George Githua Mwangi (Suing as the administrator of the estate of Mwangi Thuo) v Josphine Wambui Kahiga (Sued as the administrator of the Estate of Njuguna Kariuki), Land Registrar Naivasha & The Hon. Attorney General

take the company's assets; thus, if the late Mwangi Thuo was a shareholder, he was only entitled to a share in the company's profits and losses. She therefore denied the claim that the late Mwangi Thuo had been allocated the parcel of land known as Naivasha/Maraigushu Block 4/47. 3. She argued that the registration of the suit parcel of land under her father’s name had been done lawfully and procedurally in accordance with the law. That in any event, the Amended Plaint and the suit herein, being a claim in land, is barred by the Limitation of Action Act. 4. With regard to the allegations of fraud and the particulars thereof, she argued as follows: i. That she has no knowledge of or involvement in any fraudulent dealings in relation to the suit parcel; ii. That her father, through due process, legally acquired title to the suit parcel and his registration as the proprietor was not tainted by fraud or illegality; iii. That the allegation that the 1st Defendant’s late father was aware that the plot had been allocated to the Plaintiff’s father is false and devoid of any factual basis; iv. That the 1st Defendant’s late father legally acquired proprietary rights over the suit parcel and as such, did not require any transfer of shares from the Plaintiff’s late father. She further contended that if the late Mwangi Thuo was a shareholder of Maraigushu Farm Limited which entitled him to land, that claim ought to have been directed to that company and not the 1st Defendant. 5. She asserted that her late father is the lawful owner of the suit land, having legally and procedurally acquired the title to the same wherein he had been in possession of the entire parcel, and that at no time had he expressed his willingness to vacate the same upon the appearance of an alleged owner. 6. She contended that no trust, express or implied, was ever created in favour of the Plaintiff or his late father; thus, the said claim remained baseless and misconceived. 7. The 2nd and 3rd Defendants did not enter Appearance. 8. The parties having complied with the pretrial directions, the matter proceeded for hearing on 18th February 2026, wherein the Plaintiff, George NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 2 of 24

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Githua Mwangi, testified under oath in Kiswahili, stating that he lived in Nakuru (“58”) and was a farmer. He adopted his witness statement dated 24th May 2025 as his evidence-in-chief and indicated that he would rely on his list of documents. He stated that his late father, Mwangi Thuo, passed away on 2nd December 1992. He subsequently filed Succession Cause No. 105 of 2020 at Kiambu and was issued a grant on 7 th April 2020, which was later confirmed. He produced the Grant as Pf exh 1. He explained that an earlier grant had been issued jointly to him and his elder sister, Wangari, who had since passed away on 27 th December 2020. He produced the earlier Grant of 27th February 2020 as Pf exh 2. 9. He proceeded to testify that the suit property was listed as Item No. 5 among his father's properties. In support of his claim, he produced an invitation letter to a General Meeting for Maraigushu Farm Ltd dated 1 st November 1980 addressed to his father as Pf exh 3, a receipt dated 9 th July 1983 for Ksh 2,100/= representing share capital as Pf exh 4, and an extract of a company register listing his father at No. 24 for Plot No. 47 as Pf exh 5, documents which he had recovered from his late father’s briefcase. 10. He testified that upon attempting to locate the land, he paid Ksh 17,000/= at the land’s office wherein a government surveyor subsequently surveyed the property and issued a report dated 15 th July 2022 herein produced as Pf exh 6. That upon visiting the property, he found it vacant with only trees, grass, and a herds boy present. He later obtained a Green Card from the Land’s Office showing that the property was registered under the name of Njuguna Kariuki, which card he produced as Pf exh 7. Consequently, he filed suit seeking cancellation of the title, transfer of the property into his name, and costs. 11. Under cross-examination, the Plaintiff admitted that he did not possess a share certificate for his father’s shareholding in Maraigushu Farm Ltd, though the receipt Pf exh 4 indicated payment for the balance of share capital. He acknowledged that the survey report, Pf exh 6 and the extract from his father’s briefcase herein produced as Pf exh 5 did not explicitly mention "Naivasha/Maraigushu Block 4/47" or reference Maraigushu Company Ltd directly, but maintained that Plot 47 corresponded to the suit parcel. NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 3 of 24

