Samuel Juma Aduda v Lawrence Moro Aketch, William Gachanja Maina, The County Land Registrar, Kisumu & The Hon. Attorney General

Samuel Juma Aduda, the Appellant, was the 2nd defendant in the trial court. Lawrence Moro Aketch, the 1st Respondent, was the plaintiff. William Gachanja Maina, the 2nd Respondent, was the 1st defendant. The County Land Registrar, Kisumu and the Hon. Attorney General, the 3rd and 4th Respondents respectively, were the 1st and 2nd third parties. Where I refer to the evidence, I use the designations under which the witnesses testified below. 3. The suit property is all that parcel of land known as Kisumu/Wathorego/2563, situate within the Wathorego Adjudication Section in Kisumu County. The case before the Trial court 4. The 1st Respondent commenced the suit by a Plaint dated 4th February 2013, filed in the High Court at Kisumu as Land and Environment Case No. 45 of 2013 in February 2013, and subsequently transferred to the Magistrate’s Court at Winam by an order made on 24th September 2018, where it took the number ELC No. 109 of 2018. 5. His case, shortly stated, was that he is the registered proprietor of Kisumu/Wathorego/1768, JUDGMENT ELCA NO. E041 OF 2023 ancestral land 2

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which came to him through the Wathorego adjudication process; that the 2nd Respondent fraudulently excised a portion measuring about 0.13 hectares from parcels Kisumu/Wathorego/1768 and Kisumu/Wathorego/1769 and caused the suit property Kisumu/Wathorego/2563 to be created and registered in his own name; and that the suit property was thereafter transferred to the Appellant. Particulars of fraud were pleaded at paragraph 7 of the Plaint. 6. The reliefs sought in the Plaint were: a declaration that title number Kisumu/Wathorego/2563 was fraudulently created and that the same be declared as forming part of title numbers Kisumu/Wathorego/1768 and 1769; an order cancelling the register and deleting the name of the 2nd defendant (the Appellant) as registered proprietor of Kisumu/Wathorego/2563; a permanent injunction; and costs. 7. The 2nd Respondent, though served by substituted service pursuant to the ruling of 24th September 2018, never entered appearance. Interlocutory judgment was JUDGMENT ELCA NO. E041 OF 2023 3

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entered against him on 16th April 2019 pending formal proof. 8. The Appellant filed a defence on 8th April 2013 which he amended on 14th January 2020 to incorporate a counterclaim. In substance he denied the fraud alleged; pleaded, in the alternative, that the 2nd Respondent was the first registered owner of the suit property so that the title could not be impeached on the ground of fraud; pleaded, in the further alternative, that he was an innocent purchaser for value without notice of any defect in title; and pleaded, in the further alternative, that the 1st Respondent had no locus standi to sue or claim on behalf of one William Arego Jawuor. By way of counterclaim against the 2nd Respondent and against the 3rd and 4th Respondents, he sought a declaration that he is an innocent purchaser for value with no knowledge of any fraud, a permanent injunction against the 1st Respondent, and, in the alternative, compensation of Kshs. 120,000/= with interest at court rates from 29th April 1999 until payment in full. A third party notice was taken out against the 3rd and 4th Respondents, and by a notice of claim JUDGMENT ELCA NO. E041 OF 2023 4

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filed on 5th May 2023 the Appellant sought indemnity and contribution. 9. The 3rd and 4th Respondents entered appearance on 12th June 2020 but filed no statement of defence to the third party notice and did not participate in the trial. On 26th March 2021 the trial court directed that the case start de novo to enable the third parties cross-examine the 1st Respondent, and further directed that liability as between the defendant and the third parties be determined at the hearing of the suit. 10. PW1, Lawrence Moro Aketch, the 1st Respondent testified on 4th June 2019. He said the Wathorego adjudication took place in 1980; that parcels 1766, 1767, 1768 and 1769 were adjudicated to members of his family, 1768 being his; that one William Arego Jawuor objected before the Land Adjudication Committee and, on appeal to the Arbitration Board in cases 73/82 to 76/82, was awarded the southern portion of those parcels which was added to his parcel 1770; and that the family retained its adjudication numbers and took possession. He testified that on 12th September 1996 he obtained his title deed JUDGMENT ELCA NO. E041 OF 2023 5

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for parcel 1768, noticed that the area shown was 0.13 hectares whereas the land on the ground appeared larger, and, on being referred to the District Surveyor, obtained a map on which he found that a new parcel number 2563 had been created and superimposed on part of his land. 11. He testified that he returned to the Lands Registry and to the Land Adjudication Officer, who could not trace any record of parcel 2563 and wrote a note to file dated 15th November 1996. He then complained to the Chief of West Kajulu Location, who by a letter dated 19th March 2008 referred him to the Land Disputes Tribunal at Kisumu; and thereafter to the District Land Adjudication Officer, who on 27th April 2012 noted that the matter required investigation and advised him to seek the intervention of the court. He produced, among other documents, a demarcation sketch for parcels 2560 to 2564, mutation forms for 2563 and 1770, a title deed for 2563, a letter of 9th March 1993 written for the District Surveyor, and a report of the Provincial Surveyor dated 11th October 2013. 12. In cross-examination he made three concessions which, as will appear, are of some consequence. He said that from JUDGMENT ELCA NO. E041 OF 2023 6

