John Riungu M'Mutea & 5 Others v Gladys Njeri Waruiru & Another

The court applied the Owners of Motor Vessel 'Lillians' principle that jurisdiction is everything and must be acquired before judgment. The plaint sought cancellation of title and rectification of the register over land, which is a dispute relating to title to land. Article 162(2)(b) and Section 13(1) of the Environment and Land Court Act confer original jurisdiction over such disputes, so the objection to jurisdiction failed.

Relying on Order 1 rule 9 of the Civil Procedure Rules and William Kiprono Towett v Farmland Aviation, the court held that misjoinder or non-joinder cannot defeat a suit. Article 159(2)(d) enjoins courts to disregard procedural technicalities and DT Dobie supports sustaining rather than terminating suits. The defendants' objection on capacity was rejected.

Fraud is a tort whose cause of action accrues when the plaintiff knew or realized the fraud. The plaintiffs knew of their claim by 1993, filed a tribunal case in 2005 and a High Court suit in 2008, both of which they acknowledged. A claim founded on tort must be brought within 3 years, and the 2021 suit was filed far beyond that period, offending Section 4(2) of the Limitation of Actions Act.

Allegations of fraud must be pleaded, particularized and strictly proved on a standard higher than balance of probabilities, per Kuria Kiarie v Sammy Magera, Vijay Morjaria and Kinyanjui Kamau v George Kamau. The only evidence established was that the land underwent adjudication and a title issued to the deceased; no sufficient evidence of collusion with adjudication officers was adduced, so the fraud claim failed.

The court found that if the plaintiffs had grievances with the adjudication and demarcation process, the Land Adjudication Act provided the dispute resolution mechanisms. They could have objected under Section 26 and appealed to the Minister under Section 29, but never exercised those rights nor explained the failure, undermining their claim.