Ongwae v Momanyi & 4 others

an order evicting the appellant from the suit property and an order of demolition of the structures erected on the suit property at the appellant’s cost. 2. The appellant, led a statement of defence dated 19th September 2023, denying the 1st and 2nd respondents' claim. He stated that he purchased the suit property from Japhet Barongo Omanwa, who had acquired it as a gift from Simon Omanwa Osoro, the original allotee and lessee and that he was therefore, a bona de purchaser for value without notice. The appellant pleaded that he subsequently commenced construction of a commercial apartment block on the suit property, which was partially complete. 3. The 3rd, 4th and 5th respondents did not le statements of defence or take part in the proceedings before the ELC. The 1st and 2nd respondents shall, henceforth be referred to as the respondents for the purpose of this appeal. 4. The ELC heard the case and in its judgment and decree dated 1st October 2025, it held that the respondents had proved ownership of the suit property, that the appellant had trespassed and forcibly detained the suit property and allowed the respondents’ claim and granted the relief they had sought in the plaint, namely: general damages of Kshs.3 million for trespass and forcible detainer; an order of eviction, an order of demolition of the structures erected on the suit property and a permanent injunction restraining the appellant from entering the suit property or interfering with the respondents’ possession of the suit property. 5. The appellant was dissatised and has lodged this appeal on several grounds faulting the ELC in: holding that the respondents proved their claim over the suit property despite the suit being statutorily time barred; determining un-pleaded issues; granting reliefs that had not been sought; nding that the previous registered proprietors were non-existent; failing to nd that the non-joinder of the previous owners was fatal to the respondents’ suit; concluding that there was no valid rst lease, transfer or sale of the suit property from Japheth Barongo Omanwa to him; nding that he fraudulently procured title to the suit property; nding that he was liable for trespass and forceful detainer; nding that he was not an innocent purchaser for value without notice; selectively evaluating the evidence on record and upholding the respondents' title contrary to the evidence; rendering a judgment containing material contradictions and reaching a decision that was against the weight of the evidence. 6. When the appeal came up for plenary hearing on the Court’s virtual platform, Mr. Nyang’au learned counsel appeared together with Mr. Gichana for the appellant while Mr. Nyamurongi learned counsel was for the respondents. There was no attendance for the 3rd, 4th and 5th respondents though they were duly served with a hearing notice by the Court and they did not also le written submissions. Counsel relied on their respective parties’ written submissions with brief oral highlights. 7. Mr. Nyang’au submitted that the respondents’ suit was time barred and therefore the ELC did not have jurisdiction to entertain it. According to counsel, the respondents' claim was founded on fraud whose limitation period is three years by virtue of section 4(2) of the Limitation of Actions Act; that the 2nd respondent admitted that they could not register the discharge of charge dated 5th September 2018 because the suit property was no longer registered in their names and that the cause of action accrued on that date but the suit was led on 28th May 2023. Counsel argued that the ELC erred in computing time from January 2022, when the respondents obtained documents from the Land Registrar instead of from the date the respondents became aware of the alleged fraud. He cited the case of Mwangi & Another v Munyeki Muranga [2024] KEELC 220(KLR) and Charles Mutua Mutermi v Republic [2022] eKLR, for the submissions that fraud is a common law tort whose limitation period is 3 years. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1984/eng@2026-09-25 2

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8. Counsel again submitted that the respondents did not prove fraud to the required standard; that they did not identify any fraudulent acts attributable to the appellant and they did not establish their legitimate ownership of the suit property. He maintained that the appellant proved that he purchased the suit property after conducting due diligence a fact that was corroborated by his advocate; that the respondents simply speculated that someone substituted their documents without identifying the alleged fraudster or linking the appellant to the alleged fraudulent act thus, the ELC improperly inferred fraud contrary to settled law. Counsel cited the cases of Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR; Demutila Nanyama Pururma v Salim Mohamed Salim [2021] eKLR and Kinyanjui Kamau v George Kamau [2015] eKLR for the proposition that fraud must be specically pleaded and strictly proved. 