Mutwol v Mutwol & 4 others (Environment and Land Case 37 of 2020) [2026] KEELC 1876 (KLR)

The court held that parties must present their cases through pleadings and cannot depart from them in the adduction of evidence. The 4th Defendant's pleadings denied the Plaintiff's purchase and asserted that the 5th Defendant was an innocent purchaser, yet her evidence supported the Plaintiff's claim of purchase. Such evidence at variance with pleadings goes to no issue and must be disregarded, as departing from pleadings would amount to trial by ambush and an unfair trial.

The court set out the stages of production of documentary evidence: filing, laying basis for secondary evidence, satisfying relevance and admissibility, then proving contents. A document merely marked for identification, if not formally produced as an exhibit, is not part of the record. Oral evidence about an unproduced document is mere inadmissible hearsay. Section 3(3) of the Law of Contract Act also requires a written, signed and attested contract for a disposition of land.

The burden lay on the Plaintiff to prove her purchase. She did not produce the alleged sale agreement, had no documentary proof of payment or occupation, and relied on the unreliable evidence of the 4th Defendant. It was not for the 1st Defendant to disprove the Plaintiff's purchase. Section 3(3) of the Law of Contract Act required a written, signed and attested agreement, which was not produced.

The evidence of the 4th Defendant in cross-examination showed she voluntarily signed all transfer documents in favour of the 1st Defendant and attended the Land Control Board. For the transfer to the 5th Defendant, the Land Registrar produced transfer applications, valuation, consent and stamp duty payment documents showing procedures were followed; the charge was discharged a day before the transfer, and the injunction order was registered after the transfer.

The Registrar registers instruments duly executed and presented to it; it does not sit on the Land Control Board nor verify the underlying transactions. Section 14(5) of the Land Registration Act protects the Registrar from personal liability for lawful acts done in good faith. The Plaintiff admitted in cross-examination that the Registrar came in at the tail end of the transactions and had no reason to refuse registration.

Applying the Supreme Court's statement of the doctrine in Sehmi, the court found that the 5th Defendant talked with the seller, visited the land and found the 1st Defendant's workers on it, spoke to neighbours, conducted an official search, obtained Land Control Board consent and was registered when the register showed no bar. The 1st Defendant, not the Plaintiff, was in occupation.

The alleged fraud occurred in 2011; under sections 4(2) and 26(1) of the Limitation of Actions Act the Plaintiff ought to have discovered it then and sue within three years, but she sued in 2020, over nine years later. Further, the 1st Defendant had occupied the land without the Plaintiff's permission since 2007, so by sections 7 and 13 of the Act the Plaintiff's title, if any, was extinguished.

The relief of permanent injunction depended on the Plaintiff's ownership claim, which failed both on proof of purchase and on limitation. It follows the injunction could not issue and the status quo orders had to be discharged.