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his title deed the measurement was 0.13 hectares but that the land “was however much bigger on the ground”; that he did not have a surveyor’s report to establish that his parcel was bigger; and that he was not sure whether the 2nd Respondent was ever an employee of the lands office. He also conceded that he had no letter of authority to litigate over parcel 1769. 13. PW2, Benjamin Otieno Oduge, is the Land Adjudication and Settlement Officer for Kisumu County, within whose jurisdiction the Wathorego Adjudication Section falls. His evidence cut in two directions and must be stated with care. On the one hand he told the court that he was unable to obtain any proceedings supporting the creation of parcel 2563; that there was no record showing how 2563 was carved out of 1768; that the adjudication record for 1768 disclosed no objection or case at Part 14 or Part 15; that the demarcation sketch for 2563 was blank where the neighbouring parcels ought to have appeared; that in the sketch map 2563 does not appear as bordering the 1700 series; and that after the adjudication process no other officer may carve out a new number. JUDGMENT ELCA NO. E041 OF 2023 7

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14. On the other hand, and equally clearly, PW2 testified that parcel 2563 “is an original number”, that it is “not as a result of a subdivision”, and that it “was issued before the area was finalized… of equal status with 1768. Both are originals”. He also stated that the numbers were issued by the demarcation officer and not by him. He produced PMFI 1 to PMFI 18 as PExh1 to PExh18. 15. DW1, Samuel Juma Aduda, the Appellant testified on 21st March 2023. He said that he was looking for land to purchase and was introduced to the 2nd Respondent; that he conducted an official search at the Lands Registry which revealed the 2nd Respondent as the registered proprietor; that he visited the site, which was bushy and unoccupied; that he went to the area chief, who sent elders to the ground and advised him to conduct a search; that he obtained the consent of the Land Control Board; and that he paid Kshs. 120,000/= as consideration before a Commissioner for Oaths on 29th April 1999 and obtained his title deed in June 1999. He produced a certificate of official search dated 19th April 1999 as DExh1, the Land JUDGMENT ELCA NO. E041 OF 2023 8

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Control Board consent dated 29th April 1999 as DExh2 and the sale agreement dated 29th April 1999 as DExh3. 16. He testified that he did not know the 1st Respondent at the time of purchase and did not know that the land had any issue; that it was only in 2018 that the 1st Respondent laid claim to it; and, candidly, that he had never lived on the land, never fenced it and never developed it. The Judgment of the Trial court 17. The learned trial magistrate framed three issues: whether the registration of Kisumu/Wathorego/2563 was proper and regular; whether the 2nd defendant was an innocent purchaser for value; and who should bear the costs of the suit. 18. On the first issue he relied on the evidence of PW2 that there were no records to show how parcel 2563 was created and that no proceedings were available to confirm or explain its existence, and concluded: “This is sufficient proof that the suit land was fraudulently curved out of parcel land number 1768.” JUDGMENT ELCA NO. E041 OF 2023 9

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19. On the second issue he held that “the 2nd defendant did not avail any title as proof of ownership of the suit land”, and, invoking Munyu Maina v Hiram Gathiha Maina [2013] eKLR, held that the Appellant had a duty to investigate the truthfulness of the title held by the 2nd Respondent. 20. He accordingly granted the declaration sought, directed that the Appellant’s name be deleted from the register, issued a permanent injunction against the Appellant, held in a single sentence that the counterclaim fails, and awarded the 1st Respondent “costs of the suit and interest”. The decree extracted on 10th July 2023 mirrors those orders. The Appeal 21. The Memorandum of Appeal raises seven grounds, which may be compressed as follows: that the learned magistrate erred in failing to hold that the suit was timebarred under section 7 of the Limitation of Actions Act, Cap. 22, and that the court therefore had no jurisdiction; that he erred in finding that the Appellant was not an innocent purchaser for value without notice, thereby JUDGMENT ELCA NO. E041 OF 2023 10

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impugning the Appellant’s right to property and the sanctity of title contrary to Article 40(6) of the Constitution and sections 24 and 26 of the Land Registration Act; that he erred in failing to acknowledge the legitimacy of the Appellant’s title in the absence of proof to the contrary; that he erred in dismissing the counterclaim without considering its merits; that he erred in finding that parcel 2563 was carved out of parcel 1768 when the parcels are distinct and were marked and mapped at adjudication; that he erred in entertaining the reliefs sought when the 1st Respondent had no locus standi to claim on behalf of William Arego Jawuor, the owner of parcel 1769; and that he erred in failing to consider the entire evidence on record. Submissions 22. The Appellant filed written submissions dated 6th June 2026 through M/s Owiti, Otieno & Ragot Advocates, together with a supplementary record of appeal dated 9th June 2026 containing the certified proceedings of the trial court. Counsel submits that the right of action accrued no later than 12th JUDGMENT ELCA NO. E041 OF 2023 September 1996, when the 1st 11