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12. He confirmed that the Green Card Pf exh 7 showed that the title was issued to Njuguna Kariuki on 18th November 1987. He acknowledged that his father, who was alive when the title was issued in 1987, took no legal action before his death in 1992, and that no action had been taken against the occupants for 32 years. He explained that in 1992 he was 17 years old and could not apply for letters of administration because his mother was diabetic and his elder sister, Wangari, lived in America. 13. Regarding the condition of the land, he admitted that while the surveyor’s report described the property as well-demarcated with a live fence and under partial agricultural activity, he only observed grass and a live fence. He conceded that Maraigushu Farm Ltd was no longer in existence. 14. Upon re-examination, the Plaintiff reiterated that although he did not find a share certificate, the receipt and register extracted from his father's documents enabled him to trace the property parcel number. 15. In response to the question by the Court, the Plaintiff stated that he only discovered in 2020 that the title was not registered in his father’s name when he visited the lands office. 16. PW2, Josephine Mburu testified in English as the Land Registrar for Naivasha, to the effect that she had received summons to appear in court with the official register and Green Card for Naivasha/Maraigushu Block 4/47 (New Karate). She stated that the Green Card was opened on 6 th October 1987, the land (measuring 3.64 hectares) was allocated to Njuguna Kariuki on 18th November 1987, and the title deed was issued on 4 th December 1987. She confirmed that Njuguna Kariuki appeared in the company's official register under parcel No. 47. She produced the said Green Card and the Members Register as Pf exhs 8 and 9 respectively. 17. Under cross-examination, the Land Registrar clarified that land-buying companies submitted their official registers to the registry to facilitate land distribution. She explained that the initial entry on the Green Card reflected the Government of Kenya followed directly by the allocatee, Njuguna Kariuki, as determined by the official register supplied to the land’s office. 18. She stated that the Green Card was a public record open for inspection for 39 years. She emphasized that title could not be lawfully issued to NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 4 of 24

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anyone not listed in the official register unless the company explicitly amended and stamped the entry. She stated that the land’s registry had no record of Mwangi Thuo claiming the land until the present suit was filed, concluding that he was not in the official registry for that parcel. The Plaintiff then closed its case. 19. The defence evidence through DW1, –Josephine Wambui Kahiga was to the effect that she was an auditor at Austen Young and resided in Nairobi. She had been sued as the administrator of the estate of her late father, Njuguna Kariuki, pursuant to grant letters issued in Succession Cause No. E045 of 2025 at Naivasha Chief Magistrate’s Court herein produced as Df exh1. She adopted her witness statement dated 13 th October 2025 as her evidence-in-chief. 20. She then proceeded to testify that her father was a member of Maraigushu Farm Ltd, a land-buying company, and had been allocated two parcels of land, including Naivasha/Maraigushu Block 4/47. A title deed was issued to him on 4th December 1987, which she produced as Df exh 2. She stated that since obtaining title, her family had actively farmed, grown trees, and grazed livestock on over 8 acres of the land through an employee, asserting that the land was not vacant. She maintained that membership was a prerequisite for land allocation and that she had never heard of the Plaintiff or his father prior to the suit. 21. She noted that the Plaintiff’s receipt, which was produced as Pf exh 4, only referenced "Plot No. 47" rather than "Naivasha/Maraigushu Block 4/47," whereas the Green Card herein produced as Pf exh 7 reflected her father as the registered proprietor. She prayed for the suit to be dismissed with costs. 22. Under cross-examination, the Defendant confirmed that her father passed away on 4th September 2024. She agreed that a title deed was only as valid as its acquisition process and confirmed that membership was necessary for allocation. However, she admitted that she did not possess share certificates, ballot papers, or receipts proving her father's membership, explaining that all such documents were surrendered to Maraigushu Farm Ltd in exchange for title deeds. She added that she could not retrieve historical company records because the company’s offices had closed a long time ago. NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 5 of 24

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23. On re-examination, she reaffirmed that the standard procedure required members to surrender their share certificates and ballot papers upon the issuance of titles. She noted that both the Green Card and Title Deed herein produced as Df exhs 2 & Pf exh 7 consistently identified Njuguna Kariuki as the proprietor since 18th November 1987, and highlighted that no legal challenge had been raised during her father’s lifetime over the 38-year period. 24. In response to the Court’s question, she stated that she was aware of the existence of a Register of Members, but had not checked for it at the Land’s Office. The Defence closed its case and parties were directed to file written submissions which I shall summarize as herein under: Plaintiff’s Submissions. 25. The Plaintiff based his submissions dated 7th May 2026, on the following issues for determination: i. Whether the late Mwangi Thuo was the lawful allottee of Plot No. 47. ii. Whether the registration of Njuguna Kariuki as proprietor was fraudulent, illegal or unprocedural. iii. Whether the Plaintiff is entitled to the reliefs sought. 26. As to whether Mwangi Thuo was the lawful allottee, he submitted that he had produced shareholding records from Maraigushu Farm Co. Ltd, receipts evidencing payment and ballot/allocation records confirming allocation of Plot No. 47, which evidence established a beneficial interest in land arising from membership in a land-buying company. He argued that the deceased’s interest had crystallized upon balloting and allocation, giving rise to a proprietary interest capable of protection by the Honorable Court. To illustrate his position, he relied on the following cases: i. Willy Kimutai Kitilit v Michael Kibe [2018] eKLR where it was emphasized that equitable interests arising from landbuying arrangements are enforceable and can override legal title where fraud or illegality is shown. NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 6 of 24