9. Counsel again faulted the ELC for misapprehending the evidence in relation to the two contrasting titles; misconstrued the documentary and oral evidence concerning the history of the suit property, maintaining that the allotment of the unsurveyed Plot No. 12 to Simon Omanwa Osoro preceded the gazette notices of October 1979 and February 1980 and, therefore, the suit property was no longer available for allocation to the respondents. It was counsel’s view, that the ELC wrongly treated the reference to the suit property as Plot No 12 in the gazette notice as a typographical error without evidential basis and overlooked the documentary evidence showing that Plot No. 12 had already been allocated. 10. It was Mr. Nyangáu’s submission that the respondents did not comply with the conditions in their allotment letter because they made payment late; they failed to submit development plans or develop the suit property within the stipulated period in the letter of allotment and therefore the allotment lapsed. He cited the cases of H.H. Dr. Seydna Mohammed Burhannuddin Sahed & 2 Others v Benja Properties Ltd & 2 Others [2007] KEHC 3181 (KLR) and Bubaki Investment Company Ltd v National Land Commission & 2 Others [2015] eKLR for the proposition that an allotment letter lapses when the allotee fails to comply with its conditions and it cannot be revived by late performance. 11. Counsel also argued that the respondents’ failure to join the previous registered proprietors of the suit property to the suit despite their central role, rendered the suit invalid and faulted the ELC for granting relief that had not been sought such as demolition of the developments and awarding general damages. He maintained that as an innocent purchaser for value without notice, the appellant should not have been condemned to pay general damages. He urged the Court to allow the appeal with costs. 12. In opposing the appeal, Mr. Nyamurongi submitted on the duty of the rst appellate court to reconsider the evidence, evaluate it and draw its own conclusions. He asserted that the suit was not time barred because it was not founded on fraud only but also on illegalities. He submitted that under section 26 of the Limitation of Actions Act, time begins to run from the time of discovering the fraud and maintained that although the respondents became aware of the construction on the suit property in 2021, they could not take action without ascertaining the identity of the person who was constructing thereon. He asserted that it was not until the respondents were given documents following a court order in January 2022, that they became aware of the person claiming ownership of suit property and they led the suit in May 2023 within time. 13. Counsel asserted that the respondents’ title is legitimate and is supported by ocial records, including receipts, correspondence, charge documents and ocial searches. They acquired the suit property lawfully notwithstanding the late acceptance and payment which were accepted by the Commissioner of Lands and Kisii Town Council thereby recognizing the respondents as the lawful proprietors of the suit property. The respondents continued to pay land rent and rates which were also received. Counsel cited the case of 748 Air Services Limited v Theuri Munyi [2017] KECA 419 (KLR) for https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1984/eng@2026-09-25 3

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the proposition that a waiver may be express or inferred from the conduct and that a party who intentionally relinquishes a known right cannot subsequently insist upon it, and Export Processing Zone Authority & 10 others (Suing on their own behalf and on behalf of all residents of Owino-Uhuru Village in Mikindani, Changamwe Area, Mombasa) v National Environment Management Authority & 3 Others [2024] KESC 75 (KLR) for similar propositions. 14. Regarding the acquisition of the appellant’s title, counsel asserted that the title was illegally and un procedurally acquired because the transfer instrument dated 12th July 2018 that the appellant relied on was executed using a repealed instrument and was not approved by the National Land Commission; there was no proof of payment of stamp duty and registration fees; the instrument was not stamped and registered as required by sections 37 and 43 of the Land Registration Act and was therefore incapable of conferring proprietary interest to the appellant. 15. Responding to the argument that the appellant was an innocent purchaser for value without notice, counsel posited that the appellant did not prove that he was a bona de purchaser for value without notice and cited the cases of Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) and Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR), for the proposition that a bona de purchaser for value must rst go to the root of the title in order to prove that he is a purchaser for value without notice. 