant was improper, unlawful and unprocedural;
4) Whether the appellant proved that he was an innocent purchaser for value without notice and entitled to protection under the law;
5) Whether the learned trial magistrate properly dismissed the appellant’s counterclaim
6) Whether the appeal has any merit warranting interference with the findings and judgement of the trial court.
28. On whether the respondents’ suit was statute-barred , counsel submitted that the trial court properly addressed the issue that the suit was not statute-barred. Counsel argued that the respondent's claim was anchored on fraud in the transfer of the suit parcel. Counsel added that the respondents discovered the impugned registrations in 2021 when the 1 st respondent sought to construct on the suit property. Counsel relied on section 26 (a) and (c) of Limitations of Actions Act.
29. On whether the respondents lacked locus standi to institute the suit, counsel submitted that the respondents did not institute the suit as administrators of the estate of Monica Muthoni Kangangi. Counsel further submitted that the respondents sued as beneficiaries of the estate and had an identifiable interest in the suit parcel and were properly before the court.
30. On whether the trial court decision was proper , Counsel argued that the trial court properly analyzed the evidence on record and correctly held that the impugned transfers could not pass a good title to either the 4 th respondent or the appellant. Counsel relied on Section 24(a) and 26 of the Land Registration Act. Counsel argued that the trial court properly relied on the case of Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others (2016) eKLR, Munyu Maina v Hiram Gathiha Maina Civil Appeal No.239 of 2009 and Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others (2015) eKLR.
31. On whether the appellant proved that he was an innocent purchaser for value without notice, counsel argued that the appellant failed to prove the elements of an innocent purchaser for value to be able to benefit from the doctrine. Counsel argued that the appellant ought to have demonstrated that, he acquired the property legally, in good faith, for valuable consideration and without notice of any defect in title. According to counsel, the appellant failed to satisfy these requirements
32. Counsel further submitted that, there was no written agreement demonstrating the sale, there was no proof of payment and that the appellant alleged that the suit parcel was a gift and at the same time, he had purchased the land, which was contradictory and unreliable. Counsel observed that the appellant admitted to be in possession of the original title deed and personally participated in the registration process. Thus, he cannot aver that he was unaware of the glaring irregularities surrounding the use of the lost identity card belonging to the 4 th respondent . By extension to this, the appellant cannot claim innocence while relying on a transaction that has numerous and conspicuous procedural pitfalls
33. On whether the trial court properly dismissed the counterclaim, counsel submitted that once the court found that the registration was unlawful, the counterclaim failed. Counsel further submitted that the counterclaim was not supported by evidence, thus the trial court rightly dismissed the same.
F. ANALYSIS AND DETERMINATION
34. I have read and considered the original record of the trial court, the record filed in this appeal, the grounds of appeal and the parties’ respective submissions.
35. The five key issues falling for determination in my view, are;
1) Whether the respondents and the appellant’s suit are statute-barred;
2) Whether the 4 th respondent acquired a good title;
3) Whether the respondents proved fraud in acquisition of the suit parcel;
4) Whether the appellant is an innocent purchaser for value;
5) What orders should be made regarding costs.
36. Before I analyse and dispose of the issues, I will briefly outline the principle that guides this court when exercising appellate jurisdiction.
37. The task of a first appellate court was summarized by the Court of Appeal in the case of Susan Munyi v Keshar Shiani (2013) eKLR where the court held as follows:
“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”
38. The principle was similarly outlined in Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows:
“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”
39. With this background, I shall sequentially discuss each of the issues as herein below; -
1) On Whether Or Not, Both Suits For The Appellant And The Respondents Are Statute-Barred ; -
40. On this issue, I note from the record that the respondent’s claim is for the recovery of land, where they pleaded, they had discovered fraud in 2021. In the same breadth, the appellant testified that he did not know, the 4 th respondent wanted to sever the tenancy in common until he sent him the letter in 2021.
41. Section 26 of the Limitation of Actions Act provides as follows;
‘’Where, in the case of an action for which a period of limitation is prescribed, either— (a) the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or (b) the right of action is concealed by the fraud of any such person as aforesaid; or (c) the action is for relief from the consequences of a mistake, The period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it:’’ . (Emphasis, own.)