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ii. Kanyi v Muthiora [1984] KLR 712 where it was highlighted that registration did not extinguish customary or equitable interests. 27. On the second issue for determination as to whether the registration of Njuguna Kariuki was fraudulent or unprocedural, the Plaintiff first relied on the following legal framework: i. Section 26 (1) of the Land Registration Act, which provides that a title may be impeached where it is obtained through fraud or misrepresentation to which the person is a party; or through a corrupt scheme or unprocedural means. ii. Arthi Highway Developers Limited v West End Butchery Limitted & 6 Others [2015] KLR where it was held that title obtained through fraud or illegality cannot be protected under the law. iii. Funzi Island Development Limited & 2 Others v County Council of Kwale & 2 Others [2014] eKLR where it was emphasized that courts will not sanitize an illegality merely because a title deed had been issue. 28. Regarding the evidence on record, he contended that the Defendant’s case is fatally weak as she had admitted that her father had no share certificate, receipts, ballot and that no independent shareholder or company official had confirmed her father’s ownership thus the root of the alleged title was not supported. That in contrast, the Plaintiff had provided documentary proof tracing ownership from the land-buying company. He relied on the decision in the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR where it was held that when a registered proprietor’s root of title is under challenge, it was not sufficient to dangle the title deed; the proprietor must prove the legality of how he acquired the title, to submit that the 1st Defendant had failed the said test completely. 29. On the evidence by the Land Registrar, he contended that whereas the Land Registrar had produced a green card bearing the 1st Defendant’s father’s name and a handwritten register lacking authentication from the company, under cross-examination, the said Registrar could not confirm the authenticity of the register thus casting serious doubt on the process that NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 7 of 24

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had led to the registration of the Defendant’s father. He relied in the decided case of Republic v Land Registrar, Kilifi & Another Ex Parte Daniel Ricci [2019] eKLR where it had been held that the Land Registrar must maintain accurate and credible records, and where records are questionable, the resulting title cannot stand. 30. With regard to burden of proof in fraud, he argued that whilst fraud must be strictly proved, it could be inferred from circumstances. He relied in the decided case of Vijay Morjaria v Nansingh Madhisingh Darbar & Another [2000] eKLR where it was held that fraud must be specifically pleaded and strictly proved, although not beyond reasonable doubt. He contended that the totality of evidence showed that his (Plaintiff) father had a clear, traceable interest while the Defendant’s father had no documentary basis and that the Land Registry records were inconsistent and unreliable thus irresistibly pointing out to unprocedural and fraudulent registration. 31. As to whether he was entitled to the reliefs, he placed reliance on the provisions of Section 80 (1) of the Land Registration Act that empowers the Court to order rectification of the Register where registration had been obtained through fraud or mistake and the Arthi Highway Developers Limited’s case (supra) where it had been affirmed that courts have wide powers to cancel titles obtained illegally. He also relied on the provisions of Article 40 (6) of the Constitution that denies protection to property obtained unlawfully and concluded that he had demonstrated a; i. Valid and provable root of title from Maraigushu Farm Co. Limited. ii. That the Defendant’s title is unsupported and unverified. iii. That the registration process was unprocedural and tainted. 32. He contended that the Defendant had failed to discharge the evidential burden required to uphold her title and sought: i. A declaration that Naivasha/Maraigushu Block 1/47 belongs to the estate of Mwangi Thuo. ii. An order for cancellation of the title in the name of Njuguna Kariuki. iii. An order directing the Land Registrar, Naivasha to register the Plaintiff as the proprietor. NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 8 of 24

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iv. Costs of the suit. 1st Defendant’s submissions. 33. The 1st Defendant, on the other hand, based her submissions dated 4th May 2026, after summing up the case, on the following; i. First, on the issue of limitation as a jurisdictional question ii. Secondly, on the question of proof of shareholding in Maraigushu Farm Limited and the contradiction in evidence adduced by the plaintiff. iii. Thirdly, on the interplay between shareholding in a company and entitlement to land owned by the company. iv. Finally, on what had been pleaded as particulars of fraud being at variance with the evidence thus falling short of the legal requirements of proof of fraud. 34. As to whether the instant suit is barred by the Limitation of Actions Act, she first explained that the law makes a clear distinction between an action based on trespass and an action to recover land. That in an action based on trespass, each continued occupation of the land constituted a fresh cause of action thus the limitation period of three years may be extended in perpetuity so long as there is continued occupation. On the other hand, an action for recovery of land cannot be brought after the expiry of 12 years. That action on trespass is a tortious claim for interference with possession and that under the provisions of Section 4 of the Limitation of Action Act, the limitation period for filing a suit on the same is 3 years from the date of accrual of the cause of action. That conversely, action for recovery of Land was a proprietary claim brought by a person seeking to regain land from which they had been dispossessed and that the limitation period under section 7 of the Limitation of Action Act was 12 years. 35. She relied on the decided case of Margaret Wairimu Magugu v Karura Investment Limited & others Civil Appeal No. 3 OF 2018 to emphasize that Limitation was a jurisdictional question and although it ought to be tried and determined in limine, the need to try facts by way of analysis of evidence and the need to ensure a proper use of time as a judicial resource militate against dealing with the issue as a preliminary NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 9 of 24