16. On the non joinder of the previous owners, counsel submitted that the issue of non -joinder of the original allotee and the subsequent transferee was not pleaded and could not invalidate the respondents’ suit by virtue of under Order 1 Rule 9 of the Civil Procedure Rules. He further submitted that the appellant's contention that the trial court enhanced the award of general damages from Kshs.3,000,000 to Kshs.6,000,000 is not true and that the appellant did not make any submissions on quantum of general damages before the ELC, leaving the issue at the court's discretion. He maintained that the relief granted owed from the pleadings and the nding by the ELC that the respondents are the true proprietors of the suit property cannot be impugned, and urged the Court to dismiss the appeal with costs. 17. This being a rst appeal, the principles upon which this Court acts are well settled. We must reconsider the evidence, evaluate it ourselves and draw our own conclusions on that evidence, though we should bear in mind that we neither saw nor heard the witnesses and make due allowances for that. (See Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557(KLR)). 18. We have considered the record, submissions made on behalf of the parties, the decisions relied on and the applicable law. From those submissions, we have identied three broad issues for determination, namely; whether ELC properly determine ownership of the suit property; whether the suit was time barred and whether the award of damages was justied. 19. The appellant’s case was that the suit property was allocated to Simon Omanwa Osoro through an allotment letter dated 4th January 1979. Simon Omanwa Osoro gave the suit property to Japheth Barongo Omanwa as a gift before Japheth Barongo Omanwa eventually sold it to him for valuable consideration. The appellant had the suit property transferred into his name after which he commenced developments thereon. 20. The respondents maintained that the suit property was among the plots that were advertised for allotment by the Commissioner of Lands through gazette notices dated 19th October 1979 and 29th February 1980. Their application for allocation was successful and they were allocated the suit property through an allotment letter dated 29th January 1981. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1984/eng@2026-09-25 4

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They paid the amount due and they were issued with a lease dated 13th November 1981 and a Certicate of Lease dated 14th November 1981. They therefore contended that the letter of allotment purportedly issued to Simon Omanwa Osoro on 4th January 1979 was fraudulent and illegal because it was issued before the gazette notices had been issued advertising the plots for allotment; that the purported allotment to Simon Omanwa Osoro was in relation to an un-surveyed Plot No. 12 and not the suit property and that the purported allotment letter to Simon Omanwa Osoro levied rent prior to the date the suit property was made available for allocation. They were of the view, that the purported lease issued to Simon Omanwa Osoro, the subsequent transfers to Japhet Barongo Omanwa and later to the appellant, were founded on an illegal and void allotment letter. 21. We have reevaluated the evidence and perused the documents relied on by each side in relation to the acquisition of the suit property. The appellant testied that the suit property was initially allocated to Simon Omanwa Osoro who gave it as a gift to Josphat Barongo Omanwa who sold the suit property to him. The appellant relied on an allotment letter dated 1st January 1979 but he did not have the original letter of allotment itself and it was not produced. That letter of allotment purported to allocate an un surveyed residential plot within Kisii Municipality without Part Development Plan (PDP) and Number identifying the plot that was being allocated. The plot that was allocated was for a term of 99 years from 1. 1. 1979. This was before the Commissioner of Lands advertised the plots within Kisii Municipal Council for allocation. The letter of allotment further indicated that the annual rent was Kshs. 2,000; conveyance fee was Kshs. 1,250 and registration fee was Kshs. 250, at a time when the law-(the Government Land (Fees) Rules-Legal Notice No. 172 of 1976 and the Government Lands (Conveyance Fees) Legal Notice No. 173 of 1976) provided for conveyance fee of Kshs. 350 and registration fee of Kshs. 50. The amount of fees indicated in the purported letter of allotment was clearly illegal, unjustied and unexplained, casting doubt on the authenticity of that letter of allotment. 22. The appellant did not also adduce evidence that Simon Omanwa Osoro applied for allocation of land, that the purported allotment was accepted and if so, by letter of which date; that the money indicated in the allotment letter was paid, when and produce receipts for the payments. In other words, the appellant did not prove that the process leading the suit property being allocated and registered in the name of Simon Omanwa Osoro, followed the law before he could give it as a gift to Japheth Barongo Omanwa who could eventually sell it to him thus, missing he necessary foundation. 