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Respondent discovered the alleged fraud, so that the twelve-year period expired in September 2008 and the suit filed in 2013 was out of time; that recourse to the Chief, the Land Disputes Tribunal and the adjudication office did not stop time running; that parcel 2563 was a first registration in the name of the 2nd Respondent effected on 29th November 1994 and, by force of section 143(1) of the repealed Registered Land Act, was immune from rectification; that fraud was neither particularised against the Appellant nor strictly proved; that the claim of excision is inherently spatial and could only be proved by a ground survey, which was never produced; that the Registry Index Map shows the 2500 series and the 1700 series to lie in different locations; that the Appellant is an innocent purchaser for value protected by sections 26(1) and 80(2) of the Land Registration Act; that the 1st Respondent lacked locus standi in respect of parcel 1769; and that the counterclaim and third party claim were not determined at all. 23. Counsel relies, among other authorities, on Munene v Njoka & another (Environment and Land Appeal JUDGMENT ELCA NO. E041 OF 2023 12

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E005 of 2021) [2024] KEELC 828 (KLR), Justus Tureti Obara v Peter Koipeitai [2014] eKLR, John Teleyio Ole Sawoyo v David Omwenga Maombe, Civil Appeal No. 297 of 2009, Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 others [2015] eKLR, Alice Chemutai Too v Nickson Kipkurui Korir & 2 others [2015] eKLR, Harrison Kiambuthi Wanjiru & another v District Land Registrar Nairobi & 3 others [2022] eKLR and Joseph Mukuna v National Bank of Kenya Ltd & another [2004] eKLR. 24. The 3rd and 4th Respondents filed written submissions dated 17th August 2026 through Ms. Maryanne Omondi, Senior Litigation Counsel. Unusually, but not improperly, they support the appeal. Their submissions are confined to a single issue, namely limitation. They contend that the right of action accrued in 1996, that the suit filed seventeen years later offends section 7 as read with section 9(1) of the Limitation of Actions Act, that section 26 cannot cure it, and that the suit ought to have been struck out. They rely on Mehta v Shah [1965] EA 321, Iga v Makerere JUDGMENT ELCA NO. E041 OF 2023 University [1972] EA 65, 13

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Sohanlaldurgadass Rajput & another v Divisional Integrated Development Programmes Co. Ltd [2021] eKLR and Kober & 2 others v Korkoren (Chairman) & another [2023] KEELC 18168 (KLR). 25. The 1st Respondent filed written submissions dated 9th September 2026 through M/s D. O. E. Anyul & Company Advocates. He opposes the appeal and asks that it be dismissed with costs and the judgment of the subordinate court upheld. His argument may be reduced to four propositions. First, that his claim before the trial court was uncontroverted on the facts and was correctly determined under section 26(1) and (2) of the Land Registration Act. Secondly, that he was categorical in his evidence, and was not contradicted by the Appellant, that at the time of adjudication the parcels were both mapped and marked as bordering Kisumu/Wathorego/1711. Thirdly, that the learned trial magistrate, having seen and heard PW2 and having found that the witness could not explain how the suit parcel came to be carved out of the original parcel, how a number in the 2500 series came to appear within the 1700 series, or why no objection proceedings appear JUDGMENT ELCA NO. E041 OF 2023 14

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on the sketch map, and could produce no history or background of the parcel at all, was entitled to treat that evidence as sufficient proof of fraud. Fourthly, that the Appellant, whose root of title was under challenge, was bound by Munyu Maina v Hiram Gathiha Maina (Supra) [2013] eKLR to go behind the instrument of title and prove the legality of his acquisition, and that, having had every opportunity to investigate the title he was buying from the 2nd Respondent, he cannot now claim the protection the law accords an innocent purchaser. 26. To those propositions counsel adds two further points. He submits that equity does not aid the indolent, relying on Amina Karama v Njagi Gachangua & 3 others [2020] eKLR, a decision in which an injunction was refused to a plaintiff who had allowed some fourteen years to pass before coming to court. And he submits that the Appellant, having taken out a notice claiming to be indemnified, never pursued it, and that the notice of indemnity is the proper avenue for any grievance the Appellant may have about the state of the title he acquired. JUDGMENT ELCA NO. E041 OF 2023 15

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27. Three silences in those submissions should be noted at the outset. The 1st Respondent does not address the plea of limitation, although it is the first ground in the Memorandum of Appeal and was the only issue canvassed by the 3rd and 4th Respondents. He does not address the challenge to his locus standi in respect of parcel Kisumu/Wathorego/1769. And, beyond the point about the notice of indemnity, he does not address the complaint that the counterclaim and the third party claim went undetermined. The 2nd Respondent has, as in the trial court, taken no part in these proceedings. I have approached the appeal on the footing that the burden of demonstrating error lies on the Appellant, and I have not treated the 1st Respondent’s silence on those matters as a concession. Issues for determination 28. Having considered the Memorandum of Appeal, the record, and the submissions of the Appellant, of the 1st Respondent and of the 3rd and 4th Respondents, the issues that arise for my determination are as follows: JUDGMENT ELCA NO. E041 OF 2023 16

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(i) Whether the 1st Respondent’s claim before the trial court was statute-barred by virtue of sections 7 and 26 of the Limitation of Actions Act, Cap. 22; (ii) Whether the title to Kisumu/Wathorego/2563 was a first registration and, if so, the effect of section 143(1) of the repealed Registered Land Act; (iii) Whether the 1st Respondent proved fraud to the standard required by law; (iv) Whether the Appellant’s title was liable to be impeached under section 26(1) of the Land Registration Act; (v) Whether the 1st Respondent had locus standi to seek relief in respect of Kisumu/Wathorego/1769; (vi) Whether the trial court determined the counterclaim and the third party claim, and what orders should follow; and (vii) What orders should issue as to costs. Analysis and determination (i) Whether the claim was statute-barred 29. Section 7 of the Limitation of Actions Act provides that 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. Section JUDGMENT ELCA NO. E041 OF 2023 17

