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ELCDismissedAppeal from Kilungu PMCC (title not stated in judgment)· [2025] KEELC 3931 (KLR)

Makilya & another v Simeon & another (Environment and Land Appeal E015 of 2022) [2025] KEELC 3931 (KLR)

High Court of Kenya
22 May 2025
EOE. O. Obaga
2,420 words in judgment
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The bottom line

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A Kenyan High Court dismissed land buyers' appeal because they could not prove payment or the fraud they alleged, even though their case was filed in time.

What this practically means

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Executive summary

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The Appellants, sisters residing in the United States and South Africa, sued the Respondents in the Kilungu Principal Magistrate's Court seeking cancellation of a title to Konza North/Konza North Block 2 (Malili) land, a declaration of ownership, a permanent injunction and general damages for fraud. Their case was that they purchased five shares from the 1st Respondent in 1996 for Kshs.64,000/= under an oral agreement, took possession of her membership card and share certificate, and that Malili Ranch Limited later converted the shares into land which the 1st Respondent fraudulently had registered in her own name in 2018. The trial magistrate dismissed the suit on 18th August 2022 for failure of proof, and the Appellants appealed on grounds that the magistrate disregarded their documents and evidence. The High Court, per Obaga J, framed two issues: limitation and proof. On limitation it held that a fraud-based claim accrues on discovery, so the 2022 suit following 2018 discovery was in time. On proof, the court found no evidence of payment of the Kshs.64,000/=, no search or title to prove the 1st Respondent's registration, and no attempt to prove the pleaded particulars of fraud, applying the principle that fraud must be distinctly alleged and distinctly proved. The burden of proof never shifted to the 1st Respondent, who denied ownership. The first appellate court, applying the retrial standard in Selle v Associated Motor Boat Company, found no merit in any ground of appeal and dismissed the appeal with costs to the 1st Respondent, affirming the trial court's judgment.

Key legal issues

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01

Whether the suit for recovery of land founded on alleged fraud was statute barred

Holding

The suit was not statute barred because the claim was based on fraud allegedly discovered in 2018 and the suit was filed in 2022, four years later

Reasoning

The alleged purchase of shares occurred in 1996, but the claim pleaded was not the 1996 contract; it was the fraudulent registration of the Respondent as owner in 2018. Since limitation in fraud runs from discovery, the four-year delay from 2018 to 2022 fell within time and the limitation defence raised in the Respondent's defence failed.

p. 3
02

Whether the Appellants proved their case on a balance of probabilities

Holding

The Appellants failed to prove the sale of shares, the payment of Kshs.64,000/=, the 1st Respondent's registration as owner of the suit property, or the pleaded fraud; the appeal was devoid of merit

Reasoning

The burden of proof lay on the Appellants and never shifted to the 1st Respondent, who denied ownership of the suit property. No search or copy of title was produced to prove registration, no evidence of payment was adduced, and although fraud was pleaded, no attempt was made to prove the particulars. The trial magistrate's findings were therefore properly made and were upheld.

p. 5

Legal principles established

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  • A first appellate court must reconsider and evaluate the evidence afresh and arrive at its own conclusions, while making allowance for the fact that it did not see or hear the witnesses
  • Fraud must be specifically pleaded with particulars and must be distinctly proved; it cannot be left to be inferred from the facts
  • In claims founded on fraud, limitation time does not begin to run until the fraud is discovered

Court orders

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  1. 1.The Appellants' appeal is dismissed
  2. 2.Costs of the appeal awarded to the 1st Respondent
On appeal from
Kilungu Principal Magistrate's Court
not stated in judgment
Jurisdiction invoked
First appellate jurisdiction over appeals from the Principal Magistrate's Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Makilya & another v Simeon & another (Environment and Land Appeal E015 of 2022) [2025] KEELC 3931 (KLR)", Case Analysis (2025). Appeal from Kilungu PMCC (title not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3931/eng@2025-05-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.