42. An assessment of the evidence proffered confirm that both causes of action arose in 2021. That observed, and weighing the provisions of Section 26 of the Limitation of Action Act , I am persuaded to find that the two claims, by both parties are not statute barred.
2) On Whether or Not, The 4 th Respondent Acquired A Good Title;-
43. The 4 th respondent , pleaded that at no time did he cause the suit land to be registered jointly with the appellant, and that it was the appellant who fraudulently caused the suit land to be registered in their joint names on 13 th October 2017.
44. The 4 th Respondent , in his testimony averred that he neither sold nor transferred the suit parcel to the appellant and that the transfer documents and sale agreement relied upon by the appellant in these proceedings were all forged. Infact, he confirmed that he saw these documents the very first time on 27.8.2021 when they were served upon him.
45. The 4 th respondent further averred that at no point did he ever receive a title to the suit land. It was his testimony that the identity card number minuted on the green card as having been used to effect the transfer got lost in 2017, same year, the disputed transfer to their joint names occurred.
46. Most importantly, the 4 th respondent contended that he never went to the Land Control Board with the appellant for any Land control board consent and that though the green card showed there had been a transfer of the suit property to his name, the position is not true.
47. From his testimony, the 4 th respondent denied knowledge of transfer of the suit property to him. His position was, that the suit parcel never changed ownership from his mother, Monica Muthoni. Any allegations of any transfer allegedly from him to the appellant was denied.
48. With similar keen, I have evaluated the testimony of the land registrar, who testified as DW2 . This particular witness confirmed that the parcel file concerning the suit land could not be traced, thus he could not confirm the transactions appearing on the green card.
49. The witness was categorical that had there been a transfer of the suit parcel from Monica Muthoni to the appellant , then the old title deed should have been surrendered, by attaching it to the transfer documents. However, that can not be verified because no documents exist at the land registry pertaining to the sale, transfer or execution pertaining to the suit parcel. Infact. It was his testimony that the documents of all transactions falling between the year, 2008 to 2017 were missing.
50. For the appellant, he alleged the transfer of the title to both his name and the 4 th respondent was done on 13 th October 2017 though the year, from the transfer form was not legible
51. The appellant stated that him and the 4 th respondent went to the Land Control Board for consent but he could not recall when that was done. The appellant confirmed, that from the green card it is indicated that he was given the land as a gift, which was in tandem with the intentions of the 4 th respondent’s mother.
52. Based on these testimonies, it is obvious therefore that; -
a) The sale of the suit parcel from the 4 th respondent to the appellant cannot be verified, if at all.
b) Evidence conflicts on whether or not the appellant was gifted the property or bought the same from the 4 th respondent
c) The transfer forms transferring the suit parcel from Monica to both the appellant and 4 th respondent cannot be verified.
d) The alleged identity card of the 4 th respondent used in the alleged transfer of the suit parcel was contested. The 4 th respondent claimed that the same was lost, the same year, of the alleged transfer
e) The year of the alleged transfer cannot be verified as the appellant confirms it was not legible on the existing transfer forms
f) The existing sale agreement executed between the appellant and the 4 th respondent is denied and/or disputed
g) The land registry cannot confirm the transactions that were said to have occurred between 2008 and 2017 pertaining to the suit parcel because all documents contained in the parcel file cannot be traced
h) The alleged green card confirms that suit parcel was gifted to the appellant and not purchased.
53. Similarly, the above considered, it is apparent that any alleged sale, execution of a transfer, and any transaction that might have occurred between the years 2008 to 2017 cannot be verified, by virtue of the missing records at the land’s office.
54. Further, the suit parcel, preceding 2008 , was in the names of Monica Muthoni. There being no evidence that the title was lawfully and regularly transferred to the 4 th respondent and/or the appellants or both, I find and conclude that no evidence exists that the 4 th respondent acquired a good title of the suit parcel capable of being transferred or sold to the appellant herein.
3) Was The Element of Fraud Proved Within the Threshold of Proof ; -
55. The standard of proof for fraud, is well settled in the case of Kinyanjui Kamau v George Kamau (2015 ), where the Court of Appeal outlined the law as follows:
“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & f) 742 wherein the court stated that: “…We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases” …“In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.”
