Wanjiru

2. 3. Failing to take into account that Antony Mwangi Mwaniki (deceased) is the registered owner of L.R KJD/Ol Choro Onyore/4204 measuring 2.023 hectares and a valid title deed issued accordingly. 4. Holding that the documents of transfer were not executed as per the law whereas no evidence was tendered by the Respondent to that eect. 5. Failing to take into account the Respondent's own admission in the amended defence and counterclaim that the Respondent was willing to sell appropriately two acres of land to the deceased. 6. Failing to take into account the Respondent’s own admission in the amended defence and counterclaim that the purchase price was agreed at Ksh.35,000/= per acre and that Antony Mwangi Mwaniki (deceased) paid a sum of Ksh.55,000/= 7. Failing to take into account that the deceased had paid the sum of Ksh.25,000/= for a total of 5 acres for suit property as reected on the transfer deed and the land control board application and consent. 8. Failing to caution herself on the documents produced by the Land Registrar being the green card and the mutation which were not authentic and did not have any probative value to the case. 9. Relying on a green card that was marked “FRAUD” 10. Holding that the mutation form produced by the Appellant was not authentic yet the one produced by the land registrar had cancellations and was incomplete. 11. Failing to take into account that the Respondent had executed an application for consent to transfer and the land control board consent to transfer issued after which the defendant executed a transfer deed in favour of Antony Mwangi Mwaniki (deceased) for the suit property. 12. Finding that the transfer document relied on by the Appellant was not approved by the Land Registry. 13. Cancelling the deceased’s title on the basis of the land control consent which was issued three months before the suit property existed/opened and failing to appreciate the nature of transactions in subdivisions and mutations of land at the material time. 14. Entirely relying on the testimony and evidence of the land registrar, Kajiado West, Rahab Muthoni Njoroge who was not the Land Registrar for Kajiado North where the suit property and land registry are located. 15. Relying on the evidence of the land registrar, Kajiado West, Rahab Muthoni Njoroge who was biased and impartial. 16. Relying on irrelevant provisions of Section 3(3) of the Law of Contract Act that the agreement for the sale of the suit property should be in writing and witnessed by parties’ witnesses and failed to acknowledge the amendments in law thereof. 17. Failing to take into account the amendments in the amended plaint which had extinguished earlier averments made by the deceased. Premised on the abovementioned grounds, the Appellant seeks for the following orders: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18596/eng@2025-12-11 2

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a. This Appeal be allowed with costs. b. The judgment and orders by the Hon. Magistrate be set aside and substituted by an award of this Honourable court allowing the orders sought in the plaint. c. This honourable court do give such further orders as it may deem just. Proceedings before the Chief Magistrates court 3. The proceedings before the Ngong Senior Principal Magistrate’s court, instituted by Antony Mwangi Mwaniki against the Respondent were commenced through a Plaint dated 23rd July, 2019. Following the demise of Antony Mwangi Mwaniki on 20th March 2021, during the pendency of the suit, the Plainti’s counsel led a Notice of Motion Application dated 18th June 2021 seeking to substitute him with his daughter Betty Wanjiru Mwaniki who was the personal representative of his estate according to the Limited Grant of Letters of Administration Ad Litem issued in Ngong Senior Resident Magistrate’s Court MC Succession MISC/E021 of 2021. The Application was subsequently allowed. Additionally, the Plainti/Appellant’s counsel was granted leave to le and serve their Amended Plaint. 4. In the Amended Plaint dated 30th July 2021, the Plainti/Appellant averred that he purchased 5 acres out of L.R. KJD/Ol Choro Onyore/3491 from the Respondent in 1994. He further pleaded that, following the subdivision of the said property into L.R. KJD/Ol Choro Onyore/4203, 4204, and 4205—measuring 2.027 ha, 2.023 ha, and 0.81 ha respectively; the parcel known as L.R. KJD/Ol Choro Onyore/4204, being the suit property, was transferred to him and registered in his name. Before commencing any developments on the suit property, the Appellant relocated permanently with his family to the United States, albeit returning to Kenya annually for visits. When he came back in 2016, he found that the Respondent had taken possession of, and was asserting ownership over, 3 acres of the suit property, contending that he had sold to the Appellant only 2 acres. 