Makilya & another v Simeon & another (Environment and Land Appeal E015 of 2022) [2025] KEELC 3931 (KLR)
The bottom line
#A Kenyan High Court dismissed land buyers' appeal because they could not prove payment or the fraud they alleged, even though their case was filed in time.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Appellants' suit was statute barred
- 2.Whether the Appellants proved their case on a balance of probabilities
Key legal issues
#Whether the suit for recovery of land founded on alleged fraud was statute barred
The suit was not statute barred because the claim was based on fraud allegedly discovered in 2018 and the suit was filed in 2022, four years later
The alleged purchase of shares occurred in 1996, but the claim pleaded was not the 1996 contract; it was the fraudulent registration of the Respondent as owner in 2018. Since limitation in fraud runs from discovery, the four-year delay from 2018 to 2022 fell within time and the limitation defence raised in the Respondent's defence failed.
Whether the Appellants proved their case on a balance of probabilities
The Appellants failed to prove the sale of shares, the payment of Kshs.64,000/=, the 1st Respondent's registration as owner of the suit property, or the pleaded fraud; the appeal was devoid of merit
The burden of proof lay on the Appellants and never shifted to the 1st Respondent, who denied ownership of the suit property. No search or copy of title was produced to prove registration, no evidence of payment was adduced, and although fraud was pleaded, no attempt was made to prove the particulars. The trial magistrate's findings were therefore properly made and were upheld.
Legal principles established
#- A first appellate court must reconsider and evaluate the evidence afresh and arrive at its own conclusions, while making allowance for the fact that it did not see or hear the witnesses
- Fraud must be specifically pleaded with particulars and must be distinctly proved; it cannot be left to be inferred from the facts
- In claims founded on fraud, limitation time does not begin to run until the fraud is discovered
Court orders
#- 1.The Appellants' appeal is dismissed
- 2.Costs of the appeal awarded to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Kilungu Principal Magistrate's Court
- not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Principal Magistrate's Court
Relief refused
#Appeal against the dismissal of the Appellants' suit (cancellation of title, declaration of ownership, permanent injunction and general damages for fraud)
The Appellants failed to discharge the burden of proof; fraud was neither distinctly alleged nor proved and there was no evidence of payment of the Kshs.64,000/= consideration or of the 1st Respondent's registration as owner of the suit property
Costs
Appeal dismissed with costs to the 1st Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
From the above analysis, it is clear that the Appellants’ appeal is devoid of merit. The same is dismissed with costs to the 1st Respondent.
It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts
In matters touching on fraud, time does not start running until the fraud is discovered.
It is the Appellants who had the burden of proof to discharge that the 1st Respondent was a member of Malili Ranch Limited who held five shares and that she sold the said five shares to the Appellants
Issues in the judgment
#The memorandum of appeal as reproduced refers to grounds (a) to (i), but the analysis refers to grounds (j) and (l) which were never set out in the grounds of appeal reproduced in the judgment
Dates and figures in the judgment are inconsistently rendered (e.g. X008, X018, X022, X029, 1XX5), obscuring the actual years and plot numbers
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makilya & another v Simeon & another (Environment and Land Appeal E015 of 2022) [2025] KEELC 3931 (KLR)", Case Analysis (2025). Appeal from Kilungu PMCC (title not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3931/eng@2025-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.