56. In this dispute, what emerges as the case of the 1 st to 3 rd respondents was that the transfer of the suit parcel from their grandmother to their father and the appellant was fraudulent.
57. On his part, the 4 th Respondent contended that at no time did he cause the suit land to be registered jointly with him and the appellant, and alleged that the appellant fraudulently caused the same to be registered in their joint names, without his knowledge, consent and authority. In essence, the 4th respondent shifted the claim of fraud to the appellant and denied involvement of the same.
58. The appellant from his end, alleges to have bought a half share of parcel Mutira/Kanyei/1138 from the 4th respondent. However, no sale agreement was exhibited confirming this transaction. Similarly, no supporting documents were proffered that verified the transfer process alleged by the appellant was indeed, procedurally correct, lawful and regular.
59. Similarly, though the appellant avers, he caused the transfer of the suit parcel to the 4 th respondent , the green card shows that the suit land was transferred to the 4th respondent by his mother . This disconnect, coupled by lack of existing records at the Land’s office to confirm, clarify and/or verify the veracity of the transaction, as well as the testimonies of both the appellant, and the 4 th respondent who differ in principle, on how the transfer was effected from Monica Muthoni to their joint registration, without the 4 th respondent seemingly being in the know , proves that indeed, there was fraud in the registration of the title in the joint names of the protagonists, being the appellant and 4 th respondent.
60. This position is even made worse by the missing records and parcel file to support the alleged transactions that occurred between the year, 2008 and 2017 when the disputed transfers and registration of the joint title is said to have occurred.
61. The Supreme Court of Kenya in the landmark case of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021 (2023) KESC 30(KLR) reiterated the evidentiary burden, of the holder of an impeached title in proceedings where the claimant has discharged his burden of proof as follows:
“ As held by the Court of Appeal in Munyu Maina v Hiram Gathiha Maina Civil Appeal No. 239 of 2009 [2013] KLR, where the registered proprietor’s root of title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.”
62. In the same decision, the Supreme Court of Kenya rendered itself on the fate of the title of a purchaser who acquires an illegal or fraudulent title as follows:
“ Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 50 (6) limits the right as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser.
63. In Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR, the Court of Appeal outlined the following Principle:
“ It is our finding that as between West End and Arthi, no valid title passed and the one exhibited by Arthi before the trial court was an irredeemable fake. It follows that Arthi had no title to pass to subsequent purchasers, and therefore KMAH, Yamin and Gachoni cannot purport to have purchased the disputed land or portions thereof.”
64. Regrettably, the title which the 4th respondent purported to have passed to the appellant, if at all, (though he denied), was a fraudulent fake. It thus follows that the appellant, never received or had a good title in respect to the disputed suit par
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A. INTRODUCTION
1. This appeal challenges the Judgement rendered by Hon. Cheruto C. Kipkorir, Principal Magistrate , on 10 th July 2024 in Kerugoya CMC E & L Case No. E135 of 2021. The Appellant was the 2 nd defendant in the plaint dated 7 th September 2021 and a plaintiff in his counterclaim dated 30 th September 2021. The 1 st , 2 nd and 3 rd respondents were the plaintiffs in the lower court proceedings whereas the 4 th respondent was the 1st defendant.
2. The key questions that fell for determination in the suit were;
1) Whether the respondents’ and the appellant's suits are statute-barred;
2) Whether the 4 th respondent acquired a good title to the suit land;
3) Whether the appellant acquired the suit land fraudulently;
4) Whether the appellant was an innocent purchaser for value
5) What reliefs are available for the court to grant.
3. These are also the key questions that fall for determination in this appeal. Before I analyse and dispose of the issues, I will outline, in brief, the background to the appeal, the grounds of appeal, and parties’ respective submissions in the appeal.