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point of law. She explained that it was for that reason that the issue whether the suit was barred under the Limitation of Actions Act was tried within the main suit. 36. She contended that the claim by the Plaintiff was a proprietary claim because he had asserted that the title to the parcel of land herein had been procured and issued to the late Njuguna Kariuki through fraud and therefore it5 should be cancelled and a new title issued in his name. That accordingly, the suit was an action for recovery of land and not an action on trespass. That under the provisions of Section 7 of the Limitation of Actions Act, a suit cannot be brought upon the expiry of 12 years. 37. She placed reliance in the decided case of Gitae (Suing as the Administrator of the Estate of Gitae Thaiya -Deceased) v Mwaura & 2 others [2025] KEELC 6289 (KLR), where it had been observed that the 12 years window was an absolute bar to the filing of suits for recovery of land. Further reliance was placed in the Court of Appeal’s decision in Mukuru Munge vs. Florence Shingi Mwawana & 2 others [2016] eKLR. 38. That since, the suit herein was a claim for recovery of land, the Plaintiff ought to have filed it within (12) years from the date of accrual of the cause of action. She explained that under the provisions Section 9(2) of the Limitation of Actions Act, where a person brings an action in his capacity as an administrator of the estate of the deceased, time for purposes of the act runs from the time of death. That since the Plaintiff in this matter had brought the suit in his capacity as the administrator of the estate of the late Mwangi Thuo who died in the year 1992, the suit ought to have been filed on or before the year 2004 but it was filed 34 years later. She thus contended that at the very elementary level, the instant suit is barred under the provisions of section 7 of the Act and it ought to be struck out with costs. He relied in the decided case of Wanjugu v Ngugi (Environment & Land Case 153 of 2018) [2024] KEELC 5649 (KLR). 39. She argued that to beat the statutory period of limitation, the Plaintiff had pleaded fraud. She relied on the provision of Section 26 of the Limitation of Actions Act to explain that where an action is based on fraud and/or where the Plaintiff is prevented from filing the suit due to the fraud NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 10 of 24

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perpetrated by the Defendant, time did not begin to run until the Plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it. She however argued that due diligence entails proactivity and the absence of ineptitude. She placed reliance in the decided case of Margaret Wairimu Magugu v Karura Investment Limited & 4 others [2019] KECA 653 (KLR) where the court had laid down the principles that the question is not whether the Plaintiffs should have discovered the fraud sooner; but whether they could with reasonable diligence have done so. That the burden of proof was on them and that they must establish that they could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take. 40. She also relied on the decision in the case of Paragon Finance vs D B Thackerar & Co [1999] 1 All ER 400 where the court had observed that where a party presents a suit based on fraud as an administrator of an estate of the deceased, discovery of fraud is not confined to the administrator, but also to the deceased during his lifetime. She asserted that whereas the title deed in the name of the late Njuguna Kariuki had been issued in the year 1987 and the late Mwangi Thuo died in 1992, during his lifetime, he never took any initiative to conduct a search and establish the ownership of the land yet green card is a public document available to any party upon request. That indeed, it had taken 34 years for the Plaintiff to conduct a search and establish who the owner of the land was, which was a lack of due diligence, since if there was any fraud, the same was discoverable in the year 1987. Accordingly, even if the court was to consider the provisions of Section 26 of the Limitation of Actions Act, the suit is timebarred. 41. On proof of shareholding in Maraigushu Farm Limited and the legal effect of shareholding in a company, she first explained that the Plaintiff’s central pillar in proving the merits of his case was that his late father, Mwangi Thuo was a shareholder in Maraigushu Farm Limited thus entitled to the disputed land by virtue of the shareholding wherein he had called the land registrar who produced the register of the company to prove that. She reiterated the evidence that the land registrar had adduced to the effect that the company NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 11 of 24

