Evangeline Nyegera v Godwin Gachagua Githui [2020] KEELC 3618 (KLR)

The suit has a long history including an appeal being Civil Appeal No. 28 of 2016, in which the defendant never raised the issue of lack of letters of administration. Having all along proceeded on the understanding that the plaintiff sued as wife and administrator of the deceased's estate, the defendant is estopped from raising the objection at this late stage. The ground was therefore found to have no basis and was rejected.

Section 7 bars actions to recover land after 12 years. The plaintiff filed HCC No. 276 of 1989 challenging the defendant's claim, which remained active until its dismissal for want of prosecution in 2009, and the present suit was filed in 2010. The continuity of litigation meant the limitation period never ran out before a claim was brought, so the defence of limitation failed.

The Court of Appeal in Civil Appeal No. 28 of 2016 between the same parties had determined that the secondary documents could be adduced and the defendant be given an opportunity to cross-examine on them. The defendant chose not to attend court during the hearing, forfeiting that opportunity, and could not therefore fault the documents at submissions stage.

Section 26(1) protects title except where acquired by fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme. While the defendant was not shown to be a party to the fraud, the plaintiff traced the genesis and history of her acquisition of Plot 862, PW2's evidence was instrumental, and the defendant failed to explain how he acquired title. The title, to the extent it covered the parcel occupied by the plaintiff, was obtained illegally.