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9(1) provides that where the person bringing the action has been in possession and has, while entitled to the land, been dispossessed or discontinued his possession, the right of action accrues on the date of the dispossession or discontinuance. Section 26 provides that where an action is based upon the fraud of the defendant or his agent, or where the right of action is concealed by such fraud, or where 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. 30. The relief the 1st Respondent sought was a declaration that parcel 2563 was fraudulently created and forms part of parcels 1768 and 1769, cancellation of the register and deletion of the Appellant’s name, and a permanent injunction. Whatever its form, the substance of that claim is the recovery of a portion of land said to have been excised from the 1st Respondent’s parcel and vested in another. Section 7 therefore governs it. 31. Because fraud was pleaded, the proviso in section 26 applies, and time did not begin to run until discovery. The JUDGMENT ELCA NO. E041 OF 2023 18

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date of discovery is not, on this record, a matter of speculation. It was fixed by the 1st Respondent’s own sworn testimony. He told the trial court that on 12th September 1996 he obtained his title deed, observed the discrepancy in acreage, went to the District Surveyor, obtained the map and there found that parcel 2563 had been created and superimposed on part of his land. That is discovery in the fullest sense contemplated by section 26. If any further confirmation were needed, the Land Adjudication Officer’s note to file recording the absence of any record for parcel 2563 is dated 15th November 1996. 32. Taking the later of those two dates, the twelve-year period expired on or about 15th November 2008. The Plaint is dated 4th February 2013 and was filed in the High Court at Kisumu in February 2013. The suit was therefore instituted more than four years after the limitation period had run out. 33. I have considered whether the 1st Respondent’s recourse to the Lands Registry, the Chief, the Land Disputes Tribunal and the District Land Adjudication Officer between 1996 and 2012 operated to suspend the running JUDGMENT ELCA NO. E041 OF 2023 19

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of time. It did not. The Limitation of Actions Act specifies with precision the circumstances in which time is postponed or suspended disability under section 21, and fraud, concealment and mistake under section 26. The pursuit of administrative or extra-judicial remedies is not among them. I respectfully adopt the reasoning in Munene v Njoka & another (Environment and Land Appeal E005 of 2021) [2024] KEELC 828 (KLR), where it was held that once fraud is discovered, time begins to run from the moment of discovery, and the pursuit of complaints before administrative bodies thereafter does not arrest it. I would add that the Land Disputes Tribunal to which the 1st Respondent was referred had in any event no jurisdiction to determine questions of title or fraud affecting title, which is precisely why he was ultimately sent back to court. 34. One matter requires candid treatment. Limitation was not pleaded in the Appellant’s defence or in his amended defence and counterclaim. Indeed, at paragraph 11 of the amended defence the Appellant expressly admitted the jurisdiction of the trial court. Section 39 of the Limitation JUDGMENT ELCA NO. E041 OF 2023 20

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of Actions Act provides that the Act does not operate as a defence unless it is expressly pleaded, and Order 2 rule 4 of the Civil Procedure Rules requires a party to plead specifically any ground of defence which, if not raised, would take the opposite party by surprise. 35. I have not found that omission to be fatal, for three reasons. First, the question of limitation goes to the jurisdiction of the court. As was held in Bosire Ongero v Royal Media Services Limited [2015] eKLR, where a matter is statute-barred the court is without jurisdiction to entertain it; and jurisdiction, as Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1 teaches, is everything, cannot be conferred by consent or admission, and once its absence is apparent the court must down its tools. The admission at paragraph 11 of the amended defence therefore takes the matter no further. Secondly, no question of surprise or prejudice arises here, because the facts founding the plea come not from any evidence led by the Appellant but from the 1st Respondent’s own testimony in chief; there is nothing further he could have said in answer that he did not have JUDGMENT ELCA NO. E041 OF 2023 21

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the opportunity to say. Thirdly, and in any event, the point has been fully argued before me by the Appellant and by the 3rd and 4th Respondents, and the 1st Respondent, who has filed written submissions in opposition to the appeal, has not sought to answer it. 36. I should not be understood as encouraging the practice of raising limitation for the first time on appeal. Where the plea depends on facts that must be established by evidence, section 39 will ordinarily preclude a party who has not pleaded it. This case falls on the other side of the line only because the material date emerged from the plaintiff’s own mouth and is not in dispute. 37. Before leaving this issue I must deal with the one submission of the 1st Respondent which touches, if only obliquely, upon delay. He invokes the maxim that equity aids the vigilant and not the indolent, and relies upon Amina Karama v Njagi Gachangua & 3 others (Supra) [2020] eKLR, where the court declined an injunction because the plaintiff had allowed some fourteen years to pass before seeking redress and had offered no plausible explanation for the delay. The maxim is sound JUDGMENT ELCA NO. E041 OF 2023 22