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register was deposited at the land registry to facilitate issuance of title deeds to the shareholders and confirmed that the late Njuguna Kariuki, the 1st Defendant’s late father, was a shareholder in Maraigushu Farm Limited and that his name appeared against the parcel of land marked as plot number 47. That the land registrar had further confirmed that the name of the late Mwangi Thuo was not in the register and that the land registry could not allocate land to persons who were not shareholders. 42. She contended that whilst the Plaintiff had asserted in the affirmative that his late father was a shareholder in Maraigushu Farm Limited, he had proceeded to produce evidence that disproved that fact. That indeed, the said evidence was further corroborated by the Land Registrar. She argued that since the Plaintiff’s own evidence had demonstrated that his father was not a shareholder, his case lacked any factual basis and the same ought to be dismissed with costs. 43. That in any event, even if it was to be assumed that the late Mwangi Thuo was a shareholder of Maraigushu Farm Limited, shareholding did not entitle him to claim land which may have been owned by the said company. That it is elementary company law that from the date of incorporation, the company was a body corporate capable of exercising all the functions as a legal person, which includes the power to own land and other property in its own name and that there was a clear distinction between shares and property owned by the company. She asserted that the shares are personal property and entitle the shareholder to a share of the company's profits. He relied on the case of Pacific Frontier Seas Ltd v Kyengo & another [2022] KECA 396 (KLR), where the Court of Appeal had emphasized that the estate of a deceased shareholder was entitled only to the shares held by the deceased, not to the property registered in the company's name. Subsequently, even if the Plaintiff proved that his late father was a shareholder of the company, it did not entitle him to the land; hence his suit should be dismissed. 44. Regarding pleadings and proof of fraud, she submitted that fraud unravels everything and vitiates even the most solemn proceedings. That fraud is both textual and contextual. She placed reliance on the definition of fraud from the Blacks Law Dictionary, 9 th Edition and the decided case of NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 12 of 24

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Kibiro Wagoro Makumi v Francis Nduati Macharia & another [2018] eKLR where the court had observed that fraud consisted of deceitful conduct calculated to deprive another of his right, or to cause an injury. That at equity, fraud included all acts, omissions, and concealments which involved a breach of legal or equitable duty, trust, or confidence leading to an injury or loss to another. 45. That it was trite law that fraud must be specifically pleaded and proved and that vague accusations which are unsupported by evidence should not suffice. She relied in the case of Wanjugu v Ngugi (Environment & Land Case 153 of 2018) [2024] KEELC 5649 (KLR) to submit that it was not sufficient to sprinkle a pleading with phrases like “willfully” and “recklessly”. She argued that an allegation that the 1 st Defendant “knew or ought to have known” was not a clear and unequivocal allegation of actual knowledge and would not support a finding of fraud even if the court was satisfied that there was actual knowledge. Additionally, an allegation that the 1 st Defendant had actual knowledge of the existence of a fraud perpetrated by others did not prove fraud and would not support a finding of fraud even if the court is satisfied that the failure to disclose was deliberate and dishonest. To buttress her position, she relied on the decided case of Evans Kidero v Speaker of Nairobi City County Assembly & another [20158] eKLR. 46. It was her submission that the pleadings by the Plaintiff had failed the basic test since, whereas he had alleged that the 1 st Defendant’s father had acted fraudulently in processing the title, he was not a shareholder of the company. That the Plaintiff had also alleged that he was issued with a first registration without a formal transfer from his father, who had been allocated the said land. That unfortunately, the evidence adduced by the land registrar had negated those averments and instead demonstrated that the Plaintiff’s father was not a shareholder, nor had he been allocated the disputed land. That subsequently, fraud was not properly pleaded or proved; hence the instant suit ought to be dismissed. 47. Regarding the discrepancy between the acreage of the parcel of land claimed and the actual size of the land, she argued that since the Plaintiff had pleaded that the parcel of land known as Naivasha/Maraigushu Block NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 13 of 24

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4/47 (New Karati) measuring 18 acres was the property of his late father, Mwangi Thuo, he had the evidential burden to prove every allegation including the size of the land. Nonetheless, he never produced a title deed for a parcel of land measuring 18 acres. On the other hand, the 1 st Defendant had produced the title deed for Naivasha/Maraigushu block 4/47 (New Karati) measuring 3.56 hectares, which, on metric conversion, was 8.79 acres. 48. She contended that the inconsistency between what was pleaded and the evidence which was tendered had impeached the Plaintiff’s credibility as a witness. The fact that the Plaintiff was claiming 18 acres for a parcel of land that is legally documented as approximately 8.8 acres pointed to his lack of basic knowledge of the property. In land disputes, the identity of the suit land was a primary issue. Accordingly, by claiming a significantly different acreage, the Plaintiff had failed to accurately identify the subject matter of the suit, therefore weakening the allegation of fraud. Determination. 49. I have considered the Plaintiff’s suit, the 1st Defendant's defence, noting that the 2nd and 3rd Defendants did not participate in these proceedings. I have also considered the parties' submissions and the authorities cited, as well as the applicable law herein. A summary of the evidence presented by both the Plaintiff and the 1st Defendant during the hearing was as follows; 50. The Plaintiff’s case while testifying as the administrator of the estate of his late father, Mwangi Thuo, who died on 2nd December 1992, pursuant to confirmed letters of administration in Kiambu Succession Cause No. 105 of 2020, was that Naivasha/Maraigushu Block 4/47 - New Karate belonged to his late father through shareholding in Maraigushu Farm Ltd. He produced in evidence an invitation letter to a company General Meeting dated 1 st November 1980, a payment receipt dated 9th July 1983 for Ksh 2,100/= representing share capital, an unauthenticated document recovered from his father's briefcase purporting to be an extract of a company register listing his father at No. 24 for Plot No. 47, a Government Surveyor's report dated 15th July 2022, and a Green Card showing the property was registered under Njuguna Kariuki. NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 14 of 24

