Gatuha & 2 others v Njoroge & 3 others

2. Upon hearing the suit, the trial court (Kemei J.), in the judgment dated 10th December 2020, struck out the appellants’ suit on the basis that it was barred by statute as the claim, being one for recovery of land, had been brought after twelve years. 3. Aggrieved, the appellants lodged the present appeal in which they raise seven (7) grounds of appeal in their memorandum of appeal dated 8th March 2021 which, summarised, are that the learned trial judge erred in law and fact in: holding that the suit was not validly before the court; raising the issue of the claim being time barred and proceeding to make its determination on the said issue without calling the parties to submit on the same; holding that the appellants’ claim was barred by statute; striking out the suit without due consideration against the weight of available evidence; failing to consider the issues framed by the parties and the available evidence; failing to appreciate that the appellants’ title deeds were issued in 2012 and therefore time started running in 2012 and not 1999 and thereby erred in computing time; and in failing to properly appreciate and apply the law to the facts of the case, thereby arriving at a wrong conclusion. 4. Briey, the facts before the trial court as set out in the amended plaint dated 9th August 2019 were that the appellants, who were the 1st -3rd plaintis before the trial court, had brought suit on their own behalf and on behalf of 34 other claimants who had signed an Authority to Act, authorising the appellants to le suit. The appellants averred that at all material times relevant to the suit, they and the other claimants were members of the 4th respondent, Kagaa Farmers Co-operative Society Limited (now in liquidation, hereafter referred to as ‘Kagaa’). They pleaded that, in or about the year 1988, Kagaa was the registered and legitimate owner of several named parcels of land including Makuyu/ Kimorori/Block- 111/3794, 3795, 3796, 3797, 3798, 3799 and 3800. 5. Sometime in 1998 and early 1999, Kagaa subdivided the aforesaid land parcels into two hundred and fty-four (254) half-acre (½) acre plots with the intention of allocating and registering the resultant plots to its members, including the claimants. Upon the subdivisions, Kagaa surrendered the original title documents for L.R numbers Makuyu/Kimorori/Block-111/3794, 3795, 3796, 3797, 3798 and 3800 to the Lands Registry in Thika for the purpose of registering the subdivisions and issuance of new titles to the allottees. The original title document for Makuyu/Kimorori/Block-111/3799 was left in the custody of the surveyor who was dealing with the subdivision. 6. It was the appellants’ case that after subdivision was completed, Kagaa started allocating plots to members, who started developing their plots. Between 1998 and 1999, fty-one (51) title deeds were prepared and issued to the appellants, some claimants and other members by the District Land Registrar in Thika, who was then dealing with registration of the subdivisions, in constant communication and consultation with the District Land Registrar, Murang’a. 7. The appellants pleaded further that sometime in 2012, the Commissioner of Lands directed that the suit properties be dealt with by the Murang’a District Land Registrar. Accordingly, on 17th September 2012, the District Land Registrar, Thika, forwarded mutation forms, unsigned title deeds, respective green cards and original surrendered title deeds for the said land title numbers to the District Land Registrar, Murang’a, to proceed with processing of the respective title deeds to be issued to the appellants and other members. The appellants pleaded that the surveyor holding the original title deed for Makuyu/Kimorori/Block-111/3799 also surrendered it alongside mutation forms for further action by the 2nd and 3rd respondents. 8. According to the appellants, sometime in September 2012, the District Land Registrar, Murang’a, proceeded to issue a further seventy-one (71) title deeds to some claimants and other members of Kagaa following the subdivisions undertaken in 1998 and 1999. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1977/eng@2026-09-25 2

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9. The appellants pleaded further that on or about October 2012, they received information that the 1st respondent herein, Joe Karanja Njoroge, purporting to be the chairman of Kagaa, had illegally and fraudulently caused illegal consolidation of title numbers Makuyu/Kimorori/Block-111/3795, 3797, 3798, 3799 and 3800 to form a new title, Makuyu/Kimorori/Block-111/3932, with the intention of subdividing and selling them to unsuspecting third parties, thereby defrauding the appellants, claimants and other members of Kagaa of their legally acquired properties. 