5. The Appellant asserted that his attempts to obtain an ocial search from the Kajiado North Land Registry were futile, as he was advised that the Land Registrar had placed the relevant documents under lock and key. He further alleged that the Respondent had colluded with ocers at the registry to manipulate the green card for the suit property so as to reect that only two acres had been sold to him. The Appellant averred that, in response to a letter from the Deputy County Commissioner—written pursuant to a complaint he lodged seeking clarication on the correct acreage—the Land Registrar conrmed that the Appellant’s portion measured 2.03 hectares, and not 0.8 hectares as claimed by the Respondent. 6. The Appellant’s case before the trial court was that the intervention of the Deputy County Commissioner proved unfruitful, as the Respondent declined to honour the summons issued to facilitate resolution of the dispute. He further stated that he reported the matter to Kiserian Police Station after the Respondent threatened him and his surveyor with violence and obstructed their attempt to survey the 5-acres’ parcel. In the circumstances, the Appellant urged the trial court to grant him the following reliefs: a. A declaration that the deceased, Antony Mwangi Mwaniki is the registered owner of L.R KJD/ Ol Choro Onyore/4204 measuring 2.023 ha. b. An order of eviction be issued against the Respondent and further be permanently restrained either by himself, agents, servants or any other person acting on his behalf from interfering, trespassing into and or in any way dealing with L.R KJD/Ol Choro Onyore/4204. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18596/eng@2025-12-11 3

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c. An order be issued directing the District Land Surveyor (Kajiado North Land Registry) at Ngong to identify and or place the beacons on L.R KJD/Ol Choro Onyore/4204. d. An order be issued directing the OCS Kiserian Police station to provide security at the time of beaconing and eviction. e. An order be issued to District Land Registrar, Kajiado North Land Registry at Ngong, directing him/her to allow transactions to be carried out on L.R KJD/Ol Choro Onyore/4204 in the normal lawful way. f. Costs of this suit. g. Any other costs or order as the honourable court may deem t and just to grant. 7. The Respondent led a Statement of Defence and Counterclaim dated 22nd August 2019, subsequently amended on 1st September 2021. In the Amended Statement of Defence and Counterclaim, the Respondent asserted that L.R. KJD/Ol Choro Onyore/3491 was his property. He further stated that in 1994, he subdivided the property into L.R. KJD/Ol Choro Onyore/4203, 4204, and 4205, measuring 2.027 ha, 2.023 ha, and 0.81 ha respectively. 8. The Respondent contended that, under an oral agreement with the Appellant, it was mutually understood that the Appellant would purchase two acres of his land at Kshs. 35,000 per acre. To date, the Appellant had paid only Kshs. 55,000 of the purchase price. The Respondent further stated that the Appellant disappeared after paying the deposit, and upon his eventual return, he discovered that the Appellant had fraudulently and unilaterally transferred L.R. KJD/Ol Choro Onyore/4204 into his own name, whereas the Respondent had intended to sell L.R. KJD/Ol Choro Onyore/4205. According to the Respondent, this transfer was eected without his knowledge and without formalizing the agreement in writing, as required by law. 9. In the Counterclaim, the Respondent reiterated that the Appellant had intended to purchase L.R. KJD/Ol Choro Onyore/4205, that no formal sale agreement was executed, and that the full purchase price for the two acres had not been paid. The Respondent maintained that, had the Appellant completed payment, he would have transferred L.R. KJD/Ol Choro Onyore/4205 without objection. Instead, he alleged, the Appellant had exploited his limited literacy and fraudulently manipulated the process to acquire a larger portion than he had purchased. This, the Respondent asserted, was achieved through the unauthorized transfer of L.R. KJD/Ol Choro Onyore/4204 to the Appellant and the collection of an incorrect title deed under unclear circumstances. The Respondent accused the Appellant of acting behind his back to irregularly and fraudulently transfer L.R. KJD/Ol Choro Onyore/4204 into his name without his consent. By way of a Counterclaim, the Respondent sought the following reliefs: a. An order of declaration that Antony Mwangi Mwaniki acquired L.R KJD/Ol Choro Onyore/4205 fraudulently. b. An order that registration of L.R KJD/Ol Choro Onyore/4204 in Antony Mwangi Mwaniki’s names be revoked c. An order that L.R KJD/Ol Choro Onyore/4204 be transferred back to the Respondent at Appellant’s cost. d. Costs of the suit. e. Any other relief that the honourable court shall deem t. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18596/eng@2025-12-11 4