23. On the other hand, the respondents testied that the suit property was among the plots that were advertised for allotment by the Commissioner of Lands through gazette notices dated 19th October 1979 and 29th February 1980 respectively. They applied for allocation of a plot; they were allocated the suit property through an allotment letter dated 29th January 1981 which showed that the plot being allocated was Block1/185 Kisii Town which was in agreement with the gazette notice dated 29th February 1980 advertising plots for allocation which included Block1/185. They accepted the allocation, paid the money in the allotment letter, including conveyance fee of Kshs. 350 and registration fee of Kshs. 50 which tallied with the fees then payable under The Government Lands (Fees) Rules (Legal Notice No. 172 of 1976) and The Government Lands (Conveyance Fees) Rules (Legal Notice No 173 of 1976). The respondents were later issued with a lease dated 13th November 1981 and a Certicate of Lease dated 14th November 1981. They took possession of the suit property, fenced it and occasionally used for farming. They also charged the suit property in favour of Barclays Bank in 1984 to secure a loan which they repaid and they were given a discharge of charge. They regularly paid land rent and rates and produced documents, including the original allotment letter, payment receipts, lease documents and ocial searches conrming their registration as the proprietors of the suit property. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1984/eng@2026-09-25 5

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24. Based on our reevaluation of the evidence on record, we are satised that the ELC correctly found that the appellant did not prove that the purported allotment letter was lawful; that the law was followed and that Simon Omanwa Osoro acquired a valid title capable of passing ownership of the suit property by way of gift to Japheth Barongo Omanwa. Japheth Barongo Omanwa having not acquired valid title, he had no good title to pass to the appellant through the purported sale. 25. Regarding the appellant’s argument that ELC wrongly treated the reference to the suit property as Block II in the gazette notice dated 19th October 1979 as a typographical error without evidential basis, we nd no merit in this argument. As the ELC correctly stated, although the gazette notice dated 19th October 1979 advertised the plots as Block II, it was the second gazette notice dated 29th February 1980 that advertised the plots to be allocated, which included ‘Block 1/185. It was the second gazette notice and not the rst gazette notice that was acted on in allocating the suit property. 26. The appellant again argued that a letter of allotment lapses when the allotee fails to comply with the conditions thereon and that it cannot be revived by late performance. There is no doubt that the respondents delayed in making the payments. However, the record before the ELC shows that the Town Clerk, Kisii County Council wrote to the respondents on 13th March 1981, reminding them that they needed to provide their acceptance and pay the money indicated in the letter of allotment, less Kshs. 1,000 which they had paid as a deposit. The respondents wrote a letter of acceptance on the same day, 13th March 1981. They paid the money to the Town Clerk on 16th March 1981 and to the Commissioner of Lands on 21st March 1981, thereby concluding the process of accepting the allotment. The payments were accepted and the appellants were issued with payment receipts which they produced in court. 27. Once the respondents paid the money which was accepted, the Commissioner of Lands issued a lease and sent it to the Land Registrar, Kisii for registration which was registered in the respondents’ name and a certicate of lease was issued on 14th November 1981. The District Land Registrar forwarded a copy thereof to the Commissioner of lands on 18th November 1981.That process having been concluded; the respondents became the lawful owners of the suit property. 28. In Cabin Crew Investments Limited v Kenya Medical Training College & 4 others [2021] KECA 49 (KLR), the 1st respondent was allocated land which it accepted but made payments outside the time stipulated in the letter of allotment. The land was subsequently allocated to the appellant which was however nullied by the trial court. On appeal, this Court upheld decision of the trial court and stated as follows: “ [35] 29. …Although the acceptance and payment of the premium was done outside the stipulated time, the 3rd respondent accepted the money and issued a receipt for the same and never informed the 1st respondent that the oer had been withdrawn or had lapsed. In the circumstances, the Commissioner of Lands could not purport to deem the suit property as unalienated and purport to allocate the same to another party.” In this appeal, the respondents found themselves in a similar situation. We therefore agree with the ELC that a second lease could not be issued, registered on 11th February 1994 and a certicate of lease issued in the name of Simon Omanwa Osoro when a registered lease in favour of the respondents was already in existence. The allocation of the suit property to the respondents was validated the moment the Commissioner of Lands accepted the late payment. Having not revoked the allotment, the suit property was no longer an unalienated land for purposes of allocation to Simon Omanwa Osoro. The https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1984/eng@2026-09-25 6