10. The appellants asserted that upon further investigation at the Murang’a Lands Registry, they conrmed that the said properties had been illegally consolidated to form the new title, Makuyu/Kimorori/ Block-111/3932, which had been subdivided by the 3rd respondent, the Murang’a District Land Surveyor, into quarter (¼) acre plots, which the 1st respondent purported to sell to unsuspecting third parties. It was their contention further that the 1st respondent had illegally and fraudulently purported to subdivide Makuyu/Kimorori/Block-111/3794 and 3796 into ¼ acre plots with the intention of oering the plots for sale to unsuspecting members of the public. 11. The appellants set out in their amended plaint the particulars of fraud and illegality which they alleged against the respondents, including causing unlawful consolidation of the specied parcels to form a new parcel and issuing a new title; alleged collusion involving the 1st, 2nd and 3rd respondents in causing subdivision of the purported new title; purported consolidation while knowing or having reason to know that the said titles had been extinguished upon subdivision and registration of resultant plots; and purported consolidation without original title documents; and illegal sale, alienation and transfer to unsuspecting members of the public. They sought the orders referred to earlier in this judgment. 12. The 1st respondent led a statement of defence dated 1st November 2017 in which he averred that he was the chairman of Kagaa, admitted the consolidation and subdivision of Kagaa’s properties, but denied the allegations of illegality and fraud. In their joint statement of defence dated 3rd November 2019, the 2nd and 3rd respondents denied the allegations of fraud made by the appellants. They averred, however, that surrender of the title to the subject properties had indeed occurred, as had consolidation and subdivision of the subject properties. 13. The matter proceeded for hearing before the trial court, with the appellants calling two witnesses, while the 1st respondent, in his testimony before the trial court, stated that he was testifying for himself and for Kagaa. The 2nd respondent also gave oral testimony, and the parties then led written submissions in support of their respective cases. 14. In its decision, the trial court set out the respective pleadings and evidence of the parties. Thereafter, it set out the issues that the parties had identied as falling for determination as being whether the subdivisions carried out in 1998/99 were lawful and should be upheld; whether the appellants had proved fraud and illegality; whether the Land Registrar, Thika, had the jurisdiction to issue titles for land under the territorial jurisdiction of Murang’a Land Registry; and if so, whether the appellants were the rightful owners of the titles listed in the authority to act; whether the consolidation of the subject parcels Makuyu/Kimorori/Block 111/3795, 3797, 3798, 3799 and 3800 to create 3932 should be revoked on account of illegality; and nally, whether the subsequent title No 3932 is a nullity and should be revoked and the resultant titles issued therefrom cancelled or revoked. 15. In its determination, the trial court did not address itself to the evidence or the issues raised by the parties. Instead, it observed as follows: 40. Having read and considered the Pleadings, the evidence, the written submissions and all the materials placed before me in this suit, there is one issue https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1977/eng@2026-09-25 3

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that has arisen and which needs to be disposed o (sic) before I delve into the issues as framed by the parties or issues to be framed by the Court. 41. 16. 17. The trial court then went on to consider the provisions of section 7 of the Limitation of Actions Act and then observed as follows: “ 47. The gist of the Plaintis prayers is a claim for recovery of land. 48. The event of allocation and registration of the suit lands in their names and their attendant occupation and removal took place 1999. The suit was led in 2017, 18 years later. 49. Going by the edict of Section 7 of the Limitations of Actions Act 12 years within which one can recover land expired in the 2011. This suit therefore ought to have been led on or before the year 2011. The court then considered the provisions of section 4 of the Limitations of Actions Act with respect to the allegations of fraud by the appellants and observed as follows: “ 50. 