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10. The Appellant responded to the Respondent’s allegations through a Reply to Defence and Amended Defence to Counterclaim dated 17th November 2021. He averred that the deceased and the Respondent had a clear mutual understanding and agreement between them, notwithstanding the absence of a written contract. He further contended that had the purchase price not been fully paid, the Respondent would not have eected the transfer of the suit property to the deceased. The Appellant added that, if the Respondent believed he had been wronged, he ought to have pursued legal recourse against the deceased at the time. 11. In the Amended Defence to the Counterclaim, it was reiterated that the deceased lawfully acquired L.R. KJD/Ol Choro Onyore/4204 from the Respondent through a valid agreement, pursuant to which all requisite transfer instruments were duly executed. It was further averred that the consideration was Kshs. 25,000, as reected in the transfer instrument dated 5th May 1994. The Appellant therefore invoked the doctrine of estoppel, contending that the Respondent was precluded from asserting that the deceased purchased L.R. KJD/Ol Choro Onyore/4205 rather than L.R. KJD/ Ol Choro Onyore/4204, or from denying the existence of the agreement and the ensuing transfer. 12. The Appellant maintained that the Respondent was involved in the whole transaction because he jointly with the deceased, went to apply for the Land Control Board consent. Consequently, the transfer and registration of L.R. KJD/Ol Choro Onyore/4204 in the deceased's name made him its absolute and indefeasible owner. The Appellant denied the allegations of fraud levelled against the deceased, reiterating that although the agreement was not reduced into writing, the parties nonetheless validly executed the transfer of L.R. KJD/Ol Choro Onyore/4204. The Appellant further contended that they would raise a preliminary objection for determination in limine, on the basis that the Respondent’s Counterclaim was statute-barred and therefore liable to be struck out. 13. After consideration of party’s pleadings, court record and proceedings, and testimonies adduced during the hearing, the Learned Magistrate entered judgment in favour of the Respondent as prayed in the counterclaim, on 26th May, 2023. Court directions 14. The court’s directions with the concurrence of the parties’ advocates was that the appeal be canvassed by way of written submissions. This directive was fully complied with, the submissions by the Parties have been duly considered in the writing of this judgement. Analysis of Submissions Appellant’s Submissions 15. 16. In her submissions dated 17th June 2025, counsel for the Appellant identied three issues for determination as hereunder: a. Whether the learned Magistrate erred in nding that the deceased, Antony Mwangi Mwaniki, did not purchase L.R. KJD/Ol Choro Onyore/4204 from the Respondent; b. Whether the learned Magistrate erred in revoking the deceased’s title to the suit property and directing its retransfer to the Respondent; and c. Whether the Respondent established a sustainable counterclaim. On the rst issue, the Appellant contends that she demonstrated on a balance of probabilities that a valid oral sale agreement existed between the deceased and the Respondent. Reliance is placed on https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18596/eng@2025-12-11 5

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the pleadings in form of the Amended Plaint and on the Respondent’s own admissions during crossexamination that he sold the suit property to the deceased and received the purchase price. Counsel further submits that, at the time the transfer was registered in 1995, Section 3(3) of the Law of Contract Act—requiring contracts for the disposition of land to be in writing—had not yet come into force. Consequently, the oral agreement was valid in law, as armed in Patrick Njuguna Kimondo v Georey Vamba Mbuti (2019) eKLR, James Kendagor Simatei v Philip Kipruto Simatei (2019) eKLR and Mbeetu v Kirima (Environment and Land Appeal 116 of 2019 [2022] KEELC 2369). 17. The Appellant faults the learned Magistrate for grounding the decision on the original plaint instead of the amended plaint, which accurately captured the transaction between the parties. To buttress this argument, reference is made to Stockman Rozen Kenya Ltd v Da Gama Rose Group of Companies Ltd (2000) eKLR, Rahilu Mohamed Khan v Standard Chartered Bank (K) Ltd & Another (2000) eKLR, and Warner v Sampson (1959) 1 All ER 120, which established that amended pleadings supersede the original and dene the issues for trial. 