Challo v City Chicken and Eggs Dealers Co-operative Society Limited & another (Civil Appeal 117 of 2018) [2023] KECA 244 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a buyer's land claim because he couldn't prove fraud, and the registered owner's title stood.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was time barred
The trial judge misdirected herself in holding the suit time barred; the claim was one in continuing trespass, not adverse possession, and a continuing trespass is not time barred.
The trial court applied section 7 of the Limitation of Actions Act as if the claim were one of adverse possession. The plaint pleaded trespass from 1995 to 2011. Since the 2nd respondent's occupation continued unabated, each continuance was a fresh trespass giving a new cause of action, so the suit was not barred. This finding, however, did not save the appeal because trespass itself was not proved.
Whether the tort of trespass was proved
Trespass was not proved; fraud and collusion were not proved to the required standard, and the 2nd respondent, having also purchased from the same vendor and been registered, was as much entitled to occupation as the appellant.
Sections 107 and 108 of the Evidence Act place the burden of proof on the appellant. Fraud must be distinctly pleaded and proved to a standard higher than balance of probabilities. The appellant admitted he did not know who tampered with the register. Both parties purchased from the same vendor and both were entered in the register; the vendor created two competing interests. The 2nd respondent's occupation was therefore not unauthorized trespass.
Whether the appellant was entitled to be registered as titleholder
He was not; the 2nd respondent's certificate of title was prima facie evidence of indefeasible ownership under section 26(1) of the Land Registration Act, and the appellant proved nothing improper in its acquisition.
Section 26(1) makes a certificate of title prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The appellant produced only a sale agreement and payment evidence and advanced no proof that the 2nd respondent's registration was improper. A claimant must stand on the strength of his own title.
Whether the learned judge properly evaluated the evidence
The trial judge undertook a proper evaluation of the evidence and rightly dismissed the appellant's case.
The trial court considered all the evidence, including that the vendor sold the property twice, creating competing interests, and correctly faulted the poorly maintained cooperative records for the double entry. The 1st respondent's register did not establish fraud or collusion. The appellate court, having re-evaluated the evidence itself as a first appellate court, found no misapprehension of fact or wrong principle in the trial court's findings.
Whether the failure to include the Land Registrar as a party was fatal
The amendment substituting the Land Registrar for the 1st respondent in prayer C was fatally defective because the Land Registrar was not a party and could not be condemned unheard.
Amending the plaint to direct the Land Registrar to rectify the register sought orders against a non-party. That would breach Articles 25 and 50 of the Constitution and the rules of natural justice, since the Land Registrar would not have had the right to be heard. The trial judge was right to decline to grant orders against the Land Registrar.
Legal principles established
#- Trespass to land that continues is a continuing tort, and each continuance gives rise to a fresh cause of action, so a claim in continuing trespass is not time barred.
- Fraud must be specifically pleaded with particulars and distinctly proved to a standard higher than a balance of probabilities; it cannot be left to be inferred from the facts.
- A claimant seeking a declaration of title must succeed on the strength of his own title, not on the weakness of the opponent's title, and where two parties assert competing proprietary interests each must produce evidence in support of his claim.
- A court cannot grant orders against a party who was never joined to the suit; doing so would condemn that party unheard in breach of Articles 25 and 50 of the Constitution and the rules of natural justice.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction (specific statutory provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njau & another v Nderitu[2025] KECA 2206 (KLR)10 Dec 2025followed
- Maina v Waweru & 2 others (Environment and Land Appeal 10 of 2023) [2025] KEELC 791 (KLR)[2025] KEELC 791 (KLR)19 Feb 2025
- Mwaura & another v Naserian (Legal representative of the Estate of Josephine Asiagi Kasembe) (Environment and Land Appeal E035 of 2023) [2025] KEELC 482 (KLR)[2025] KEELC 482 (KLR)12 Feb 2025
- Warrakah (Suing as the Administrator and Legal Representative of the Estate of Gakweli Mohamed Warrakah - Deceased) v Mwatsami (Civil Appeal E015 of 2020) [2024] KECA 579 (KLR)[2024] KECA 579 (KLR)24 May 2024followed
Cite this brief
#Cite this brief
Caselaw, "Challo v City Chicken and Eggs Dealers Co-operative Society Limited & another (Civil Appeal 117 of 2018) [2023] KECA 244 (KLR)", Case Analysis (2023). Civil Appeal No 117 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/244/eng@2023-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.