1. Proceedings commenced in this matter on 22nd September 2017 when Peter Mbati (Peter) and Francis Muchera Mbati (Francis) filed Plaint dated 15th September 2017, against Jimmy C. Kulecho (Jimmy) and the Land Registrar Kakamega.
2. The Plaintiffs averred in the Plaint that they were father and son, respectively, who both resided on land that was formerly known as parcel number S. Kabras/Lukume/743 which later gave rise to as parcel numbers S. Kabras/Lukume/1058 and 1059. That by an unwritten agreement made in 1989 or thereabouts, Peter sold and transferred a portion of parcel number S. Kabras/Lukume/743 to Jimmy and that upon demarcation, the portion sold became parcel number S. Kabras/Lukume/1059.
3. That by “deceit and larceny,” Jimmy obtained more land than agreed such that the mutation form indicated one acre while the green card two acres, yet what was on the ground was more than two acres. The Plaintiffs therefore prayed for judgment for a refund of one acre of land to themselves or its equivalent value which they quantified at KShs 500,000. They also sought costs and any other reliefs that the Court deems fit.
4. Jimmy entered appearance and filed his Statement of Defence dated 18th October 2017 in which he admitted the relationship between the Plaintiffs. He denied the allegations of deceit and larceny and averred that he lawfully purchased 2½ acres of land and obtained a title for the same without any fraud. That Peter fixed the boundary features of the portion he sold to him on his own even before survey was done. He averred that the suit was statutorily and urged the Court to dismiss it with costs.
5. The Plaintiffs withdrew the claim against the Land Registrar before commencement of trial.
6. At the trial, Peter testified as PW1 and adopted his statement dated 22nd September 2017 as his evidence-in-chief. He stated in the statement that he was the registered owner of parcel number S. Kabras/Lukume/743 and that he sold 0.4 hectares which was one acre of the said parcel to Jimmy in the year 1975 at a consideration of KShs 11,000 through an unwritten agreement. That what he signed in the mutation form was not what was in the green card.
7. Peter further stated that Jimmy leased another part of the parcel while he (Peter) was away for 19 years and that when he went back he found a boundary on it and reported the matter to the area Chief and District Officer but was not assisted. He added that his wife was opposed to the sale and even left the home because of it and that what he sold was not what was reflected in the title deed. That Jimmy obtained title deed and had been working on the land since 1993.
8. Peter produced copies of the following documents that he listed in Plaintiffs’ List of Documents dated 15th September 2017: Green Card in respect of Kakamega/Lukume/1059 (P.Exh 1), Mutation Form in respect of S/Kabras/Lukume/743 (P.Exh 2), Certificate of Official Search in respect of S/Kabras/Lukume/1059 as on 17th May 2017 (P.Exh 3), and Demand letter dated 8th September 2017 (P.Exh 4).
9. He denied that he entered into another agreement dated 24th December 1996 and went on to testify that under the agreement of 1975, the area sold was measured using foot strides and that no marks were placed on the ground to identify the area sold. That he went away after the transaction only to return and find that Jimmy had exceeded the area agreed upon.
10. Peter further testified that after the agreement of 1975, he allowed Jimmy to use some extra land, but he did not sell it to him. Undre re-examination, he stated that he did not how much land Jimmy was entitled to.
11. Francis testified next as PW2 and stated that Peter was his father. He adopted his witness statement dated 22nd September 2017. He stated therein that Peter sold a portion of land measuring one acre to Jimmy while he was still young and that as a result of the sale, his mother went away with him. That when he returned to build his home, he found that what Jimmy was occupying on the ground was not what his father had sold. He urged the Court to assist him since he and his brother had no place to live on.
12. Francis went on to testify that he was born in 1976 after the sale and that he was informed by the clan chairman that Jimmy had expanded the area that was sold to him. That at the time the clan chairman told him so, Peter had disappeared to Nandi County and was usually a drunkard. It was his evidence that he (PW2) only returned to the suit property in the year 2014 and that Peter had not returned by then.
13. David Masila Kimauro, the Deputy County Land Registrar Kakamega. testified as PW3. He stated that land parcel number Kakamega/Lukume/743 measured approximately 1.9 hectares which translated to approximately 4.69 acres. He produced a certified copy of the register of the said parcel (P.Exh 5) and stated that the parcel was closed on 23rd March 1981 upon sub-division into parcels numbers 1058 and 1059.