18. On the revocation of title, the Appellant argues that documentary evidence tendered at trial—namely, the title deed issued on 18th May 1994 and the ocial search dated 9th December 2019—proved conclusively that the deceased was the registered proprietor of the suit land. Sections 27 and 28 of the (repealed) Registered Land Act, together with Section 26(1) of the Land Registration Act, are cited to underscore the indefeasibility of a registered proprietor’s title. 19. The Appellant stresses that the Respondent had already applied for and received the Land Control Board consent on 1st February 1994, and thereafter executed the transfer on 5th May 1994, facts conrmed through PW1’s testimony. Thus, the Respondent’s claim that he intended to transfer only two acres is said to be unsupported. 20. On the Respondent’s counterclaim, the Appellant challenges the learned Magistrate’s nding that the deceased’s title was procured fraudulently. It is submitted that the Respondent neither disproved the authenticity of his signature on the transfer nor called an expert witness to impugn it, contrary to Sections 107, 108, 109, 112 and 116 of the Evidence Act and the reasoning in Paul Nganga Kuria v Earnest Mwaniki Kariuki & Another (2018) eKLR. 21. Counsel further submits that although the Respondent did not plead nullication of the transfer, the Land Registrar nonetheless produced transfer documents and Land Control Board consent identical to those produced by the Appellant. The Magistrate is faulted for relying on a green card said to contain anomalies—being crossed out and marked “fraud”—without adequately interrogating its authenticity. 22. The Appellant challenges the credibility of the Land Registrar’s testimony on grounds that she was neither stationed at the Kajiado North Land Registry nor produced any correspondence from that registry to validate the documents relied upon. He therefore asserts that the trial court ought to have warned itself regarding the reliability of her testimony. 23. The doctrine of proprietary estoppel is invoked to argue that the Respondent, having participated in the transfer process, is barred from denying the transaction or asserting that the deceased purchased the wrong parcel. The Appellant further notes that the Respondent never made any demand for the alleged unpaid purchase price, nor did he seek such sums in the counterclaim. It is argued that the counterclaim was time-barred, having been lodged more than 12 years after the deceased obtained title. 24. The Appellant maintains that the Respondent did not discharge the burden of proving fraud to the legally required standard, and that the trial court erred in shifting that burden to the Appellant. 25. In conclusion, the Appellant urges the Court to set aside the judgment of the learned trial Magistrate for having been founded on erroneous conclusions and for failing to appreciate the Appellant’s https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18596/eng@2025-12-11 6

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evidence and submissions. The Appellant prays that the reliefs sought in the Amended Plaint be allowed. Respondent’s submissions 26. The Respondent submits that the Plaint dated 23rd July 2019, led by the deceased, and the subsequent Amended Plaint led by the Appellant contain material inconsistencies and contradictions which, in his view, expose the fraudulent, irregular, and illegal manner in which the Appellant procured the impugned title. It is pointed out that in the original Plaint—whose correctness was armed through the deceased’s verifying adavit—the deceased averred that he purchased the suit property from the Respondent’s late father, one Nkoitiko. However, upon substitution of the deceased by his daughter, Betty Wanjiru Mwaniki, the Amended Plaint altered this foundational allegation, now asserting that the deceased purchased the land from the Respondent himself. 