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51. He, however, admitted that he did not possess a share certificate for his father in Maraigushu Farm Ltd, a receipt, nor the document explicitly referencing Naivasha/Maraigushu Block 4/47 or Maraigushu Company Ltd directly. He confirmed that the title was issued to Njuguna Kariuki in 1987 wherein his father, who lived until 1992, took no legal action during his lifetime. No action had been taken regarding the land for 32 to 34 years until 2020/2025 when he filed the present suit. While he claimed the land was vacant, he admitted under cross-examination that a live fence was present on the ground. 52. The 1st Defendant’s case, on the other hand, had been that she too was an administrator of the estate of her late father, Njuguna Kariuki, who died on 1st July 2022, and she had been issued her letters of Administration in Naivasha CM Succession Cause No. E045 of 2025. Her late father was a member/shareholder of Maraigushu Farm Ltd and was allocated two parcels of land, including Naivasha/Maraigushu Block 4/47, wherein he had obtained a title deed on 4th December 1987. 53. That under company procedure, members were required to surrender their original share certificates, ballot papers, and payment receipts to the company in exchange for their title deeds. Therefore, her family no longer held the original receipts or share certificates, as they had been surrendered in 1987. Her family had been in open, continuous, and undisturbed possession of the suit property since 1987, engaging in livestock grazing, sheep farming, and cultivation on over 8 acres through an employee. 54. She called the Land Registrar, Naivasha, who produced the official Green Card which had been opened on 6th October 1987 and the official Extract of the Register of Members deposited by Maraigushu Farm Ltd confirming Njuguna Kariuki was listed in the company's official register against Parcel/Plot No. 47, and title was lawfully issued to him on 18 th November 1987. She confirmed that the Plaintiff’s father, Mwangi Thuo, was not in the official company register held by the Lands Registry, and clarified that the Lands Registry issues titles only based on the official register deposited by the land-buying company. 55. Having summarized the evidence as adduced by the parties herein, I find the issues arising therein for determination as being; NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 15 of 24

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i. Whether the Plaintiff’s suit is statute-barred under Section 7 of the Limitation of Actions Act, if not ii. Whether the late Mwangi Thuo was the lawful allottee of Plot No. 47 / Naivasha/Maraigushu Block 4/47 (New Karate). iii. Whether the registration of Njuguna Kariuki as proprietor of Naivasha/Maraigushu Block 4/47 on 18th November 1987 was fraudulent, illegal, or unprocedural. 56. On the first issue for determination, it is trite that jurisdiction is the bloodline of any action; without which the court is essentially a ship without a compass. That if this foundation is missing, any superstructure built upon it will eventually come crashing down. The principle that jurisdiction must be decided first—because any proceedings conducted without it are a nullity— is a cornerstone of common law. Indeed, the ‘’Golden Rule’’ regarding jurisdiction is that it is a threshold issue such that when a court’s authority is challenged, it must "down its tools" and resolve that question immediately before taking any further steps, as was held by the Court of Appeal in the classical case of Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd [1989] KLR 1, where Nyarangi, JA had this to say; "Jurisdiction is everything. Without it, a court has no power to make one more step... Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools the moment it holds the opinion that it is without jurisdiction." 57. The Supreme Court of Kenya has reaffirmed this rule, where in the case of Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) the court had held as follows: ‘’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. We agree with counsel for the first and second respondents in his submission that the NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 16 of 24

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issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.’’ 58. This Court’s jurisdiction having been questioned to the effect that the suit herein filed was statute-barred by reason of Section 7 of the Limitation of Actions Act and therefore the court must balance a critical tension between three competing legal doctrines: the classification of the claim, being the statutory 12-year limitation period for the recovery of land versus the common law doctrine of continuing trespass; the accrual of the cause of action, and whether the fraud exception under Section 26 of the Limitation of Actions Act applies to extend time. 59. The law makes a clear distinction between a tortious action for trespass and a proprietary action for the recovery of land. Trespass involves a continuous wrong where each day of unauthorized occupation creates a fresh cause of action, governed by a 3-year limitation under Section 4 of the Limitation of Actions Act. 60. Conversely, where a Plaintiff seeks to impeach a registered title, cancel an entry on the register, and divest a registered owner of title in order to regain possession, the claim is strictly a proprietary action for the recovery of land. 61. 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. 62. Section 7 of the Limitation of Actions Act provides that an action to recover land may not be brought after the end of twelve years from the date on which the right accrued. 63. On the other hand, Section 4 of the same Act stipulates that Trespass to land, being a tortious action for wrongful interference with possession, cannot be brought after the end of three years from the date on which the NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 17 of 24

