Introduction
1. Vide a further amended plaint dated 4th February 2020, the plaintiff sought against the defendants the following orders;
a. Payment of Kshs 30, 000, 000/=
b. Interest thereon at court rates from 10th February 2012 until payment in full.
c. Costs of the suit.
2. The plaintiff stated that he was the personal representative of the estate of Emmanuel Lutta Mumia who was at all material times the registered proprietor of land parcel No. L.R NO. South Wanga/Ekero/869 (suit property) That on 11th June 1987, a restriction was placed on the suit property restraining dealings thereon until the matter of compulsory acquisition is sorted out by the Chief valuer.
3. Further that the registered proprietor passed on while the restriction subsisted and that the plaintiff having obtained grant of letters of administration for the deceased’s estate, agreed with the Land Registrar Kakamega to remove the restriction on condition that a portion of the said land measuring 3.30 Hectares is transferred to the Government of Kenya. That the plaintiff agreed to the condition knowing that he will be compensated by the Government. That subsequently, parcel L.R NO. South Wanga/Ekero/869 was subdivided to create other parcels including parcel L.R NO. South Wanga/Ekero/2302, which was registered in the name of the Government of Kenya, but that the defendant failed to compensate the plaintiff as required. That he had the land valued and the valuation report showed that its open market value as of 27th May 2015 was Kshs. 30, 000, 000/=.
4. The suit was opposed. The 1st defendant filed amended defence dated 12th March 2020. He denied the plaintiff’s claim and stated that the plaintiff lacked the necessary locus standi to file this suit. He further averred that it has never utilized the suit property and hence not liable. That this suit is bad in law and contravenes the law on compulsory acquisition and should be struck out. That the plaintiff had not exhausted laid down procedures on compulsory acquisition hence the same is premature. That the suit contravened section 29 of the Land Acquisition Act as well as section 75 (2) of the repealed Constitution of Kenya hence the suit is irregular and defective. That the claim of Kshs. 30, 000, 000/= was arbitrary, unconscionable and exploitative and strict proof of the same was invited.
5. He also stated that parcel L.R NO. South Wanga/Ekero/869 was a subdivision of parcel L.R NO. South Wanga/Ekero/468, which had been owned by the late Lutta Mumia who was compensated way back in 1993.
6. The 2nd defendant filed defence dated 30th September 2021. It admitted that a restriction was placed on parcel L.R NO. South Wanga/Ekero/869 in 1987 but denied the averment that there was an agreement by the Land Registrar as alleged. That the Government compensated the original land owner and the restriction was to safeguard its interests. That the issue of failure to compensate does not arise. That upon subdivision and registration of the suit property in the name of the Government, the owner of the land had long been compensated. That the 2nd defendant took possession of the suit property more than 12 years back. That the valuation of the suit property is inconsequential as the same belongs to the Government.
7. The 3rd defendant filed a defence dated 8th February 2023. It denied the plaintiff’s claim and stated that the further amended plaint in paragraphs 8 and 9 contained a contradiction on the issue of compensation as the plaintiff confirmed payment and also denied payment. It argued that no cause of action was disclosed against the 3rd defendant and sought for the dismissal of the plaintiffs claim.
8. The matter was heard by way of viva voce evidence. The plaintiff presented two witnesses while the 1st and 2nd defendants presented one witness.
Plaintiff’s evidence
9. PW1 was Joseph Wanjala Lutta, the plaintiff in this case. He adopted his witness statement dated 30/10/2012 as his evidence in chief and produced the list of documents dated even date and further lists of documents dated 25/09/2018 and 3/12/2021. His testimony was that Emmanuel Lutta Mumia who was his father now deceased, owned parcel No. South Wanga/Ekero/869 and that he passed away on 11th October 1978. That on 11th June 1987, a restriction was placed on the said land restraining dealings until the matter of compulsory acquisition was sorted by the Chief valuer.
10. Further that he obtained grant of letters of administration in Succession cause No. 382 of 1999. That parcel No. 869 was to be registered in his name but there was a restriction and that the Land Registrar insisted that he will remove the restriction on condition that a portion measuring 3.30 hectares be transferred to the Government of Kenya. That he accepted the condition, subdivided the land and registered the suit property in the name of the Government. That on 10th February 2012, he engaged a valuer who valued parcel No. 2302 at Kshs. 5, 282, 000/=. He sought payment of the said amount. That the Government acquired part of the said parcel but his father was not compensated. That his father could not have been compensated in 1993 as he had already passed away.
11. On cross examination, he stated that parcel No. 869 was a subdivision of parcel No. 468. He denied transferring parcel No. 2302 to the Government of Kenya. That the said parcel is unoccupied and that his father never complained that he was not compensated. Further that since he was born, he has never used parcel No. 2302. That the same is reserved by Government for town expansion. That the Government became the registered owner thereof in 2002 and that he filed this suit on 7/11/2012.