14. PW3 also produced certified copies of the register for parcel number Kakamega/Lukume/1058 (P.Exh 6) and mutation form in respect of Kakamega/Lukume/743 (P.Exh 7). He stated that according to the register for Kakamega/Lukume/1059, the said parcel measured approximately 0.83 hectares which is equivalent to approximately 2.05 acres. He added that according to the mutation form for parcel number Kakamega/Lukume/743, the resulting subdivision Kakamega/Lukume/1058 was to be 3.75 acres while Kakamega/Lukume/1059 was to be 1 acre.
15. PW3 further testified that there was a variation of 1.05 acres between the mutation form and the register for parcel Kakamega/Lukume/1059 and that the registered owner of the said parcel from 27th September 1993 to the date of his testimony was Jimmy. He also stated that Kakamega/Lukume/1058 which was registered in the name of Peter since 23rd June 2009 measured approximately 1.02 hectares which was equivalent to approximately 2.52 acres and that the mutation form for parcel number Kakamega/Lukume/743 indicated that both parties fixed the ground. He added that in this case, there was need for correction of sizes on the ground and not in the register.
16. Under cross examination and re-examination, he stated that the register for parcel number Kakamega/Lukume/743 indicated its size as equivalent to 4.6949 acres which was different from 4.75 acres stated in the mutation form. He further stated that parcel Kakamega/Lukume/1058 was closed on 23rd June 2009 upon subdivision into parcels 2039 and 2040. That on 1st October 2010, parcel 2039 was subdivided into parcels 2358 and 2359. On the other hand, parcel Kakamega/Lukume/1059 remained intact and had not been subdivided as of the date of his testimony.
17. The Plaintiffs’ case was then closed.
18. Jimmy testified next as the sole defence witness and adopted his witness statement dated 3rd November 2021 as his evidence-in-chief. He stated in the statement that he purchased 0.83 hectares of parcel number Kakamega/Lukume/743 in 1975 through an unwritten agreement and that the parcel was subdivided into two portions and his parcel measuring 0.83 hectares transferred to him.
19. Jimmy also stated that in 1996, the Plaintiff sold him an additional portion of land measuring a quarter of an acre through a written agreement. He added that he had not processed a title in respect of the quarter of an acre portion. That upon the sale of the extra portion to him, the two of them established an access road between their parcels and he (Jimmy) planted eucalyptus trees along his boundary which Francis cut down upon filing this case. He also stated that he had been using his portion of the land from 1975 to the date of his statement and had peacefully coexisted with the Plaintiffs prior to the filing of this case.
20. Jimmy further stated that he brought a surveyor to survey the land which Peter himself had demarcated to him and denied giving himself more land than what Peter sold to him. He produced copies of the following documents listed in his list of documents dated 20th January 2021: agreement dated 24th December 1996 (D.Exh1) and a bundle of photographs (D.Exh2).
21. Under cross-examination and re-examination, Jimmy stated that he purchased land from Peter twice: in 1975 through an unwritten agreement and in 1990s through a written agreement. He added that Peter showed him the boundary of the land which he purchased.
22. The defence case was then closed. Thereafter, directions were given for filing and exchange of written submissions.
23. The Plaintiffs filed submissions dated 8th May 2023. They submitted that they had proved their case that the agreement for sale of land was only for 1 acre and not 2 acres as asserted by Jimmy. The Plaintiffs referred to “Land Alienation Act No. 68 of 1981.” I note that there is no such statute in Kenya.
24. The Plaintiffs contended that Land Alienation Act No. 68 of 1981 provided that an agreement for purchase of land cannot be verbal but must be in writing or be evidenced by writing and that Jimmy could not assert that he acquired more land, yet he was not clear when he entered into the second agreement.
25. The Plaintiffs contended that they had established that Jimmy only purchased 1 acre and that he obtained the extra acre fraudulently. They further submitted that their claim was based on fraud and that consequently, Jimmy’s contention that the claim was statute barred could not hold. They therefore urged the Court to find in their favour and to award them costs.
26. Sometime after the closure of the defence case and the filing of Plaintiffs’ submissions, the Court was informed that Jimmy passed away on 16th May 2023. The case against him abated for want of substitution within the required period.