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cause of action accrued. However, where trespass is continuous, a fresh cause of action arises daily, subject to a 3-year limitation period. 64. In the present matter, the Plaintiff seeks a declaration of title, cancellation of Njuguna Kariuki’s registration, and an order directing the Land Registrar to transfer the property to his name. It is therefore not in dispute that the Plaintiff herein filed suit on behalf of his deceased father to recover land. Because the core prayer seeks to divest the Defendant of registered ownership and repossess the land, this suit is incontrovertibly a proprietary action to recover the deceased’s alleged land, triggering the 12year statutory limit under Section 7 of the Limitation of Actions Act. 65. Section 9(2) of the Limitation of Actions Act explicitly addresses actions brought by estate administrators to the effect that; ‘’Where a person brings an action to recover land of a deceased person, whether under a will or on intestacy, and the deceased person was on the date of his death in possession of the land, and was the last person entitled to the land to be in possession of the land, the right of action accrues on the date of death.’’ 66. In essence therefore, this provision of the law deals with the accrual of a right of action in cases involving an interest in land and specifies the exact moment in time when the clock starts ticking for the purpose of the statute of limitations for lawsuits concerning land. The provision envisages a situation where a person suing to recover the deceased’s land does so within 12 years from the date of the deceased’s death, provided that the deceased was in possession of the land at that time. 67. In the present case, the evidence adduced herein is that the title deed to Naivasha/Maraigushu Block 4/47 was issued to Njuguna Kariuki, the 1 st Defendant’s father, on 18th November 1987. If the late Mwangi Thuo was indeed the rightful owner or allottee, his rights were dispossessed or adverse to the registered title as of 18 th November 1987. Evidence on record is that during his lifetime, the Plaintiff’s father, Mwangi Thuo, never took any initiative to conduct a search and establish the ownership of the land, yet the green card, being a public document available to any party upon NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 18 of 24

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request, he also failed to challenge the entry of Njuguna Kariuki or take any legal action, between 1987 and his death on 2nd December 1992 (a period of 5 years). 68. Under Section 9(2), therefore, the 12-year limitation period commenced at the latest on 2nd December 1992 and expired on 2nd December 2004. The Plaintiff instituted this suit in June 2025, approximately 33 years after his father's death and 38 years after the issuance of title. On the face of Section 7 and Section 9(2), the suit was therefore extraordinarily stale, strictly statute-barred by more than two decades, and outside the prescribed 12year time frame. 69. Further, Section 9(2) of the Limitation of Actions Act clearly stipulates that in order to bring suit on behalf of a deceased person, the deceased person must have been or ought to have been ‘’in possession’’ of the land for the clock to start ticking for the purpose of the statute of limitations. In the present case no evidence had been tendered that the deceased, Mwangi Thuo had been in possession of the suit parcel of land prior to his death; indeed, what came out clearly was that the 1st Defendant and her family had been in possession and occupation of the suit land from the year 1987 to date, wherein they had farmed on the same and even put up a live fence. 70. The law assumes that a landowner who fails to take action after 12 years to remove a trespasser or an unauthorized occupant for such a long period has effectively slept on their rights. 71. Section 17 of the Limitation of Actions Act further solidifies this position by stating that at the end of the 12-year limitation period, the title of the original owner is extinguished. This means the rightful owner loses their legal ownership, and the adverse possessor can then claim title to the land. This deliberate legal policy ensures that land titles, foundational to economic and social stability, are not perpetually challenged. The integrity of land ownership is protected by this strict time limit. Once the 12-year statutory period for adverse possession has run out, their right to recover the land is lost forever. 72. To evade the statutory bar, the Plaintiff craftily submitted that their claim was based on fraud, illegality and misrepresentation and therefore the NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 19 of 24

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limitation period did not begin to run until the fraud was discovered. 73. It is trite, as was held by the Court of Appeal in R.G Patel vs Lalji Makanji, 1957 E.A 314, that allegations of fraud must be strictly proved although the standard of proof may not be so heavy as to require proof beyond reasonable doubt. 74. Indeed, fraud under Section 26 of the Limitation of Actions Act postpones the limitation period until the discovery of fraud. However, the provision dictates that time begins to run when the Plaintiff discovered the fraud or "could with reasonable diligence have discovered it." 75. 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:’’ 76. Section 26 of the Limitation of Actions Act is a provision of the law that extends the normal limitation period in three specific circumstances, being fraud, concealment, or mistake, wherein the period of limitation does not begin to run until the Plaintiff has discovered the said fraud or could with reasonable diligence have discovered it. The Plaintiff claims that the 1st Defendant’s deceased father’s title was obtained fraudulently because he had no share certificate, receipts, or ballot from the company, and therefore the root of the alleged title was not supported. That in contrast, he had provided documentary proof, being an invitation letter inviting his father to NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 20 of 24