27. The Respondent contends that Betty Wanjiru Mwaniki’s testimony is inherently unreliable and constitutes hearsay, given that it contradicts the deceased’s sworn account and that she was not privy to the alleged transaction. According to the Respondent, these contradictions strike at the core of the present appeal, the authenticity of the title, and the validity of the underlying transaction, in line with the reasoning in Dina Management Limited v County Government of Mombasa & 5 Others (2023) eKLR. 28. On the second issue, the Respondent relies on the decision of Angote J. in Hannington Malingi Janji v Katana Pekeshe & 7 Others (2013) eKLR and Section 3(3) of the Law of Contract Act to argue that, since the Appellant did not execute any written sale agreement, he bore the burden of proving (i) possession of the suit land, and (ii) payment of the purchase price. The Respondent contends that the Appellant failed to establish either element, noting that the Respondent remained in possession of the property continuously from 1994. In those circumstances, the learned Magistrate was justied in nding that no valid sale ever took place between the deceased and either the Respondent or the Respondent’s father, and that the Appellant failed to demonstrate any proprietary interest in the suit land. 29. The Respondent further asserts that the deceased obtained title to the suit property illegally, unprocedurally and through a corrupt scheme. He maintains that no written agreement was executed, no Land Control Board consent was obtained, and no valid transfer was ever executed to authorize registration of the property in the deceased’s name. He argues that it was impossible for the deceased to have been issued with a title deed on 18th May 1994 when the parent parcel, L.R. 3491, was only recorded as subdivided on 17th May 1994. 30. Additionally, the Respondent relies on the testimony of the Kajiado West Land Registrar, who produced original and certied copies of the mutation of parcel 3491 and the original and certied green card for parcel 4204, to assert that the Appellant fraudulently and unlawfully procured registration. He submits that the learned Magistrate was correct in nding that he, the Respondent, is the rightful and legal proprietor of parcel 4204 and in holding that the deceased’s title should be impeached. 31. On limitation, the Respondent maintains that his counterclaim was properly before the court. He argues that time began to run only in 2019 when he rst became aware, upon commencement of the proceedings, that the Appellants had relied on forged documents to assert ownership of the suit property. Accordingly, the learned Magistrate did not err in entertaining or allowing the counterclaim. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18596/eng@2025-12-11 7

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Issues for determination 32. Upon careful evaluation of the Appellant's memorandum and supplementary record of Appeal, as well as the extensive submissions by learned counsel for the Appellant and Respondent, I nd that the following issues will conclusively determine this Appeal: a. Whether the Respondent’s claim was statute barre; b. Whether the deceased lawfully acquired title to L.R. KJD/Ol Choro Onyore/4204; and c. Whether, in light of the ndings on the foregoing issues, the Respondent’s counterclaim was merited. Analysis and Determination 33. The role of a rst appellate court was accentuated by the Court of Appeal in its dictum in Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR), where the learned Judges stated as follows: “ This being a rst appeal, we are reminded of our primary role as a rst appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 34. Before proceeding to determine the issues I have identied for determination, it is important that I address myself on a procedural issue regarding amendment of the Appellant's pleadings. This is because it will inuence the upshot of this Appeal. Additionally, the Learned Magistrate, while making her determination, undertook a comparative analysis of the original and the Amended Plaint before rendering the judgment. 35. Order 8 of the Civil Procedure Rules grants parties in civil proceedings the discretion to amend their pleadings if they so wish, in order to eectively articulate issues they desire to be umpired upon in court. Once a party is granted leave to amend their pleadings, the former pleadings are no longer germane (relevant), nor can they be relied upon by the parties or court during the pendency of the suit and nal determination. This is because the actual cause of action is contained in the revised pleadings. The reasons why courts allow a party in proceedings to amend their pleadings is described in Order 8 Rule 5 (1) as follows: “ For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just.” 36. As earlier stated in the introductory part of this judgment, legal proceedings in this suit which is the subject of this Appeal were commenced by Antony Mwangi Mwaniki against the Respondent on 10th August, 2024 through a Plaint dated 30th July, 2021. In the said plaint, Antony Mwangi Mwaniki claimed that he purchased 5 acres of L.R. KJD/Ol Choro Onyore/3491 in the year 1994 from the late Nkoitiko Ole Motonka, the Respondent’s father. He alleged that after his return to Kenya in 2016 from the USA, he discovered that the Respondent had colluded with the Kajiado Land Registry Sta to make it appear that he only bought 2 acres instead of 5 acres from the Respondent’s father. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18596/eng@2025-12-11 8