B. BACKGROUND
4. Through a plaint dated 7 th September 2021 , the respondents instituted Kerugoya PMC E&L Case No. E135 of 2021 against the appellant, seeking:
1) A declaration that the 4 th respondent as the registered owner of land parcel no. Mutira/Kanyei/1138 on 23 rd December 2008 and the subsequent registration of the said land parcel into the joint names of the appellants on 13 th October 2017 was fraudulent, improper, unlawful null and void ab initio;
2) An order for the cancellation of registration of the appellants as the owners of land parcel no. Mutira/Kanyei/1138 that was done on 13 th October 2017 and the registration of Fredrick Karithi Kangangi as the owner of the said land parcel that was done on 23 rd December 2008 and the same to revert to the name of Monica Muthoni Kangangi so that the current beneficiaries of the same are registered;
3) Costs of the suit and;
4) Any other or further relief that this honourable court deems fit to grant.
5. The case of the 1 st to 3 rd respondents was that at all material time, they were sons of the 4 th respondent . The three respondents contended that parcel no. Mutira/Kanyei/1138 was registered in the joint names of the appellant and the 4 th respondent since 13 th October 2017. They further contended that parcel no. Mutira/Kanyei/1138 belonged to Monica Muthoni Kangangi, who was their grandmother.
6. The three respondents averred that on the 8 th July 1999 , their grandmother obtained consent to transfer the suit parcel to the 4 th respondent jointly with them. It was their case that the 4 th respondent fraudulently registered the suit land in his sole name on 23 rd December 2008 and left out their names from the register.
7. The 1 st to 3 rd respondents itemized particulars of fraud by the appellant and the 4 th respondent. They stated that the registration of their father as the owner of parcel no. Mutira/Kanyei/1138 on 23 rd December 2008 was improper, illegal and fraudulent and their father did not have a good title to pass to the appellant and thus their joint registration was illegal, null and void.
8. The 1 st to 3 rd respondents further averred that they were not aware of the registration until 2021, when the 1 st respondent brought construction materials onto the suit land, and a report was made by the appellant at Kerugoya Police Station of malicious destruction of property. They added that they investigated the registration at the Lands office and found out that the suit land is registered in the names of the appellant and the 4 th respondent jointly and in equal shares. It is their case that the 1 st respondent has been unable to construct on the suit land since the appellant is using the police to frustrate him.
9. The 4 th respondent filed a statement of defence and counterclaim dated 30 th September 2022 in which he contested the 1 st to 3 rd respondents’ claim.
10. The 4 th respondent contended that at no time did he cause the suit land to be registered jointly with the appellant. He contended that the appellant fraudulently, illegally, and unprocedurally caused the suit land to be registered in their joint names on 13 th October 2017. The 4 th respondent itemized particulars of fraud against the appellant.
11. In his counterclaim, he contended that he has never had a title to the suit land since the land was registered in the name of his mother, Monica Muthoni Kangangi. The 4 th respondent averred further that his mother had never transferred the suit land to him and that it was the appellant who caused him to be registered jointly through fraud. He itemized particulars of fraud against the appellant.
12. The appellant filed his defence and counterclaim dated 30 th September 2021 wherein he denied the respondents' claim. The case of the appellant was that he bought a half share of parcel Mutira/Kanyei/1138 from the 4 th respondent and they became joint-registered proprietors with equal shares and were issued a joint title deed. He contended that the 4 th respondent undertook to subdivide the land for him but never kept his promise. The appellant further contended that he is an innocent purchaser for value without notice. The appellant added that the 4 th respondent took him to the Land Control Board for consent and subsequently was issued a title deed on 13 th October 2017.
13. The appellant added that he holds an indefeasible title, having conducted all the necessary due diligence before buying the land and he confirmed that the land belonged to the 4 th respondent . He stated that he has been cultivating bananas, maize and other crops and it is therefore false that the 4 th respondent discovered that the land is jointly registered in their names. The appellant further stated that the respondents were not vigilant. It is his case that if the respondents were granted the prayers sought, he would lose his share of the land.
14. In his counter claim, he sought;
1) that the Land Registrar to register him and the 4 th respondents as tenants in common(in equal shares of title number Mutira/Kanyei/1138;
2) That the Executive Officer of the court be authorized to sign all the necessary documents to facilitate the subdivision and/or partition of title number Mutira/Kanyei/1138 into 2 equal portions which shall be registered in their names respectively;
3) That the land registrar be ordered to dispense with the production of title deed to L.R Mutira/Kanyei/1138, defendant’s passport photos, KRA Pin and National identity card;
4) The OCS Kerugoya police station be ordered to provide security during subdivision and/or partition of title number Mutira/Kanyei/1138 into 2 equal shares and;
5) He be awarded costs of the suit and costs of the counterclaim.