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and the authority is apposite, but both tell against the party who invokes them. It was the 1st Respondent who discovered the existence of parcel 2563 in September 1996 and who came to court in February 2013, seventeen years later. The Appellant bought and was registered in 1999 and was brought to court in 2013 to answer for a transaction by then fourteen years old. If indolence is to be visited upon anyone on this record, it is not upon the Appellant. 38. I therefore find that the 1st Respondent’s suit was, at the time of its institution, barred by section 7 as read with section 26 of the Limitation of Actions Act, and that the trial court had no jurisdiction to entertain it. The first ground of appeal succeeds. 39. That finding is sufficient to dispose of the appeal. But because the appeal was fully argued, because the trial court made findings on the merits which would otherwise stand unexamined, and because the Appellant’s counterclaim requires disposal in any event, I proceed to consider the remaining issues. JUDGMENT ELCA NO. E041 OF 2023 23

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(ii) First registration and section 143(1) of the repealed Registered Land Act 40. The adjudication record and abstract of title in the record show that adjudication in respect of parcel 2563 was completed on 20th June 1992 and that the 2nd Respondent was registered as its first proprietor on 29th November 1994 under the Registered Land Act, Cap. 300 (now repealed). That the suit property was registered under the repealed Act is not in dispute. 41. Section 143(1) of that Act empowered the court to order rectification of the register by directing that any registration be cancelled or amended where it was satisfied that any registration, “other than a first registration”, had been obtained, made or omitted by fraud or mistake. The words in inverted commas placed first registrations rectification beyond jurisdiction. the That reach of provision the court’s continues to govern registrations effected under the repealed Act by force of the repeal and transition provisions of the Land Registration Act, 2012. 42. The rationale was explained by the Court of Appeal in John Teleyio Ole JUDGMENT ELCA NO. E041 OF 2023 Sawoyo v David Omwenga 24

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Maombe, Civil Appeal No. 297 of 2009. The court observed that before a first registration was effected, elaborate opportunities were open to any person with a complaint at the consolidation, adjudication and registration stages, before the Arbitration Board, on appeal to the Minister, and ultimately by way of judicial review and that at the conclusion of that process it was necessary to protect the final register. 43. I must, however, record that the Appellant’s reliance on Sawoyo case is only partially sound. In the very passage he quotes, the Court of Appeal went on to observe that the complaint before it was “not envisaged by the framers of Section 143(1)” because the process leading to that respondent being adjudicated owner had never been challenged and he had no occasion to complain at any stage he simply expected his name to appear. The 1st Respondent in this case is in the same position. He was adjudicated the owner of parcel 1768; his name duly appeared; he had no cause to object during the adjudication; and his complaint is that a wholly separate number was later superimposed on his land. To that JUDGMENT ELCA NO. E041 OF 2023 25

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extent the reasoning in Sawoyo case assists the 1st Respondent rather than the Appellant. 44. The protection conferred by section 143(1) is not, in my view, a licence to launder a registration that never issued from the adjudication machinery at all. The subsection presupposes a registration effected at the conclusion of the statutory process; a purported first registration which is shown to be no part of that process is not a first registration within the meaning of the section, and the protection cannot attach to it. 45. Whether parcel 2563 was such a registration was therefore a question of fact for the 1st Respondent to prove. He did not prove it. On the contrary, his own witness, PW2, the Land Adjudication and Settlement Officer and the custodian of the records, told the court in terms that 2563 is an original number, that it is not the result of a subdivision, that it was issued before the area was finalised, and that it is of equal status with 1768, both being originals. That evidence, unretracted and unqualified in re-examination, is fatal to the proposition that the registration lay outside the adjudication process. JUDGMENT ELCA NO. E041 OF 2023 26

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Nor is that evidence any longer in contest. The submissions filed on behalf of the 1st Respondent themselves record, in terms, that “parcel No. 2563 is an original number”. 46. It follows that the registration of the 2nd Respondent as proprietor of Kisumu/Wathorego/2563 on 29th November 1994 was a first registration within section 143(1) of the repealed Act, and that the trial court had no power to order the rectification which it ordered. The second and fifth grounds of appeal succeed. I emphasise that I decide this narrow point only; I express no view on whether a first registration procured by fraud practised outside the adjudication machinery altogether would attract the protection of the section, since no such fraud has been proved here. (iii) Whether fraud was proved 47. By sections 107 and 109 of the Evidence Act, the burden of proving fraud lay squarely on the 1st Respondent, who asserted it. It is trite that an allegation of fraud must be specifically pleaded, properly particularised, and strictly proved to a standard higher than the ordinary balance of JUDGMENT ELCA NO. E041 OF 2023 27

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probabilities, though not as high as proof beyond reasonable doubt. 48. That threefold requirement is long established: see Ratilal Gordhanbhai Patel v Lalji Makanji [1957] EA 314, Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 others [2015] eKLR and Kinyanjui Kamau v George Kamau [2015] eKLR. The three requirements are cumulative; failure on any one is fatal. 49. Applying that standard to the record, I make the following findings. 50. First, the particulars of fraud pleaded at paragraph 7 of the Plaint were directed exclusively at the 2nd Respondent. Not a single particular of fraud was pleaded against the Appellant. No fraud having been pleaded against him, none could be found against him. 51. Secondly, the substance of the case against the 2nd Respondent was that he worked at the Lands Registry and used his position to create the suit parcel. That assertion was never supported by any evidence at all. No employment record was produced. No officer of the Lands JUDGMENT ELCA NO. E041 OF 2023 28