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37. Betty Wanjiru Mwaniki, Antony Mwangi Mwaniki’s daughter, was substituted with the deceased being the personal representative of his estate after his death on March 20, 2021. The Learned Magistrate allowed her substitution as the plainti pursuant to a Notice of Motion application dated June 18, 2021, seeking her substitution as well as leave to amend the Plaint. 38. The record of appeal reveals that the late Antony Mwangi Mwaniki's assertions were altered by his daughter, Betty Wanjiru Mwaniki, through an Amended Plaint dated July 30, 2021, which stated that he purchased 5 acres of L.R. KJD/ Ol Choro Onyore/3491 from the Respondent. After its subdivision into 3 portions, L.R. KJD/ Ol Choro Onyore/4204 was lawfully transferred to her father. 39. The Respondent has, in his submissions, argued that Betty Wanjiru Mwaniki’s assertions are not credible and constitute hearsay for they contradict what Antony Mwangi Mwaniki had claimed. It was likewise argued that she was not present when the sale transaction was undertaken. 40. On the issue of the amended of pleadings, the learned Magistrate ruled as follows “ As to whether the deceased Antony purchased land from the Defendant of his father, it is my nding that the contradiction between the deceased daughter in the amended plaint and the initial pleadings of the deceased, the court creates doubt on the assertions that a legal land sale transaction existed between the deceased Antony and the Defendant. It was him who was the purchaser as per his pleadings, there is no sucient explanation or evidence by the Plainti why the amended pleadings changed the initial averments that the deceased Antony purchased the suit property from the Defendants father. It is noted that he had not sued the Defendants as an administrator of his father but on his own capacity. This, therefore, is a clear indication that there was no legal sale transaction between either the Defendants late father or himself.” 41. The intention of amending pleadings by parties was elucidated by the Supreme Court in the case of Institute for Social Accountability & another v Parliament of Kenya & 2 others; Commission for the Implementation of the Constitution (Interested Party) [2014] KEHC 7356 (KLR, where the Apex Court held as follows: “ The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and nally intend to rely on. The power of amendment makes the function of the court more eective in determining the substantive merits of the case rather than holding it captive to form the action or proceedings.” 42. Further, in Joshua Kimani v Kiso Enterprises Ltd, Ketan Doshi, Chief Lands Registrar & Attorney General [2020] KEELC 1199 (KLR) the aim of amendment of pleadings was described by J.O. OLOLA J as follows: 6. The Learned Authors of Halsbury’s Laws of England, 4th Ed (Re-Issue), Vol. 36(1) at paragraph 76, state the following about amendments of pleadings: “ …..The purpose of the amendment is to facilitate the determination of the real question in controversy between the parties to any proceedings, and for this purpose the Court may at any stage order the amendment of any document, either on application by any party to the proceedings or of its own motion.…The person applying for amendment must be acting in good faith. Amendment will not be https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18596/eng@2025-12-11 9

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allowed at a late stage of the trial if on analysis of it, it is intended for the rst time thereby to advance a new ground of defence. If the amendment for which leave is asked seeks to repair an omission due to negligence or carelessness, leave to amend may be granted if the amendment can be made without injustice to the other side…” 43. In view of the foregoing statutory provisions and cited authorities, the Appellant’s cause of action was properly anchored on the Amended Plaint dated 30th July, 2021, and not on the original plaint. Accordingly, I nd that the Learned Magistrate fell into error by relying on the Original Plaint, drawing comparisons between the two pleadings. Whether the Respondent’s claim was statute barred 44. One of the grievances advanced by the Appellant in the Memorandum of Appeal is that the Learned Magistrate failed to address the issue of limitation with respect to the Respondent’s counterclaim. The record shows that this issue was rst raised by the Appellant in their Reply to the Defence and Amended Defence to Counterclaim, wherein they indicated an intention to raise a preliminary objection in limine seeking to strike out the counterclaim as being statute-barred. However, despite this pleading, no such objection was ever formally raised before the trial court. 