27. As fate would have it, Peter also passed away on 31st August 2024.
28. Jimmy’s abated suit was later reinstated. Further, Peter was substituted with Francis while Jimmy was substituted with Elizabeth Nanzala Chimaleni.
29. Following Jimmy’s substitution with Elizabeth Nanzala Chimaleni, submissions dated 30th January 2026 were filed on behalf of Jimmy’s estate. It was submitted therein that it was incumbent upon the Plaintiffs to plead particulars of fraud and to prove them. That instead, the Plaintiffs merely raised allegations of fraud without pleading particulars of fraud or proving fraud to the required standard. Reliance was placed on the case of Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR.
30. It was further argued that Jimmy had been using the portion that he purchased, that the portion sold was measured through footsteps or pacing, that no surveyor was involved at the point of the transaction and that Peter put boundary marks for Jimmy. It was also contended that the Plaintiffs’ claim for a refund was statute barred since it was filed after expiry of the 12 years limitation period. The Court was therefore urged to dismiss the Plaintiffs’ case with costs.
31. I have carefully considered the pleadings, the evidence and the submissions. The issues that arise for determination are whether this Court has jurisdiction, whether the Plaintiffs established that Jimmy obtained more land than what was sold to him and whether the reliefs sought are available.
32. Jurisdiction is the entry point in any matter that a Court is called upon to determine and is the very lifeblood of any proceedings. Without it, the proceedings come to a certain end and the Court cannot take any further step. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR.
33. As the Supreme Court stated in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR:
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. ….
34. The Supreme Court restated the position in Kamande v Judicial Service Commission [2025] KESC 48 (KLR) thus:
The courts in this country have consistently affirmed in a long line of cases, like Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] KESC 8 (KLR) and the seminal pronouncement in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), that jurisdiction is the lifeblood of judicial authority; without it, a court acts in vain and the resultant decision is worthless, with no legal effect.
35. The question of jurisdiction arises in this matter in two contexts: whether the Court can entertain the suit in view of the acknowledged oral contract for sale of land and whether the Plaintiffs’ case is barred by the Limitation of Actions Act. I will deal with each aspect in turn.
36. In their submissions, the Plaintiffs referred to “Land Alienation Act No. 68 of 1981” which they contended provided that an agreement for purchase of land cannot be verbal but must be in writing or be evidenced by writing. As I noted earlier, there is no statute in Kenya known as Land Alienation Act No. 68 of 1981.
37. The closest one comes to provisions similar to what the Plaintiffs adverted to is Section 3 (3) of the Law of Contract Act which provides:
No suit shall be brought upon a contract for the disposition of an interest in land unless—
(a) the contract upon which the suit is founded—
(i) is in writing;
(ii) is signed by all the parties thereto; and
(b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party:
Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.
38. Peter testified that he sold a portion of parcel number S. Kabras/Lukume/743 to Jimmy in the year 1975 through an unwritten agreement. Jimmy also confirmed in his testimony that the transaction took place in 1975.
39. In view of the year of the oral agreement, it is important to note that pursuant to Section 7 of the Law of Contract Act, Section 3 (3) of the said Act does not apply to all unwritten contracts. The section provides:
The provisions of subsection (3) shall not apply to any agreement or contract made or entered into before the commencement of that subsection.
40. The Law of Contract Act was assented to on 25th November 1960 and commenced on 1st January 1961. As is common with all statutes, it went through amendments. The version of Section 3 (3) which I have reproduced above commenced on 1st June 2003, after the unwritten agreement herein was entered into.
41. The Court of Appeal discussed the history of Section 3 (3) of the Law of Contract Act and its implications in Gladys Wanjiru Ngacha v Treresa Chepsaat & 4 others [2013] KECA 29 (KLR) as follows:
Prior to the current amendment of Section 3(3) of the Law of Contract Act the subsection read as follows:
“(3) No suit shall be brought upon a contract for disposition of an interest in land unless the agreement upon which, the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorized by him to sign it;
Provided that such a suit shall not be prevented by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of a contract-
(1) has in part performance of the contract taken possession of the property or any part thereof; or
(11) being already in possession, continues in possession in part performance of the contract and has done some other act in furtherance of the contract.”
Notwithstanding the fact that the sale agreement was not in writing, the appellant has to prove that she comes within the proviso to Section 3 (7) of the Act. This is done by adducing evidence that she either took possession of the suit property in part performance of the said oral contract, or that being already in possession of the suit property; she continued in possession in part performance of the oral contract.