15. Upon receiving evidence and submissions, the trial court reached a finding that the respondents had proved their case and consequently, granted the reliefs sought in their pleadings, whilst dismissing the appellant’s counterclaim with no orders as to costs.
C. APPEAL
16. Aggrieved by the findings and decree of the trial court, the appellant brought this appeal, advancing the following eight (8) grounds ;
1) That, the learned Magistrate erred in law and in fact in delivering judgement against the weight of evidence adduced by the Appellant and the other parties and more so the evidence of the Land Registrar Kirinyaga.
2) That the Learned Magistrate erred in law and in fact by reverting back land parcel Mutira/ Kanyei/1138 in the name of the deceased Monica Muthoni Kangangi while the Respondents had no locus standi to sue on behalf of the estate of Monica Muthoni Kangangi as they had not taken out letters of administration ad litem.
3) That the Learned Magistrate erred in holding that the 4th respondent did not acquire a good title to land parcel Mutira/Kanyei/1138 while no evidence was adduced to this effect as Monica Muthoni Kangangi never challenged the registration of the 4th respondent as owner of the suit land during her lifetime as she passed on 11 years later after the land was transferred from her name to the name of the 1 st defendant.
4) That the Learned Magistrate erred in law and in fact by not realizing that the 4th respondent and the plaintiffs who are father and sons were conspiring to ensure the 2 nd defendants did not get his land.
5) That the Learned Magistrate erred in law and in fact by not making a finding ha he plaintiff’s claim was time barred.
6) That the Learned Magistrate erred in law and in fact by not recognizing that the 2 nd defendant has been utilizing the suit land since 2008 and nobody laid a claim for all those years.
7) That the Learned Magistrate erred in law and in fact by dismissing the Appellant’s counterclaim and ordering cancellation of registration of the name of the 2 nd defendant as owner of the land whereas the alleged fraud was not proved.
8) That the Learned Magistrate erred in law and in fact by making a finding that the 2 nd defendant did not prove his claim on the land whereas the 4th respondent did not produce any evidence to prove he is not the one who signed the transfer form that was registered at the lands office to cause the name of the 2 nd defendant to be registered in the register of the suit land.
17. The appellant urged this court to allow the appeal and set aside the impugned Judgement in its entirety and allow his counterclaim with costs of the appeal to be provided for.
D. APPELLANT’S SUBMISSIONS
18. The appellant filed written submissions dated 1 st April 2026 through M/s Wanjiru Waweru Advocates. They submitted on eight grounds.
19. The appellant submitted on grounds 1, 3 and 7 together that, according to the land registrar, the transfer documents in respect to the suit land were missing from the parcel file. He further submitted that although the transfer documents were missing, they must have been documents that supported the transfer.
20. According to counsel, the land registrar had made it clear that the absence of the transfer documents in the parcel file, did not mean there was fraud, and that the old title deed must have been surrendered when the land was transferred. Counsel added that the land registrar was not sued in the matter as a defendant.
21. Counsel contended that if indeed there was fraud in effecting the transfer, the respondents did not produce the title deed in the name of Monica Kangangi. Counsel argued that from the green card, parcel Mutira/Kanyei/1138 was transferred to Fredrick Kariithi Kangangi by his mother in 2008, which was 10 years before her demise, and she never challenged the transfer. Counsel added that the respondents failed to establish why they never executed the transfer from Monica Muthoni Kangangi to their names since 1999
22. On the 2 nd ground, counsel submitted that the respondents never took out a grant of letters of administration to sue on behalf of the estate of Monica Muthoni and therefore, they have no locus standi to sue on behalf of the estate of Monica Muthoni Kangangi. Counsel relied on the pronouncement of Hawo Shanko vs Mohammed Cita Shanko (2018) eKLR.
23. On whether fraud was proved, counsel submitted that the 4 th respondent alleged that the transfer documents were forged, but he failed to produce any proof of fraud. Counsel further submitted that he faulted the court's decision to revert the land to the estate of Monica Muthoni Kangangi. Counsel relied on the case of Barclays Bank International Ltd and Another (1979) KLR .