18. The issue is whether the claim of the Plaintis is barred by statute. Going by Section 4 of the Limitations of Actions Act an action based on fraud should be brought to Court within 3 years. The PW1 led evidence that they discovered in 2012 that the mother titles had been combined and new titles issued on top of their titles thus depriving them of the right to title. If that be so then 3 years expired in 2015 when they ought to have led the suit.” Ultimately, the trial court, upon considering various judicial precedents regarding the question of limitation, concluded that the issue went to jurisdiction, stating: “ In summation the irresistible conclusion is that the suit is not validly before the Court. I hereby strike it out without the necessity of drawing issues by the Court or considering those framed by the Parties in the suit.” 19. At the hearing of the appeal, the appellants were represented by learned counsel, Ms. Kang’ethe, who indicated that the appellants would rely entirely on their written submissions (dated 8th April, without the year being indicated), without highlighting. There was no appearance for the respondents, though served, nor were there any submissions on record led on their behalf. 20. We have considered the record of appeal and the judgment of the trial court, the relevant parts of which we have set out above. As a rst appellate court, we are under a duty to evaluate the evidence before the trial court and reach our own conclusions, as is now settled law- see Selle v Associated Motor Boat Co. Ltd [1968] EA 21. In this case, however, we are cognisant of the fact that the suit was struck out on the issue of limitation. At the core of the appellants’ case is the contention that the trial court failed to determine the issues raised and submitted upon by the parties; that it instead raised the issue of limitation and, without hearing the parties thereon, determined the suit on the issue it had raised suo motu. The sole issue on which this appeal turns, then, is whether the trial court erred in raising and determining the question of limitation without hearing the parties and, on the basis thereof, holding that the appellants’ case was not validly before it and striking out their suit. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1977/eng@2026-09-25 4

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22. In impugning the decision of the trial court, the appellants note that aside from raising the issue of limitation without calling them to submit on it, the trial court failed to appreciate that the appellants’ title deeds were issued in 2012, and therefore time started running in 2012 and not 1999 as the trial court concluded. 23. It may well be, as the trial court concluded, that the appellants’ titles were issued in 1999, and therefore their claim was barred by limitation as provided under section 7 of the Limitation of Actions Act. Conversely, it may be correct, as the appellants contend, that their titles were issued in 2012, and therefore their claim for recovery of land was within time, their suit having been led in 2017. That, however, is not the critical issue. At the heart of the appellants’ grievance is whether the trial court could properly raise the issue of limitation and make a determination thereon without hearing the parties. If the answer to this issue is in the negative, then the court committed a grave error of law in raising the issue suo motu, addressing its mind to it, and determining the issue without input from the parties. 24. In their submissions before us, the appellants contend that from the pleadings and the proceedings in the trial court, it is clear that none of the parties raised the issue of their claim being statute- barred; that though this was an issue of law that could be raised at any point, the parties ought to have been granted an opportunity to be heard on it. They submit that this was so in light of the fact that the court was required to examine the facts of the case and evidence before reaching the conclusion that it did. It is their submission that the parties were not given an opportunity to interrogate the facts of the case and evidence with regard to when the cause of action arose. 25. The appellants further submit that given that a nding that a suit is statute- barred leads to striking out of the suit, they were entitled to an opportunity to be heard on the issue before their claim was struck out, and were thus driven from the seat of justice without a hearing. The appellants cite in support the case of Kivanga Estates Limited v National Bank of Kenya Limited (2017) eKLR. 26. Relying on the decision of the High Court in Commissioner of Domestic Taxes v Prexx Ventures [2025] KEHC 3691 (KLR), the appellants submit that while the court has inherent power to raise an issue for determination suo motu, particularly on the issue of jurisdiction, for fairness of proceedings and the right of parties to be heard, it is prudent that parties are given a fair opportunity to address the issue before the court makes a determination on it. 27. We have considered the issue and the appellants’ submissions thereon. In Nakumatt Holdings Limited v Commissioner of Value Added Tax [2011] KECA 295 (KLR), this Court considered a situation in which the superior court raised an issue suo motu, made a determination thereon, then declined to review its decision. In decrying the manner in which the court had dealt with the matter, this Court stated: “ In the present case it was the