Dido (Suing on Her Own Behalf and on Behalf of 17 others) v Stima Investment Co-operative Society Ltd & 2 others (Civil Appeal E001 of 2022) [2025] KECA 1709 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed eighteen occupants' bid to overturn a buyer's Kshs107 million Lamu land title, confirming you cannot raise new fraud claims on appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st respondent's title to the suit property was acquired irregularly or fraudulently, and whether the learned Judge was at fault in upholding it
- 2.Whether the appellants' claim of ancestral rights over the suit property or their continued occupation thereof defeated the 1st respondent's title thereto
- 3.Whether the respondents effectively defended the appellants' claims in Malindi ELC Case Nos. 109 and 110 of 2016
- 4.Whether the learned Judge misapprehended the appellants' defences and counterclaims against the respondents
- 5.Whether the learned Judge was at fault in dismissing the appellants' claims
Key legal issues
#Whether the 1st respondent's title was fraudulently or irregularly acquired
The ground fails; the illegality and lack-of-public-participation allegations were never pleaded at trial and were raised for the first time on appeal, and the property was public land lawfully granted to Omar and transferred to the 1st respondent.
The court found that the plaint in ELC Case No. 110 of 2016 pleaded only 'ancestral home' claims and never particulars of illegality, public participation, survey or advertisement. Raising such matters in written submissions was evidence from the bar. The Grant by the President, registered under the Registration of Titles Act in 2013 and transferred to the 1st respondent in 2015, was unimpeached. The court also pronounced that the land fell under Article 62 (public land), not Article 63 (community land).
Whether the 1st respondent was a bona fide purchaser for value
Yes. It acquired a valid and legal title, conducted a search, and paid Kshs107,250,000 before any suit raising ownership concerns had been filed.
Applying Samuel Kamere v Land Registrar, the court found that at the time of the sale agreement (10th July 2015) and registration (18th December 2015), none of the suits in issue had been filed. The 1st respondent undertook a search confirming the vendor's registration and paid valuable consideration. The appellants' contention of lack of bona fides was unsubstantiated.
Whether ancestral-rights claims or long occupation defeated the title
No. In the absence of evidence of illegality or that the land was trust land, the claim fails; in any event, occupation cannot found adverse possession over public land.
Since the title was indefeasible and held by a bona fide purchaser for value, the appellants' ancestral-rights claim could not stand. Their occupation, however long, could not ripen into adverse possession because such rights do not avail against public land, and no formal adverse-possession claim had in any event been pleaded, only inferred from long occupation.
Whether the respondents effectively defended the appellants' claims in Malindi ELC Case Nos. 109 and 110 of 2016
Nothing turns on the point: ELC Case No. 109 of 2016 was struck out and none of the respondents was party to it; by agreement the consolidated causes proceeded on the pleadings as filed, and consolidation made the petition effectively a defence to ELC Case No. 110 of 2016.
The trial court's directions on consolidation recorded the parties' agreement to maintain status quo and proceed to hearing on exchanged documents. Parties were bound by their pleadings, per the Mutinda Mule and Odinga authorities; the court could not permit them to depart from that agreed procedure to allege absence of defences.
Whether the learned Judge misapprehended the defences and counterclaims and was at fault in dismissing the appellants' claims
No. The impugned judgment disclosed a meticulous analysis of the evidence; the only counterclaim lay in the struck-out ELC Case No. 109 of 2016, and Omar had no locus standi to maintain that suit.
A trial judge is not obligated to provide a detailed transcript of every element of the evidence considered. The counterclaim asserted against Omar in ELC Case No. 109 of 2016 perished with the striking out of that suit; besides, the suit was filed in 2016 after Omar ceased to be registered proprietor in 2015, so no cause of action lay.
Legal principles established
#- A party cannot raise allegations of illegality in acquisition of title for the first time on appeal where they were never pleaded or placed in issue at trial; submissions of counsel do not constitute pleadings or evidence.
- Adverse possession cannot be used to acquire title to public, trust or government-owned land, however long the occupation.
- A registered proprietor acquires an absolute and indefeasible title under Section 26 of the Land Registration Act only if the allocation was legal, proper and regular, and a purchaser is a bona fide purchaser for value only upon proof of valid title, due diligence and valuable consideration.
- Parties are bound by their pleadings; evidence at variance with the pleadings goes to no issue and must be disregarded, and the effect of consolidation is that each party's pleading constitutes the other's defence.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment and decree of the ELC (J. O. Olola, J.) delivered on 17th March 2022 is upheld
- 3.The appellants shall bear the 1st and 3rd respondents' costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court at Malindi
- ELC Petition No. 13 of 2016 (consolidated with ELC Case No. 110 of 2016)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statutory framework (not expressly cited in the judgment)
- Consolidated with
- Malindi ELC Case No. 110 of 2016 – Taumu Somobwana Bakari & 65 Others v Ahmed Momhamed Omar & 5 Others
Relief refused
#Appellants' challenge to the 1st respondent's title as fraudulently/irregularly acquired and as trust or community land
Illegality and trust-land claims were never pleaded or supported by evidence; the property was public land, the 1st respondent was a bona fide purchaser for value, and the appeal raised matters not before the trial court
Costs
The appellants shall bear the 1st and 3rd respondents' costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having carefully considered the record of appeal, the grounds on which it is anchored, the impugned judgment, the respective submissions, the cited authorities and the law, we find that the appeal fails and is hereby dismissed in its entirety. Consequently, the judgment and decree of the ELC (J. O. Olola, J.) delivered on 17th March 2022 is hereby upheld.
The appellants shall bear the 1st and 3rd respondents' costs of the appeal. Orders accordingly.
Accordingly, the ground of appeal founded on the alleged illegality in acquisition of the 1st respondent's title to the suit property does not hold.
In principle, adverse possession cannot be used to acquire title to public, trust or government-owned land.
Thus having acquired such a title it is presumed to be valid and it was therefore incumbent upon the parties disputing the same to demonstrate that it was acquired illegally or without complying with due process.
To submit as counsel did this late in the day that the suit property was trust or community land held by the 3rd respondent for the benefit of the appellants and the other claimants in ELC Case No. 110 of 2016 is, with all due respect, evidence from the bar.
Issues in the judgment
#Internal inconsistency in the record: paragraph 27 states the Grant to Omar was registered on 24th June 2013, while paragraph 24 refers to 'the Grant to Omar in 2013' yet paragraph 18 of the impugned judgment (quoted) records that 'the land had been so registered as early as 1998 even though the title was issued much later' - an unexplained discrepancy in the dates of registration of the original title.
Dating anomaly in the replying affidavits: the 2nd respondent's affidavit of Brian Ikol is described as 'sworn on 5th August 2015' and the 3rd respondent's affidavit of Florence Ndung'u as 'sworn on 5th September 2015', yet both respond to a petition dated 27th July 2016.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dido (Suing on Her Own Behalf and on Behalf of 17 others) v Stima Investment Co-operative Society Ltd & 2 others (Civil Appeal E001 of 2022) [2025] KECA 1709 (KLR)", Case Analysis (2025). Civil Appeal (Malindi ELC Petition No. 13 of 2016 / ELC Case No. 110 of 2016 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1709/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.