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purported certicate of title issued to Simon Omanwa Osoro could not have been lawful and or the source of conferring a good title to the appellant. 30. Next. we turn to consider the appellant’s complaint that he was a purchaser for value without notice. The ELC dismissed this claim, holding that there was no evidence of purchase; payment of stamp duty and registration fees as a basis for the transfer of the suit property into the appellant’s name. Our reevaluation of the evidence on record leaves no doubt that the ELC was correct in arriving at that conclusion. The appellant’s claim that he purchased the suit property put him under obligation to prove the purchase which he did not. 31. Section 107(1) of the Evidence Act provides as follows: “ 107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 32. This position was restated by this Court in the case of Ndiritu (Suing as Administrator for the Estate of George Ndiritu Kariamburi-Deceased) v Ropkoi & another [2004] KECA 65 (KLR), that as a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the armative of the issue. 33. In this appeal, the appellant’s advocate testied that he acted for the appellant in the transaction but had nothing to show the ELC that the appellant purchased the suit property and paid the purchase price or that the suit property was legally obtained before it was purportedly transferred to the appellant. We agree with the ELC that there was nothing to prove that the appellant purchased the suit property from Josphat Barongo Omanwa, or that a lease to Simon Omanwa Osoro ever existed as the basis of any subsequent transfers. The purported lease to Simon Omanwa Osoro was fraudulent and so were the subsequent transfers to Josphat Barongo Omanwa and later to the appellant. The ELC arrived at the correct conclusion and we nd no reason interfere with that conclusion. 34. The appellant yet again advanced the argument that the title to the suit property could not be cancelled because the previous owners were not parties to the suit. The respondents submitted that the issue of non-joinder of the original allotee and the subsequent transferee was not pleaded and could not invalidate the respondents’ suit by virtue of under Order 1 Rule 9 of the Civil Procedure Rules. Order 1 rule 9 provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. 35. The matter before the ELC was between the respondents and the appellant. We are satised with the holding by the ELC that the appellant’s argument had no legal basis. Moreover, the appellant had an opportunity to call Simon Omanwa Osoro and Josphat Barongo Omanwa as witnesses or join them in the suit as third parties but he elected not to do so. He cannot therefore blame the respondents for not joining the two in the suit when he also failed on his part despite the fact that he was the one who at least knew those people. 36. This brings us to the next issue that is; whether the suit was time barred. The appellant’s submission was that although the respondents discovered the fraud in 2018, they instituted the suit in 2023 outside the three year limitation period for ling claims founded on fraud. The ELC rejected that submission, holding that the respondents had to le a suit seeking an order compelling the Land Registrar to give them documents which was issued on 18th January 2022. Prior to the issuance of that order, the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1984/eng@2026-09-25 7

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respondents had no idea of what was in the land records and that they had been defrauded of their land. The ELC then stated as follows: “ [36] …The limitation for claiming land is 12 years as outlined in Section 7 of the Limitation of Action Act. But even if I am to take the 3 years limitation period asserted by the 1st respondent, the suit was led within three years of the plaintis being provided with particulars of the purported title held by the Land Registrar.” 