45. The Respondent did not expressly plead the specic point in time at which he discovered that the suit property had allegedly been transferred to the Appellant unlawfully, illegally, and unprocedurally. However, during his testimony on 6th April 2022, the Respondent stated that he only became aware “the other day” that the deceased had been issued with the title deed to the suit property. 46. Section 7 of the Limitation of Actions Act (Cap. 22), which is hereby reproduced, provides that any action for the recovery of land must be instituted within twelve years from the date on which the cause of action arose: “ An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it rst accrued to some person through whom he claims, to that person.” 47. In the case of Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR), the Court of Appeal explained the purpose of limitation of actions as follows: “ The law of limitation of actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending plainti to exercise reasonable diligence and to take reasonable steps in his own interest. Special provision is made for infants and for the mentally unsound. But, rightly or wrongly, the Act does not help persons like the applicant who, whether through dilatoriness or ignorance, do not do what the informed citizen would reasonably have done.” 48. Courts have consistently emphasised that parties to litigation are bound by the contents of their own pleadings. This principle was notably reiterated in the decision of the Court of Appeal Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School [2023] KECA 371 (KLR), where the court stated as follows “ Therefore, the general rule is that courts should determine a case on the issues that ow from the pleadings and the court may only pronounce judgement on the issues arising from the pleadings or such issue as the parties have framed for the court’s determination. It is also https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18596/eng@2025-12-11 10

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a principle of law that parties are generally conned to their pleadings unless pleadings are amended during the hearing of a case.” 49. The record of appeal indicates that the Appellant never formally led an objection seeking the dismissal of the Respondent’s counterclaim, yet they anticipated that the learned Magistrate would determine the issue. Moreover, the specic particulars demonstrating that the counterclaim was statute-barred were neither pleaded nor proved to the requisite standard. Consequently, I nd that the learned Magistrate’s inadvertent failure to address this issue arose as a result of the Appellant’s own omission. A. Whether the deceased lawfully acquired title to L.R. KJD/Ol Choro Onyore/4204. 50. The Appellant contends that he holds an indefeasible and valid title to the suit property, as evidenced by the certicate of ocial search issued on 9th December 2016. According to the Appellant’s submissions, the authenticity of the title was corroborated during cross-examination of the Land Registrar, who conrmed that it was issued following the purchase of the suit property for Kshs.25,000, upon presentation of the Land Control Board consent and the duly executed transfer documents. The Appellant further argues that the Respondent failed to prove that his signature was forged, and did not call any expert witness to substantiate the allegations of fraud levelled against him. 51. In the Amended Plaint, the Appellant claims that he purchased 5 acres of L.R. KJD/Ol Choro Onyore/3491 from the Respondent in 1994 pursuant to an oral agreement. Following the subdivision of the property into three parcels, the Appellant asserts that L.R. KJD/Ol Choro Onyore/4204 was lawfully and procedurally transferred to him in accordance with the terms of their agreement. The Respondent’s contention that only two acres, rather than three, were sold to the Appellant is accordingly disputed. 52. It is undisputed that the Respondent sold portions of L.R. KJD/Ol Choro Onyore/3491 to the Appellant. However, the parties dier on the exact acreage sold and the corresponding purchase price. According to the Plainti/Appellant, the purchase price was Kshs. 25,000, as reected in the transfer instrument dated 5th May 1994. 