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Registry was called. On the contrary, the 1st Respondent himself conceded in cross-examination that he was not sure whether the 2nd Respondent was an employee of the lands office. A bare assertion of that character cannot discharge the heightened burden that attends an allegation of fraud. 52. Thirdly, and most importantly, the 1st Respondent’s case is at bottom a spatial one. It asserts that a portion measuring some 0.13 hectares was physically excised from his parcel on the ground. A claim of that nature is capable of objective proof, and ordinarily of only one kind of proof: a report by a qualified surveyor who visits the ground, takes measurements, and demonstrates that the parcel as occupied does not correspond with the parcel as titled, and that the difference is accounted for by the suit parcel. No such report was placed before the trial court. The 1st Respondent said so himself in cross-examination. What was produced was a report of the Provincial Surveyor dated 11th October 2013, which, on the 1st Respondent’s own account of it, went no further than to state that his land “should reach and border 1770”. That is JUDGMENT ELCA NO. E041 OF 2023 29

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an opinion about where a boundary ought to lie; it is not a measurement establishing an excision. It was, moreover, produced through PW2, who was not its author and was in no position to speak to its contents. 53. Fourthly, the trial court’s reasoning on this issue is, with respect, a non sequitur. The learned magistrate took PW2’s inability to locate any record explaining the creation of parcel 2563 and concluded that this was “sufficient proof that the suit land was fraudulently curved out of parcel land number 1768”. It was not. The absence of a record is not evidence of the presence of fraud. At its very highest, PW2’s evidence establishes an unexplained lacuna in the adjudication records of the Wathorego Section. A lacuna may be the product of fraud; it may equally be the product of administrative error, of loss of documents over three decades, or of the imperfections that attended the record-keeping of that era. To move from “the record does not explain this” to “this was fraudulently done, and done by this named individual” is to reverse the burden of proof and to convert a heightened standard into no standard at all. JUDGMENT ELCA NO. E041 OF 2023 30

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54. Fifthly, the trial court did not confront the evidence of its own plaintiff’s witness that ran against the pleaded case. PW2’s evidence that 2563 is an original adjudication number and not a subdivision is irreconcilable with the theory that it was carved out of 1768 and 1769. So too is the 1st Respondent’s own evidence in cross-examination that parcel 2563 does not appear on Map No. 5 where he expected it, and his acceptance that the neighbouring parcels shown in the demarcation sketch for 2563 belong to the 2500 series. A first appellate court is not entitled to ignore such conflicts, and neither was the trial court entitled to pass over them in silence. 55. Sixthly, the submissions now filed on behalf of the 1st Respondent do not repair any of these difficulties, and in one respect they deepen them. Counsel submits that the claim was uncontroverted. It was not. It was met by a defence and a counterclaim, by the sworn evidence of DW1, Samuel Juma Aduda, and by documentary exhibits going to the circumstances of the purchase. More fundamentally, a party who carries the burden of proof does not discharge it by characterising his opponent’s JUDGMENT ELCA NO. E041 OF 2023 31

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answer as thin; he discharges it by adducing evidence of his own. Counsel next submits that the learned magistrate was entitled to treat PW2’s inability to explain the origin of parcel 2563 as sufficient proof of fraud. That is the very reasoning I have found to be a non sequitur, and its repetition in submissions does not mend it. And counsel accepts, in terms, that “parcel No. 2563 is an original number”. That concession is made by the very party who asserts that the parcel was carved out of another, and it cannot stand with the assertion. It is also, I note, no more than a faithful reflection of what PW2, Benjamin Otieno Oduge, the custodian of the adjudication records, told the trial court on oath. 56. Seventhly, counsel submits that the 1st Respondent was categorical, and uncontradicted, that at the time of adjudication the parcels were both mapped and marked as bordering Kisumu/Wathorego/1711. Taken at its highest, that is an assertion by an interested party as to where a boundary lay some four decades before he testified. It is not a measurement, it is not a survey, and it is not corroborated by JUDGMENT ELCA NO. E041 OF 2023 any document in the record. A 32

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recollection of that character, however honestly held, cannot establish that a defined portion of land was physically excised from one parcel and absorbed into another. The point is not that the 1st Respondent is disbelieved. It is that a spatial claim requires spatial proof, and none was offered. 57. I therefore find that the 1st Respondent did not prove fraud to the standard the law requires, whether against the 2nd Respondent or, still less, against the Appellant. The finding of the trial court to the contrary was based on a misapprehension of the evidence and on a wrong principle, and cannot stand. The third and seventh grounds of appeal succeed. (iv) Section 26(1) of the Land Registration Act and the Appellant’s title 58. Section 26(1) of the Land Registration Act provides that a certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer, shall be taken by all courts as prima facie evidence that the person named as proprietor is the absolute and indefeasible owner, and that the title of that proprietor JUDGMENT ELCA NO. E041 OF 2023 33

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shall not be subject to challenge except on the ground of fraud or misrepresentation to which the person is proved to be a party, or where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 59. As to the first limb, the position is settled: a person who seeks to impeach a title on the ground of fraud or misrepresentation must prove that the title holder was a party to that fraud or misrepresentation see Alice Chemutai Too v Nickson Kipkurui Korir & 2 others [2015] eKLR. No fraud whatsoever was pleaded or proved against the Appellant. The first limb is therefore unavailable to the 1st Respondent. 60. The second limb is not concerned with the innocence of the proprietor at all. As Munyao, J (As he then was) explained in Elijah Makeri Nyangwara v Stephen Mungai Njuguna & another [2013] eKLR, where the title is shown to have been acquired illegally, unprocedurally or through a corrupt scheme, it is the title itself that is impugned, and it is no answer for the proprietor to say that he came to it innocently. The JUDGMENT ELCA NO. E041 OF 2023 34