37. Section 4 of the Limitation of Actions Act prescribes the limitation periods within which to institute suits for various causes of action. With regard to causes of action founded on contract the limitation period is six years while causes of action founded on tort the limitation period is three years. With regard to land, section 7 limits the time for instituting a suit to recover land to 12 years. However, section 26 of the Act extends time in the case of an action based upon fraud so that the period of limitation does not begin to run until the time the fraud is actually discovered. 38. The same issue was addressed in Waswa v Nyongesa [2023] KECA 794 (KLR), where this Court (Kiage, JA.) stated as follows: “ [21] The…evidence compellingly shows that investigations into the alleged fraud began in the year 1995 and in the year 1997 the fraud was ascertained by an expert, a document examiner. The apparent fraud having been established in the year 1997, it is evident and I so nd, that time started running the same year in view of section 26 of the Limitation of Actions Act. The 12year limitation period for a suit for recovery of land pursuant to section 7 of the Limitation of Actions Act had not therefore lapsed when the appellant instituted the suit in 2001. This would be so whether time were reckoned from 1995 at rst discovery of the illegal transfer, or 1997 when the fraud was conclusively established. It is, to my mind, inconceivable that time would be held against the appellant respecting a period when he was unaware that he had been dispossessed of the land.” 39. We agree with the ELC that the time of 12 years had not expired at the time the respondents led the suit. In any case, they became aware of the fraud when they were given the documents by the Land Registrar disclosing the person purporting to be the owner of the suit property and therefore time started running from that time. The appellant’s contention that the respondent’s suit was time barred had no legal basis and the ELC properly rejected it. 40. The nal issue is whether the award of damages was justied. The appellant not only complained that the ELC granted relief that had not been sought but also for awarding general damages. He maintained that as an innocent purchaser for value without notice, he should not have been condemned to pay damages. The respondents asserted that the appellant’s contention that the ELC enhanced the award of general damages for trespass from Kshs.3,000,000 to Kshs.6,000,000 was not true. They maintained that the appellant did not make any submissions on quantum of damages, leaving the issue at the discretion of the court and asserted that the relief that the ELC granted owed from nding that they were the true owners of the suit property. 41. We have again perused the record of the ELC and in particular, the plaint. We note that the respondents sought general damages for trespass and forcible detainer; an order of eviction; an order of demolition of the structures on the suit property and a permanent injunction. During submissions, the respondents urged the ELC to award general damages of Kshs. 5 million for trespass and forcible https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1984/eng@2026-09-25 8

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detainer, but the appellant did not make any submissions on the issue. The ELC noted that the appellant was not the owner of the suit property; his actions of trespass and illegal possession of the suit property were egregious which must attract an award of general damages and send a massage that fraud does not pay. The ELC then awarded damages of Kshs. 3 million, among the other reliefs the respondents had sought in the plaint, contrary to the appellant’s claim that the ELC granted relief that had not been sought. 42. The ELC exercised its discretion in awarding damages. It is trite law that an appellate court will not interfere with a trial court’s exercise of discretion unless it considered wrong principles, failed to consider relevant factors or considered irrelevant factors, or it made an award so inordinately high or low as to represent a totally wrong estimate or amounts to an injustice. Further, an appellate court will not interfere with an award made by the trial court simply because it would have given a higher or lower award had it tried the matter. (Mbogo v. Shah [1968] EA 93; Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v. Lubia & Another (No. 2) [1985] eKLR). 43. In this appeal, the appellant did not demonstrate that the ELC applied wrong principles, took into account irrelevant factors or failed to take into account relevant factors or that the award of damages was inordinately high to amount to an injustice so as to justify this court’s interference. We are not persuaded that there is justiable reason for interfering with the discretion of the ELC. 44. In the end, we nd no merit in this appeal and we hereby dismiss it with costs to the 1st and 2nd respondents. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA …………….………….. JUDGE OF APPEAL E. C. MWITA ………....……………… JUDGE OF APPEAL B. ONGAYA …………….....……….. JUDGE OF APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1984/eng@2026-09-25 9

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