24. On ground 4, Counsel submitted that the 1 st to 3 rd respondents are related to the 4 th respondent and thus they colluded to deprive the appellant of his share of the land.
25. On whether the suit was statute-barred , counsel submitted that the 1 st to 3 rd respondents alleged that in 1999 their grandmother went to the Land Control Board and transferred the suit parcel to their joint names together with the 4 th respondent who is their father. That Monica Muthoni died in 2018, 19 years after, yet no explanation was given why they never followed up on the issue of transfer for all the years their grandmother was still alive
26. Counsel added that the register of parcel Mweru/Kanyei/1138 indicates that Monica Muthoni transferred the land to the 4 th respondent on 23 rd December 2008, while the suit in the trial court was filed on 16 th September 2019, 13 years after the transfer was done. Counsel relied on the case of Virginia Kairigo Runji vs Christopher Nthia Gacuthe & 17 Others (2020) eKLR
E. RESPONDENTS’ SUBMISSIONS
27. The respondents opposed the appeal through written submissions dated 13 th May 2026 , filed by M/s Muthoni Ndeke & Company Advocates. Counsel for the respondents identified the following six issues for determination:
1) Whether the respondents’ suit before the trial court was statute barred;
2) Whether the respondents had locus standi to institute the suit and seek cancellation of the impugned registrations;
3) Whether the learned trial magistrate properly found that the registration of the suit property in the name of the 4th respondent and subsequently in the joint names of the 4th respondent and the appellant was improper, unlawful and unprocedural;
4) Whether the appellant proved that he was an innocent purchaser for value without notice and entitled to protection under the law;
5) Whether the learned trial magistrate properly dismissed the appellant’s counterclaim
6) Whether the appeal has any merit warranting interference with the findings and judgement of the trial court.
28. On whether the respondents’ suit was statute-barred , counsel submitted that the trial court properly addressed the issue that the suit was not statute-barred. Counsel argued that the respondent's claim was anchored on fraud in the transfer of the suit parcel. Counsel added that the respondents discovered the impugned registrations in 2021 when the 1 st respondent sought to construct on the suit property. Counsel relied on section 26 (a) and (c) of Limitations of Actions Act.
29. On whether the respondents lacked locus standi to institute the suit, counsel submitted that the respondents did not institute the suit as administrators of the estate of Monica Muthoni Kangangi. Counsel further submitted that the respondents sued as beneficiaries of the estate and had an identifiable interest in the suit parcel and were properly before the court.
30. On whether the trial court decision was proper , Counsel argued that the trial court properly analyzed the evidence on record and correctly held that the impugned transfers could not pass a good title to either the 4 th respondent or the appellant. Counsel relied on Section 24(a) and 26 of the Land Registration Act. Counsel argued that the trial court properly relied on the case of Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others (2016) eKLR, Munyu Maina v Hiram Gathiha Maina Civil Appeal No.239 of 2009 and Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others (2015) eKLR.
31. On whether the appellant proved that he was an innocent purchaser for value without notice, counsel argued that the appellant failed to prove the elements of an innocent purchaser for value to be able to benefit from the doctrine. Counsel argued that the appellant ought to have demonstrated that, he acquired the property legally, in good faith, for valuable consideration and without notice of any defect in title. According to counsel, the appellant failed to satisfy these requirements
32. Counsel further submitted that, there was no written agreement demonstrating the sale, there was no proof of payment and that the appellant alleged that the suit parcel was a gift and at the same time, he had purchased the land, which was contradictory and unreliable. Counsel observed that the appellant admitted to be in possession of the original title deed and personally participated in the registration process. Thus, he cannot aver that he was unaware of the glaring irregularities surrounding the use of the lost identity card belonging to the 4 th respondent . By extension to this, the appellant cannot claim innocence while relying on a transaction that has numerous and conspicuous procedural pitfalls
33. On whether the trial court properly dismissed the counterclaim, counsel submitted that once the court found that the registration was unlawful, the counterclaim failed. Counsel further submitted that the counterclaim was not supported by evidence, thus the trial court rightly dismissed the same.
F. ANALYSIS AND DETERMINATION
34. I have read and considered the original record of the trial court, the record filed in this appeal, the grounds of appeal and the parties’ respective submissions.