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a General Meeting for Maraigushu Farm Ltd dated 1 st November 1980, a receipt dated 9th July 1983 for Ksh 2,100/= representing share capital and an uncertified copy of an alleged extract of a company register listing his father at No. 24 for Plot No. 47, which documents had allegedly traced ownership from the land-buying company. 77. The principle of reasonable diligence requires proactivity. The Green Card and the Land Register have been public records open to official inspection since 18th November 1987. As held by the Court of Appeal in Margaret Wairimu Magugu v Karura Investment Limited & 4 others [2019] KECA 653 (KLR) ‘’Therefore, the deceased had all the time between October 1993 up to October 2004 (a period of 12 years) within which to challenge the registration of the 1st respondent as the owner of the property. He did not do so and by the time he died 19 years had lapsed with the 1st respondent as the registered proprietor in possession of the property. Could the appellant, as the administrator claiming through the deceased do so approximately 24 years later?.......... There is no doubt that under that provision, where the action is based on fraud the period of limitation prescribed does not begin to run until the plaintiff discovers the fraud. (see for instance Kenya Ports Authority vs Timberland(K) Ltd [2017] eKLR). However, having regard to the proviso to Section 26 of the Act as highlighted above, it is inconceivable that for 19 years, in the case of the deceased, and 24 years in the case of the appellant, they would have failed to discover, with the exercise of due diligence, the alleged fraud and to act if indeed the acquisition of the property by the 1 st respondent was fraudulent. Due diligence entails the exercise of care required from a given person in a given situation. It entails proactivity and absence of carelessness or idleness. In the English case of Paragon Finance vs D B Thackerar & Co [1999] 1 All ER 400 at 418B-D, Millett LJ of the Supreme Court of England opined that: “The question is not whether the plaintiffs should have discovered the fraud sooner; but whether they could with NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 21 of 24

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reasonable diligence have done so. The burden of proof is on them. They must establish that they could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take.” 78. As can be seen from the above holding, the duty of due diligence attaches to the deceased during his lifetime as well as to the administrator. Mwangi Thuo lived for five years after the title was issued in 1987 and took no steps to verify or challenge the register. Reasonable diligence requires basic proactivity. Conducting an official search at the land registry is routine, not an "exceptional measure." Had the deceased or the Plaintiff exercised minimal diligence in 1987, 1992, or any year before 2004, the registration of Njuguna Kariuki would have been immediately revealed. 79. The Plaintiff failed to demonstrate any exceptional impediment that prevented the discovery of the registered title within the statutory 12-year period. Consequently, the Plaintiff cannot benefit from Section 26 of the Limitation of Actions Act. 80. Further, the testimony of the neutral Land Registrar (PW2) directly undermined the allegation of fraud confirming that Njuguna Kariuki was listed in the company's official register deposited with the registry, whereas Mwangi Thuo’s name was absent. Because the Plaintiff failed to establish actual fraud or collusion, the foundation for invoking Section 26 also collapses. 81. In the case of Bosire Ongero vs Royal Media Services [2015] eKLR, the court held that the issue of limitation went to the jurisdiction of the court to entertain claims and therefore, if a matter is statute-barred, the court has no jurisdiction to entertain the same. 82. The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S” (supra) where Justice Nyarangi of the Court of Appeal had held as follows; 'I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 22 of 24

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Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.' 83. In light of the analysis hereinabove, this Court makes the following findings of law and fact on the question of limitation: i. The Plaintiff’s claim is a proprietary action for the recovery of land governed by Section 7 of the Limitation of Actions Act. ii. Pursuant to Section 9(2) of the Limitation of Actions Act, time began running upon the death of the late Mwangi Thuo on 2nd December 1992 and expired on 2 nd December 2004. iii. The Plaintiff has failed to satisfy the threshold under Section 26 of the Act, as the registered title was a matter of public record discoverable through reasonable diligence as early as 18th November 1987. iv. Filing this suit in June 2025, which was 33 years after the death of the deceased, thus renders the action hopelessly stale, statute-barred, and incompetent. v. Section 7 of the Limitation of Actions Act operates to extinguish the Plaintiff's right of action and deprives this Court of jurisdiction to grant the prayers sought in the Amended Plaint. 84. In the end, the Plaintiff’s suit is hereby declared strictly statute-barred by virtue of Section 7 of the Limitation of Actions Act. His Amended Plaint of 2 nd October 2025 is hereby dismissed in its entirety with costs. Dated and delivered via Microsoft Teams at Naivasha this 24th day of September 2026. M.C. OUNDO NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 23 of 24

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ENVIRONMENT & LAND COURT – JUDGE NAIVASHA ELCLC NO. E030/2025 JUDGEMENT Page 24 of 24

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