Superior Court which put the appellant in the predicament it nds itself in. It was mistaken on the applicable law. The appellant acted promptly and sought an order reviewing the erroneous order. The court declined jurisdiction with the result that the limitation period expired. If that decision is not reviewed it would not have any remedy. It is hardship of that nature which the review jurisdictions should be exercised to obviate, more so if it is shown that the applicant did not contribute to that state of aairs. The case of Judicial Commission of Inquiry into the Goldenberg Aair & 3 Others vs. Kilach [2003] KLR 249, does not hold that review is not available under Order 53 of the Civil Procedure Rules. It would be oppressive and an aront to common sense in a case like the one before the court where the court precipitated a situation for the same court to turn round and say it lacks jurisdiction to correct what is obviously a wrong decision, more so https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1977/eng@2026-09-25 5

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where, as here, the court was not addressed on the merits or otherwise of the application for leave. The court suo moto raised the jurisdictional issue without asking the applicant’s counsel to address it on the matter.”(Emphasis added) 28. In Accounting Ocer Kenya Ports Authority (Ex Parte) v Public Procurement Administrative Review Board & 3 others (Interested parties) [2019] KEHC 2229 (KLR), the High Court, in a well- reasoned decision, examined various decisions relating to situations in which a court raised an issue suo motu without aording parties an opportunity to be heard thereon, Including Nakumatt Holdings (supra) and held as follows: “ .…the jurisprudence is that a court cannot raise an issue suo moto and determine it suo moto without giving an aected party a chance to be heard on the issue. It is irrelevant whether the Tribunal would have arrived at the same decision even if it had aorded the parties an opportunity of being heard before making its decision. It must always be remembered that where a party has a right to be heard that right cannot be taken away by the mere fact that the Tribunal considers that the said party’s contribution is unlikely to aect the decision.” 29. The question of a decision being made on the basis of an issue raised, suo motu, by the adjudicating authority was the subject of appeal before this Court in Vickers Security Services Limited v Public Procurement Administrative Review Board & 3 others [2025] KECA 671 (KLR). In the matter, this Court dealt with the question whether the Public Procurement Administrative Review Board, having considered and found the grounds on which the application before it was based to be without merit, could proceed to nullify the procurement by the procuring entity, the Kenya Revenue Authority (KRA) on grounds which the Board had itself raised, and which had not been addressed by the parties. In its decision, the Court held as follows: “ 93. Any reasonable person would have expected the Board, having found no merit in the specic complaint laid by Hatari in accordance with the Act and the Regulations, to dismiss the application for review, or at the very least in deference to the Constitution, to hear the parties to the dispute if it wished to continue engaging with new matters. Instead, the Board, on its own motion and without hearing the parties, undertook what is called an “in-depth review” of the Vickers’ compliance with other mandatory requirements beyond those complained of by Hatari…. 95. The myriad of decisions we have set out above required the Board to restrict itself to the pleadings, complaint and issues raised by Hatari and addressed by the Parties. It could only have determined new issues in the circumstances set out in Njurukani & 2 Others v. Barasa (supra). It is common ground that the parties did not raise any of the issues on the basis of which the tender was nullied and that they did not address those issues. The Board did not hear any of the parties on the new issues, and by their conduct, the parties did not leave the matters to the Board to decide. The Board simply ignored the complaint that was before it, and on its own initiative fashioned new issues and determined them without hearing the parties. … 101. While we agree fully with the reasoning of the Court that an issue of jurisdiction may be raised at any time, including by the Court suo motu, the issue of the implication of the right to a fair hearing guaranteed by Articles https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1977/eng@2026-09-25 6