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Appellant’s submission that his status as a purchaser for value without notice is, without more, a complete answer therefore overstates the position. 61. But the second limb still requires proof, and to the same heightened standard, that the root title was acquired illegally, unprocedurally or corruptly. For the reasons I have given under the previous issue, that was not proved. What the record establishes is an unexplained gap; what it does not establish is illegality or irregularity in the creation of parcel 2563, still less a corrupt scheme. 62. There remains the trial court’s treatment of Munyu Maina v Hiram Gathiha Maina (Supra) [2013] eKLR. The principle there stated is unimpeachable: where a registered proprietor’s root of title is under challenge, it is not enough to dangle the instrument of title; the proprietor must go behind it and demonstrate the legality of his acquisition. The difficulty is that the learned magistrate applied it upon a premise that the record does not support. He held that “the 2nd defendant did not avail any title as proof of ownership of the suit land”. That is plainly wrong. The Appellant’s proprietorship was common JUDGMENT ELCA NO. E041 OF 2023 35

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ground the 1st Respondent’s own second prayer sought an order deleting the Appellant’s name as the registered proprietor of Kisumu/Wathorego/2563, and the 1st Respondent himself produced the title deed for that parcel as an exhibit. Nor did the Appellant rest on the instrument alone: he produced a certificate of official search dated 19th April 1999, the Land Control Board consent dated 29th April 1999 and the sale agreement of the same date, and he gave evidence of a visit to the site and of enquiries made through the area chief and the elders. He did, in short, exactly what Munyu Maina requires. 63. The 1st Respondent, for his part, presses Munyu Maina v Hiram Gathiha Maina (Supra) [2013] eKLR as the complete answer to this appeal. It is not. The principle in that case operates where the root of title is under challenge upon material capable of sustaining the challenge; it is not a rule that a registered proprietor must, on demand and without more, justify his title afresh whenever it is questioned. Here the 1st Respondent adduced nothing capable of shifting the evidential burden onto the Appellant: his own witness testified that the suit JUDGMENT ELCA NO. E041 OF 2023 36

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parcel is an original adjudication number of equal status with his own. And in any event the Appellant did go behind his instrument. He produced the certificate of official search that preceded his purchase, the consent of the Land Control Board and the sale agreement, and he gave evidence of his visit to the land and of the enquiries he made of the area chief and of the elders who were sent to the ground. What further step the law required of a purchaser in April 1999 was not identified in argument, and I have not been able to identify it for myself. 64. I add, for completeness, that the 1st Respondent’s reliance on section 26(2) of the Land Registration Act is misplaced. That subsection is concerned with the receipt in evidence of certified copies of registered instruments. It has nothing to say about the indefeasibility of a title or about the grounds upon which a title may be impeached, and it affords the 1st Respondent no assistance. 65. That misapprehension was material. It led the trial court to apply a correct principle to a state of facts which did not exist. The finding that the Appellant was not a purchaser JUDGMENT ELCA NO. E041 OF 2023 37

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for value without notice cannot stand, and the second and third grounds of appeal succeed. (v) Locus standi in respect of parcel 1769 66. The first prayer in the Plaint, and the first order in the decree, declare parcel 2563 to form part of “title number Kisumu/Wathorego/1768 and 1769”. Parcel 1768 is the 1st Respondent’s own. Parcel 1769 is not. On the 1st Respondent’s own evidence it belonged to his brother, Michael Odero Ogola, and the demarcation sketch on which he relied records the adjoining proprietor as William Arego. Neither the proprietor of 1769 nor his personal representative was joined as a party, and the 1st Respondent conceded in cross-examination that he had no letter of authority to litigate in respect of that parcel. 67. A litigant may not obtain relief in respect of another person’s registered interest unless he sues in a representative capacity properly constituted under Order 1 of the Civil Procedure Rules, or holds a grant of representation, or is otherwise clothed with authority. None of those conditions was satisfied. To the extent that the decree of the trial court purports to declare that parcel JUDGMENT ELCA NO. E041 OF 2023 38

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2563 forms part of parcel Kisumu/Wathorego/1769, it was made in favour of a person not before the court and in respect of an interest the 1st Respondent had no standing to assert. That part of the decree cannot stand in any event. The sixth ground of appeal succeeds to that extent. (vi) The counterclaim and the third party claim 68. The Appellant’s complaint under this head is well founded and, if I may say so, was unanswerable. A counterclaim is an independent cause of action. It is pleaded, it attracts its own reliefs, and it must be adjudicated on its own merits whatever the fate of the plaint. So too must a third party claim, particularly where the trial court has itself directed, as this court did on 26th March 2021, that liability as between the defendant and the third parties be determined at the hearing of the suit. 69. Order 21 rule 4 of the Civil Procedure Rules requires that a judgment contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for that decision. The learned magistrate framed three issues, none of which touched the counterclaim or the third party JUDGMENT ELCA NO. E041 OF 2023 claim. He then disposed of the 39