42. Jimmy testified that he used the portion that he purchased right from 1975. In other words, he was in possession from the onset and remained in possession as of the date of the filing of the suit. In those circumstances, even though the agreement was unwritten, the suit is properly before the Court. The Court has jurisdiction to hear and determine this suit despite being founded on an unwritten contract for sale of land.
43. The other aspect of the jurisdiction is whether the Plaintiffs’ case is barred by the Limitation of Actions Act. Jimmy pleaded at paragraph 8 of his defence that this suit is statutorily barred. In his submissions, he contended that the Plaintiffs’ claim for a refund is statute barred since it was filed after expiry of the 12 years limitation period.
44. The Plaintiffs’ claim is one for recovery of one acre of land or KShs 500,000 which they contend is the value of the one acre. It is thus both a claim recovery of land and recovery of money, all based on a contract entered into in 1975.
45. The claim for recovery of money is affected by Section 4 (1) (a) of the Limitation of Actions Act which provides as follows:
The following actions may not be brought after the end of six years from the date on which the cause of action accrued—
(a) actions founded on contract ...
46. Regarding the aspect of recovery of land, Section 7 of the Limitation of Actions Act provides:
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.
47. The rationale behind statutes of limitation was restated by the Court of Appeal in The German School Society & another v Ohany & another [2023] KECA 894 (KLR) thus:
The statutes of limitations are enacted as a matter of public policy to fix a limit within which an action must be brought, or the obligation is presumed to have been paid, and is intended to run against those who are neglectful of their rights, and who fail to use reasonable and proper diligence in the enforcement thereof. The underlying purpose of statutes of limitation is to prevent the unexpected enforcement of stale claims concerning which persons interested have been thrown off their guard by want of prosecution.
48. Once a claim is barred on account of limitation, the Court cannot entertain such a suit. The Court of Appeal emphasised as much in Divecon v Samani (1995 – 1998) I EA 48 where it stated:
No one shall have the right or power to bring after the end of six years from the date on which a cause of action accrued, an action founded on contract. The corollary to this is that no court may or shall have the right or power to entertain what cannot be done namely, an action that is brought in contract six years after the cause of action arose or any application to extend such time for the bringing of the action. A perusal of Part III shows that its provisions do not apply to actions based on contract.
49. Time for purposes of both Section 4 (1) (a) and 7 of the Limitation of Actions Act is calculated from the date on which the cause of action accrued. The word “accrue” is defined in Black’s Law Dictionary (10th Edition) to mean “to come into existence as an enforceable claim or right.”
50. Peter stated in his testimony that after the sale agreement in 1975, he went away and returned 19 years later to find that Jimmy had more land than what they had agreed on. Based on the timelines that he gave, his return was around 1994.
51. At this stage, I have not determined whether indeed Jimmy acquired more land than had been agreed. I am simply guided by the Plaintiffs’ claim as pleaded. In the event that I find that the claim is not barred by the Limitation of Actions Act and that I have jurisdiction, I will proceed to determine the veracity of the pleaded case.
52. A perusal of the register in respect of parcel number Kakamega/Lukume/1059 and even the testimony of the Land Registrar both confirm that Jimmy became the registered owner of the said parcel on 27th September 1993. Peter’s right to recover any extra land accrued from the date of registration on 27th September 1993.
53. I therefore calculate the 6 and 12 year limitation periods under Sections 4 (1) (a) and 7 of the Limitation of Actions Act from 27th September 1993. Thus, the claim for recovery of the sum of KShs 500,000 ought to have been filed by 27th September 1999 while the claim for recovery of land ought to have been filed by 27th September 2005.
54. This suit was filed on 22nd September 2017, way beyond the two cut off dates of 27th September 1999 and 27th September 2005. I therefore find and hold that the claim for recovery of money and the claim for recovery of land are barred by Section 4 (1) (a) and Section 7, respectively, of the Limitation of Actions Act.
55. In the result, this Court lacks jurisdiction to hear and determine the Plaintiffs’ suit. I strike out the suit with costs to Jimmy’s estate.
Dated, signed, and delivered through Microsoft Teams, at Nyamira, this 25th day of February 2026.
Delivered in open court in the presence of:
Mr Ombito for the Plaintiffs
Mr Orute holding brief for Mr Manyoni for the Defendant
Court Assistant: B Kerubo