35. The five key issues falling for determination in my view, are;
1) Whether the respondents and the appellant’s suit are statute-barred;
2) Whether the 4 th respondent acquired a good title;
3) Whether the respondents proved fraud in acquisition of the suit parcel;
4) Whether the appellant is an innocent purchaser for value;
5) What orders should be made regarding costs.
36. Before I analyse and dispose of the issues, I will briefly outline the principle that guides this court when exercising appellate jurisdiction.
37. The task of a first appellate court was summarized by the Court of Appeal in the case of Susan Munyi v Keshar Shiani (2013) eKLR where the court held as follows:
“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”
38. The principle was similarly outlined in Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows:
“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”
39. With this background, I shall sequentially discuss each of the issues as herein below; -
1) On Whether Or Not, Both Suits For The Appellant And The Respondents Are Statute-Barred ; -
40. On this issue, I note from the record that the respondent’s claim is for the recovery of land, where they pleaded, they had discovered fraud in 2021. In the same breadth, the appellant testified that he did not know, the 4 th respondent wanted to sever the tenancy in common until he sent him the letter in 2021.
41. Section 26 of the Limitation of Actions Act provides as follows;
‘’Where, in the case of an action for which a period of limitation is prescribed, either— (a) the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or (b) the right of action is concealed by the fraud of any such person as aforesaid; or (c) the action is for relief from the consequences of a mistake, The period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it:’’ . (Emphasis, own.)
42. An assessment of the evidence proffered confirm that both causes of action arose in 2021. That observed, and weighing the provisions of Section 26 of the Limitation of Action Act , I am persuaded to find that the two claims, by both parties are not statute barred.
2) On Whether or Not, The 4 th Respondent Acquired A Good Title;-
43. The 4 th respondent , pleaded that at no time did he cause the suit land to be registered jointly with the appellant, and that it was the appellant who fraudulently caused the suit land to be registered in their joint names on 13 th October 2017.
44. The 4 th Respondent , in his testimony averred that he neither sold nor transferred the suit parcel to the appellant and that the transfer documents and sale agreement relied upon by the appellant in these proceedings were all forged. Infact, he confirmed that he saw these documents the very first time on 27.8.2021 when they were served upon him.
45. The 4 th respondent further averred that at no point did he ever receive a title to the suit land. It was his testimony that the identity card number minuted on the green card as having been used to effect the transfer got lost in 2017, same year, the disputed transfer to their joint names occurred.
46. Most importantly, the 4 th respondent contended that he never went to the Land Control Board with the appellant for any Land control board consent and that though the green card showed there had been a transfer of the suit property to his name, the position is not true.
47. From his testimony, the 4 th respondent denied knowledge of transfer of the suit property to him. His position was, that the suit parcel never changed ownership from his mother, Monica Muthoni. Any allegations of any transfer allegedly from him to the appellant was denied.
48. With similar keen, I have evaluated the testimony of the land registrar, who testified as DW2 . This particular witness confirmed that the parcel file concerning the suit land could not be traced, thus he could not confirm the transactions appearing on the green card.
49. The witness was categorical that had there been a transfer of the suit parcel from Monica Muthoni to the appellant , then the old title deed should have been surrendered, by attaching it to the transfer documents. However, that can not be verified because no documents exist at the land registry pertaining to the sale, transfer or execution pertaining to the suit parcel. Infact. It was his testimony that the documents of all transactions falling between the year, 2008 to 2017 were missing.
50. For the appellant, he alleged the transfer of the title to both his name and the 4 th respondent was done on 13 th October 2017 though the year, from the transfer form was not legible
51. The appellant stated that him and the 4 th respondent went to the Land Control Board for consent but he could not recall when that was done. The appellant confirmed, that from the green card it is indicated that he was given the land as a gift, which was in tandem with the intentions of the 4 th respondent’s mother.