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counterclaim in five words: “The 2nd defendant’s counterclaim fails.” No reason is given. The third party claim is not mentioned at all. A party who has come to court with a pleaded claim, has paid for it, and has litigated it for years, is entitled to know why he has lost. The fourth ground of appeal succeeds. 70. The 1st Respondent’s answer to this complaint is that the Appellant took out a notice claiming to be indemnified but never pursued it. That answer is neither open to him nor borne out by the record. It is not open to him because the third party claim was directed at the 3rd and 4th Respondents and not at him; a plaintiff cannot abandon, on behalf of third parties who have not appeared to say so themselves, a claim to which he is a stranger. It is not borne out by the record because the Appellant filed a notice of claim against the third parties on 5th May 2023, and because the trial court had itself directed, on 26th March 2021, that liability as between the defendant and the third parties be determined at the hearing of the suit. A court which gives such a direction must either honour it or explain why it has not. Neither course was taken. JUDGMENT ELCA NO. E041 OF 2023 40

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71. Since this is a first appeal and the evidence is before me, it would serve no purpose to remit the counterclaim for rehearing. I proceed to determine it. 72. The first prayer sought a declaration that the Appellant is an innocent purchaser for value with no knowledge of any fraud. Strictly, that plea presupposes a defect in the root title from which the purchaser needs protection. On my findings there is no proved defect from which the Appellant requires protection at all. In those circumstances the appropriate declaration is the narrower and more accurate one: that the 1st Respondent having failed to prove fraud, the Appellant’s registration as proprietor of Kisumu/Wathorego/2563 stands unimpeached and the register is not liable to rectification at the instance of the 1st Respondent. 73. The second prayer sought a permanent injunction against the 1st Respondent. I decline to grant it. A permanent injunction is a discretionary remedy and requires proof of an actual or apprehended invasion of a right. There is no evidence on this record that the 1st Respondent has entered upon, cultivated, sold or otherwise dealt with JUDGMENT ELCA NO. E041 OF 2023 41

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parcel 2563. Further, the Appellant pleaded at paragraph 18 of his counterclaim that he took possession of the property soon after obtaining title and has been in occupation to date; his own sworn evidence was that he has never lived on the land, never fenced it and never developed it. Where a party’s evidence contradicts his own pleading, the court will not exercise a discretionary jurisdiction in his favour on the strength of that pleading. The dismissal of the 1st Respondent’s suit is, in any event, sufficient protection. 74. The third prayer, for compensation of Kshs. 120,000/= with interest, was expressly pleaded in the alternative and arises only in the event that the Appellant’s title is cancelled. So too does the third party claim for indemnity founded on sections 80, 81 and 83 of the Land Registration Act. His title not having been cancelled, no right to indemnity has arisen and no question of contribution or compensation falls for determination. Those claims do not arise, and I say nothing about their merits should the occasion ever arise. JUDGMENT ELCA NO. E041 OF 2023 42

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75. One further matter on the decree below requires mention. The trial court awarded the 1st Respondent “costs of the suit and interest”. There was no monetary award in the decree upon which interest could run. An award of interest in those circumstances is meaningless and, had the decree otherwise survived, would have had to be set aside. 76. I should also deal with the interlocutory judgment entered against the 2nd Respondent on 16th April 2019. The claim against him was not a liquidated demand; it was a claim for declaratory relief and for cancellation of a register, and such a claim can only be disposed of on formal proof. The trial court, having entered interlocutory judgment “as prayed in the plaint pending formal hearing”, made no order at all against the 2nd Respondent in its final judgment or decree. In any event, the suit being statutebarred and unproved, the interlocutory judgment cannot survive the dismissal of the suit and must be set aside. (vii) Costs 77. Costs follow the event under section 27 of the Civil Procedure Act unless the court, for good reason, orders JUDGMENT ELCA NO. E041 OF 2023 43

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otherwise. I have considered whether to temper that award. The 1st Respondent is an elderly litigant who has pursued this matter with evident persistence and who was, on the record, passed from office to office over many years without receiving an answer. In the circumstances, it is hereby directed that each party shall bear own costs of the appeal and proceedings before the trial court. Final orders 78. In the result, and for the reasons set out above, I make the following orders: i. The appeal is allowed. ii. The Judgment and Decree of Hon. F. M. Rashid, Senior Principal Magistrate, delivered on 10th July 2023 in Winam CM ELC No. 109 of 2018 are hereby set aside in their entirety. iii. There shall be substituted therefor a judgment dismissing the 1st Respondent’s suit in Winam CM ELC No. 109 of 2018 with costs to the Appellant. JUDGMENT ELCA NO. E041 OF 2023 44

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iv. A declaration be and is hereby issued that the Appellant’s registration as proprietor of all that parcel of land Kisumu/Wathorego/2563 known as stands unimpeached, and that the register in respect of that parcel is not liable to rectification at the instance of the 1st Respondent. v. Each party shall bear own costs of the Appeal and costs before the trial court. DATED, SIGNED AND DELIVERED AT KISUMU THIS 30TH DAY OF SEPTEMBER 2026. E. K. WABWOTO JUDGE In the presence of: Mr. Kapinde for the Appellant. Mr. Anyul for the 1st Respondent. N/A for the 2nd Respondent Ms. Omondi for the 3rd and 4th Respondents. Court Assistant; Joanne Omondi. JUDGMENT ELCA NO. E041 OF 2023 45

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