Njuguna v Kaniu & another (Environment and Land Case E207 of 2016) [2025] KEELC 5167 (KLR)

The court invoked Section 26 of the Limitation of Actions Act, holding that where fraud is pleaded, time does not run until the plaintiff discovers the fraud with reasonable diligence. PW2 testified the plaintiff learned of the fraud in 2015 and reported it to the DCI; the suit was filed roughly a year later. Filing within about a year of discovery was held not to constitute inordinate delay.

The register (PEX3) showed plot 3383 in the plaintiff's name, cancelled to David N. Thuo, who featured nowhere. The Land Registrar confirmed the cancellation was never stamped by the company's liquidator, as required, and that green card entries did not tally with the title. DW2 could not produce any allocation or sale documents, and DW1 admitted ignorance of how the 3rd Defendant acquired title. Applying Munyu Maina, the defendants had to go beyond the title instrument and prove legality of acquisition, which they failed to do.

Allegations of fraud must be strictly pleaded and proved above balance of probabilities (Emfil Limited; Arthi Highway Developers). The irregular cancellation of the plaintiff's name, replacement with a stranger (David Thuo), the mismatch of entries between the green card and the title deed, and the rushed two-month transfer to the 3rd Defendant collectively satisfied the court that the acquisition was fraudulent, illegal and unprocedural.

Relying on Samuel Kamere v Lands Registrar, Kajiado, a bona fide purchaser must prove valid legal title, due diligence into the lawful owner, and payment of valuable consideration. DW1 failed to produce a sale agreement for the purchase from the 3rd Defendant and admitted he did not know how the 3rd Defendant acquired the parcel, nor did the defendants take steps to remove the caution placed by the plaintiff in 1990. The bona fide purchaser defence therefore failed.