12. He produced grant, certificate of confirmation, register for parcel Nos. 869 and 2302, search for parcel No. 2302, letters from the plaintiff to Commissioner of lands and notice to Attorney General, valuation report dated 10th February 2012, letter from Osundwa Advocate, letter to Provincial Planning Officer, Letter from NLC and a valuation report by Dunhill Africa Valuers.
13. PW2 was Isaac Lunalo Wiranda, a property valuer. He stated that he valued parcel No. South Wanga/Ekero/2302 on 27th May 2018. That the property is in Mumias Town. That the value thereof is Kshs. 30, 000, 000/=.
14. On cross examination, he stated that he did not see the green card of the property. That he did not obtain consent from the Commissioner of lands before valuation. That the said land is public land and he did not enquire how the Government became proprietor thereof. That the developments on the land were not included in the land. That marked the close of the plaintiff’s case.
Defendants’ case
15. DW1 was Ezekiel Buhuni Nandwa, a surveyor at Kakamega County Government. He testified that he had worked for 42 years and knew the late Emmanuel Lutta Mumia. That Emmanuel Lutta Mumia was compensated when the land in dispute was known as parcel No. 468. That Emmanuel Lutta Mumia is the same person as Lutta Mumia who was compensated.
16. He produced the list of persons who were compensated for several parcels acquired. That the area acquired was 8.68 acres and compensation paid is indicated on the list. That the Government acquired the land through compulsory acquisition between 1970 and 1973 and that the County Government holds the land in trust for the National Government. That the plaintiff is not entitled to compensation.
17. On cross examination, he stated that he had presented evidence of the land acquired in Mumias and the amount paid. That he participated in placing a restriction on the suit property. That the acquisition having been done in 1970 and 1973, as of 1987, the Government was to take its portion of the land. That a development plan for the area was not available and it was not clear what the Government wanted to do with the land. That marked the close of the defence case.
18. Parties filed their respective submissions. On record are the plaintiff’s submissions dated 4th August 2025 and the 2nd defendant’s submissions dated 22nd September 2025.
Plaintiff's submissions
19. Counsel for the plaintiff submitted that the Government of Kenya compulsorily acquired the suit property between 1970 and 1973, yet there was no evidence of Gazette Notices, inquiry reports and compensation awards or payment records produced to show that Emmanuel Lutta Mumia was compensated and that therefore the procedure of acquisition was unconstitutional and unprocedural. Reliance was placed on Article 40 of the Constitution of Kenya for the proposition that where land is compulsorily acquired, there ought to be prompt, full and just compensation. Counsel further cited section 75 of the repealed Constitution of Kenya and the repealed Land Acquisition Act and argued that compulsory acquisition could only occur for public purpose, authorized by law, where prompt and full compensation occurred and the land owner granted access to court. Further that there ought to have been a gazettement of intention to acquire, inquiry into compensation and issuance of award. Counsel argued that these conditions were not met.
20. Counsel referred to the letter of the District Land office of 15th February 1990 which stated that no proper record was found in his office that compensation was actually paid and that the deceased’s name did not appear in the list of compensated individuals.
21. Regarding economic loss, counsel relied on the valuation report dated 27th May 2015 and argued that the plaintiff was entitled to compensation in the sum of Kshs. 30, 000, 000/=. It was also contended for the plaintiff that the Government owed the plaintiff a legal duty to compensate. Reliance was placed on section 107 (5) (B) of the Land Act and counsel argued that the restriction was placed on the land 9 years after the death of Emmanuel Lutta Mumia.
22. On the defendants’ rebuttals, counsel submitted that while they stated that compensation was done, they failed to produce gazette Notice, award notice, payment records, consent or transfer forms signed by the deceased and land control board minutes. The court was referred to the case of Mandev Limited v Kenya National Highways Authority & Anotheer (Land Acquisition Case E023 OF 2024 [2025] KELAT 117, for the proposition that the only way the Government could deprive a registered owner of their land is through compulsory acquisition in conformity with the law.
23. Regarding the relief sought, counsel referred to the case of Attorney General v Zinj Limited and submitted that under Article 22 (1) of the constitution, one of the reliefs that may be granted is an order for compensation.
2nd Defendant’s submissions
24. Counsel for the 2nd defendant submitted that the condition for removal of restriction on the suit property was the transfer of 3.30 hectares to the Government with no other condition. Counsel argued that the plaintiff’s pleadings did not mention compulsory acquisition. Reliance was placed on the case of David Sironga Oletukal v Francis Arap Muge & 2 Others CA No. 76 of 2014 for the proposition that a court will not grant a remedy not sought. Counsel argued that matters of compulsory acquisition stated in the restriction were already dealt with. Counsel argued that no declaratory orders were sought in the further amended plaint and hence could not be raised in the submissions.