52. Based on these testimonies, it is obvious therefore that; -
a) The sale of the suit parcel from the 4 th respondent to the appellant cannot be verified, if at all.
b) Evidence conflicts on whether or not the appellant was gifted the property or bought the same from the 4 th respondent
c) The transfer forms transferring the suit parcel from Monica to both the appellant and 4 th respondent cannot be verified.
d) The alleged identity card of the 4 th respondent used in the alleged transfer of the suit parcel was contested. The 4 th respondent claimed that the same was lost, the same year, of the alleged transfer
e) The year of the alleged transfer cannot be verified as the appellant confirms it was not legible on the existing transfer forms
f) The existing sale agreement executed between the appellant and the 4 th respondent is denied and/or disputed
g) The land registry cannot confirm the transactions that were said to have occurred between 2008 and 2017 pertaining to the suit parcel because all documents contained in the parcel file cannot be traced
h) The alleged green card confirms that suit parcel was gifted to the appellant and not purchased.
53. Similarly, the above considered, it is apparent that any alleged sale, execution of a transfer, and any transaction that might have occurred between the years 2008 to 2017 cannot be verified, by virtue of the missing records at the land’s office.
54. Further, the suit parcel, preceding 2008 , was in the names of Monica Muthoni. There being no evidence that the title was lawfully and regularly transferred to the 4 th respondent and/or the appellants or both, I find and conclude that no evidence exists that the 4 th respondent acquired a good title of the suit parcel capable of being transferred or sold to the appellant herein.
3) Was The Element of Fraud Proved Within the Threshold of Proof ; -
55. The standard of proof for fraud, is well settled in the case of Kinyanjui Kamau v George Kamau (2015 ), where the Court of Appeal outlined the law as follows:
“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & f) 742 wherein the court stated that: “…We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases” …“In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.”
56. In this dispute, what emerges as the case of the 1 st to 3 rd respondents was that the transfer of the suit parcel from their grandmother to their father and the appellant was fraudulent.
57. On his part, the 4 th Respondent contended that at no time did he cause the suit land to be registered jointly with him and the appellant, and alleged that the appellant fraudulently caused the same to be registered in their joint names, without his knowledge, consent and authority. In essence, the 4th respondent shifted the claim of fraud to the appellant and denied involvement of the same.
58. The appellant from his end, alleges to have bought a half share of parcel Mutira/Kanyei/1138 from the 4th respondent. However, no sale agreement was exhibited confirming this transaction. Similarly, no supporting documents were proffered that verified the transfer process alleged by the appellant was indeed, procedurally correct, lawful and regular.
59. Similarly, though the appellant avers, he caused the transfer of the suit parcel to the 4 th respondent , the green card shows that the suit land was transferred to the 4th respondent by his mother . This disconnect, coupled by lack of existing records at the Land’s office to confirm, clarify and/or verify the veracity of the transaction, as well as the testimonies of both the appellant, and the 4 th respondent who differ in principle, on how the transfer was effected from Monica Muthoni to their joint registration, without the 4 th respondent seemingly being in the know , proves that indeed, there was fraud in the registration of the title in the joint names of the protagonists, being the appellant and 4 th respondent.
60. This position is even made worse by the missing records and parcel file to support the alleged transactions that occurred between the year, 2008 and 2017 when the disputed transfers and registration of the joint title is said to have occurred.
61. The Supreme Court of Kenya in the landmark case of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021 (2023) KESC 30(KLR) reiterated the evidentiary burden, of the holder of an impeached title in proceedings where the claimant has discharged his burden of proof as follows:
“ As held by the Court of Appeal in Munyu Maina v Hiram Gathiha Maina Civil Appeal No. 239 of 2009 [2013] KLR, where the registered proprietor’s root of title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.”
62. In the same decision, the Supreme Court of Kenya rendered itself on the fate of the title of a purchaser who acquires an illegal or fraudulent title as follows:
“ Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 50 (6) limits the right as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser.
63. In Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR, the Court of Appeal outlined the following Principle:
“ It is our finding that as between West End and Arthi, no valid title passed and the one exhibited by Arthi before the trial court was an irredeemable fake. It follows that Arthi had no title to pass to subsequent purchasers, and therefore KMAH, Yamin and Gachoni cannot purport to have purchased the disputed land or portions thereof.”
64. Regrettably, the title which the 4th respondent purported to have passed to the appellant, if at all, (though he denied), was a fraudulent fake. It thus follows that the appellant, never received or had a good title in respect to the disputed suit par
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