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47(1) and 50(1) of the Constitution, which has featured perversely in this appeal, was not addressed in the decision cited by Hatari. The right to a fair trial is so central in our constitutional system, that, by dint of Article 25 of the Constitution it is one of only four rights and fundament freedoms that cannot be abridged under any circumstances.” 30. The Court considered at length the issues that the Board had raised suo motu and observed that: “ The Board did not hear any of the parties on the new issues, and by their conduct, the parties did not leave the matters to the Board to decide. The Board simply ignored the complaint that was before it, and on its own initiative fashioned new issues and determined them without hearing the parties.” 31. In allowing the appeal, this Court concluded that Vickers and KRA were eminently justied in their complaint that the Board denied them the right to a fair hearing in determining issues that the applicant had not raised before it, without giving them an opportunity to be heard. 32. In this case, the trial court raised the issue of limitation on its own motion, and based its decision to strike out the appellants’ case thereon. None of the parties, and certainly not the respondents who eminently benetted from the trial court’s decision, had pleaded the issue of limitation, as the defences which we summarised earlier in this judgment demonstrate. 33. In the case of Njurukani & 2 others v Barasa (Sued as Personal Representative of Barasa Waswa) (Civil Appeal E149 of 2022) [2023] KECA 1250 (KLR) (6 October 2023) (Judgment) this Court set out the circumstances under which a court could determine a matter on an unpleaded issue in the following terms: “ … it is only open for a court to base its decision and grant relief on an unpleaded issue where the following conditions are met: a. When the issue the court seeks to frame for relief is prominently germane in the evidence adduced by both parties and all the relevant matters respecting the issue have litigated and all the potential evidence made available to the court and the only failure was the technical one of failing to request for the specic relief in the pleadings; b. When the parties exhaustively addressed the issue for which the court seeks to grant a relief; c. When no useful purpose will be served by the matter being litigated in a dierent form except to unnecessarily prolong the litigation process; d. When the dictates of substantive justice compel that relief be granted rather than requiring that a new matter be led, for example, where the evidence before the court shows that a party is likely to continue suering oppression by the other party or where the new matter may be time barred; e. When the relief is incidental or logically consequential from the pleaded matters and the court comes to the conclusion that in spite of the deciency in the pleadings, the parties knew the case and they proceeded to trial on the issue in question by producing evidence; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1977/eng@2026-09-25 7

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f. When the failure to plead the relief was not a product of bad faith, tactical maneuver to give an advantage to the unpleading party…. In this regard, some of the factors the court considers is whether the party was acting in person as well as the circumstances in which the matter was led. For example, some matters are led in an emergency mode where drafting mistakes can be made due to the pressure of time… g. When neither party will suer objective prejudice if the court grants the relief on the evidence (Emphasis added) 34. We fully agree with the views expressed by the Court in the above matter. As the jurisprudence shows, the court in the matter before us had the inherent power to raise an issue of law, the issue of limitation, suo motu. It, however, had a responsibility to accord the parties before it an opportunity to be heard on the issue. Its failure to do so meant that it denied the appellants a fair hearing on a critical issue that was dispositive of the matter before the trial court. The right to a fair hearing under Article 50(1), as this Court underscored in Vickers, cannot be derogated from, and the failure to hear the parties clearly resulted in objective prejudice to the appellants. 35. In the circumstances, we are satised that the appeal is merited, and we hereby allow it. We set aside the decision of the trial court dated 10th December 2020 striking out the appellants’ suit, Murang’a ELC Case No. 305 of 2017, which, for the avoidance of doubt, we hereby reinstate. The matter shall be placed before the Environment and Land Court in Murang’a for directions with respect to the hearing and determination thereof before any judge of the court other than Kemei J. 36. As this appeal arose from an error of law on the part of the trial court, we make no order as to costs. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. S. OLE KANTAI ……………………………………………. JUDGE OF APPEAL MUMBI NGUGI ……………………………………. JUDGE OF APPEAL A. ALI-ARONI ……………………………………. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1977/eng@2026-09-25 8

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