25. Counsel also argued that the 2nd defendant raised the question of limitation as the suit property was transferred in 2002 but the suit was filed in 2015 which is 13 years. Reliance was placed on section 4 of the Limitation of Actions Act for the argument that this suit was time barred.
Analysis and determination
26. The court has carefully considered the further amended plaint, defences, evidence and submissions. The issues that arise for the court’s determination are whether the plaintiff’s suit is time barred and whether the plaintiff has proved his claim on the required standard.
27. Section 7 of the Limitation of Actions Act bars a person from bringing a suit for claim of land after twelve years, and states that;
“An action may not be brought by any person to recover land after the end of 12 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.”
28. Therefore, a claim for land must be filed within 12 years.
29. The basis for limitation is to encourage vigilance on the part of the plaintiffs in prompt enforcement of their rights so as to ensure prompt and fair resolution of disputes. Besides, limitation laws protect a defendant from stale claims so that cases are filed when evidence and witness’ memories are still fresh, and to avoid prejudicing the defendant or making it difficult for him or her to build or defend a case due to factors like lost documentation or deteriorated evidence, dead or unavailable witnesses or their faded memories. When matters are filed within time, defendants are enabled to mount a fair defence, which assists the court to deliver substantive justice for the parties
30. In the case of Gathoni v Kenya Cooperative Creameries Ltd [1982] KLR 104, the court of Appeal stated as follows;
“…..the Law of Limitation of Actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest. Special provision is made for infants and for the mentally unsound. But rightly or wrongly, the Act does not help persons like the applicant who, whether through dilatoriness or ignorance, do not do what the informed citizen would reasonably have done.”
31. Similarly, in Mehta v Shah [1965] EA 321, the court stated as follows;
“The object of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand, protect a defendant after he has lost evidence for his defence from being disturbed after a long lapse of time. The effect of a limitation enactment is to remove remedies irrespective of the merits of the particular case.”
32. In a case like the instant suit where Government relies on its employees for evidence and those employees are obviously subject to retirement, resignation, dismissal or death, a party seeking a claim against Government ought to file their claim within the statutory period.
33. In the instant case, the plaintiff confirms that the suit property arose from subdivision of parcel No. 468. Both parties agree that part of that parcel measuring 3.3 ha was compulsorily acquired between 1970 – 1973 for purposes of expanding Mumias town. None of the parties produced a search or green card to show the ownership of parcel No. 468.
34. From 1973 to date, much has happened including change of legal, institutional and regulatory framework in regard to compulsory acquisition. The Commissioner of lands and local authorities have been replaced with the National Land Commission and County Governments respectively while there are other new institutions including the Land Acquisition Tribunal and the Environment and Land Court.
35. There has also been a change of the Constitution, repeal of the old land laws and enactment of new statutes including the Land Act. But most importantly, between 1970 when the acquisition was done to 2012 when this matter was filed, there is a period of 42 years. Many Government officers, who may have been involved in the compulsory acquisition process then, may likely be no longer working for Government.
36. Due to passage of time, there are possibilities of loss and misplacement of documents. This reality is demonstrated by the District officer’s letter produced in evidence stating that as of 1990, they did not have documents in regard to the compulsory acquisition herein. The process of compulsory acquisition in the 1970s was not like the process as currently provided in law.
37. The plaintiff concedes that the acquisition was in regard to the owner of parcel No. 468. While a list showing that 3.3 hectares of that parcel was acquired in 1973, none of the parties has produced documents to show who by then owned that parcel. The lapse of time in this matter, which the plaintiff has not explained is too inordinate. The plaintiff conceded that while his father Emmanuel Lutta was alive, he never raised a complaint against the compulsory acquisition. The plaintiff also confirmed that even since his birth he has never used the suit property, meaning that the suit property has been public land even before he was born. The registration of the same in 2002 was merely the confirmation of the compulsory acquisition done in 1973.
38. To sue the state 42 years after the act complained of, prejudices it, as there is a possibility that the necessary witnesses and documents may not be available due to passage of time, which would prejudice the integrity of the trial and public interest. No explanation was given why the late Emmanuel Mumia never sued Government and why there was a delay of over 40 years. In the premises, I find and hold that the plaintiff’s claim herein is a stale claim, the suit is therefore time barred and the same is hereby dismissed. I make no order as to costs.
39. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 28TH DAY OF JANUARY, 2026
In the presence of;
Ms Munihu for the 2nd defendant
Plaintiff in person
No appearance for the 1st and 3rd defendants
Court Assistant: Delphine