53. Conversely, the Respondent contends that only two acres were sold to the Appellant at Kshs. 35,000 per acre. He asserts that the Appellant paid only Kshs. 55,000 and subsequently disappeared, only for the Respondent to later discover that the Appellant had unlawfully transferred L.R. KJD/Ol Choro Onyore/4204 into his own name without his knowledge, despite the fact that the Respondent had intended to sell him L.R. KJD/Ol Choro Onyore/4205. Given the unclear circumstances surrounding the transfer, the Respondent alleges that the Appellant exploited his illiteracy to fraudulently acquire a larger portion of the land without the approval of the Land Control Board or execution of the necessary transfer documents. 54. Given that the legitimacy of the Appellant’s title has been vigorously challenged by the Respondent, its authenticity can only be determined by establishing its origin. This principle was rearmed by the Court of Appeal in Presbyterian Foundation (supra) which stated as follows: “ The best evidence of ownership of immovable property is the title deed to it and that is why the question of the root of title is important. Root of title is the deed to which title to a property is ultimately traced to prove that the owner has good title. Accordingly, when there are competing interests as in this case, the parties are required to give evidence of title starting with a "good root of title." A good root of title and an unbroken chain of ownership is required. To be a good root of title, a document must satisfy each of the following requirements: (a) it must deal with or show the origin of the ownership of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18596/eng@2025-12-11 11

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whole legal and equitable interest in the land in question; (b) it must contain a recognizable description of the property; (c) it must not contain anything that casts any doubt on the title.” 55. According to the green card for L.R. KJD/Ol Choro Onyore/4204, opened on 17th May 1994 and produced by Rehab Muthoni Njoroge, a Land Registrar stationed at Kajiado West, the parcel measures 0.81 hectares. During her testimony, the Land Registrar explained that although the Land Control Board consent authorising the transfer of the suit property to the Appellant was dated 1st February 1994, it would have been impossible for such consent to be issued before the green card register for the suit land was opened. However, she was unable to conrm whether the full purchase price of Kshs. 25,000 stated in the transfer instrument had been paid, or whether it related to the entire ve acres. 56. It is important to note that in 1994, when the parties entered into the oral agreement, the provisions of Sections 3(3) and 3(7) of the Law of Contract Act (Cap. 23), which require contracts for the disposition of land to be in writing, were not yet in force and therefore did not apply to their agreement. 57. It is common ground that the Appellant holds a certicate of title issued upon a transfer dated 5th May 1994, purportedly supported by a Land Control Board consent dated 1st February 1994. Under Section 23(1) of the now repealed Registration of Titles Act (Cap. 281), such a certicate is prima facie conclusive evidence of absolute and indefeasible ownership, subject to challenge only on grounds of fraud, misrepresentation or procedural illegality. 58. Both parties challenged each other's title on grounds of irregularity and fraud. It is trite that such allegations must be strictly pleaded and strictly proved. In Vijay Morjaria v Nansingh Madhusingh Darbar & Another 2000 eKLR, the Court of Appeal stated: “ It is well established that fraud must be specically pleaded and the particulars of alleged fraud must be stated on the face of the pleading… The act alleged to be fraudulent must of course be set out and then it should be stated that these acts were done fraudulently… fraudulent conduct must be distinctly alleged and distinctly proved.” 59. On the standard of proof required for claims based on fraud, courts have held that the standard of proof is higher than in ordinary civil cases. In Koinange & 13 others vs Charles Karuga Koinange 1986 KLR, the court held that: “ When fraud is alleged by the Plaintis the onus is on the Plaintis to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.” 60. The evidence recorded before the trial court revealed material inconsistencies that seriously undermine the integrity of the Appellant’s title. The Land Registrar, who is the statutory custodian of land records, testied that the ocial Green Card for L.R. KJD/Ol Choro Onyore/4204 indicates its acreage as 0.81 hectares, whereas the Appellant’s title deed describes the parcel as 2.023 hectares. This is not a minor clerical variance but a material deviation between the register and the title. Titles derive their legitimacy from the register; where the two materially conict, the authenticity of the title is placed in serious doubt. 61. Additionally, the Registrar conrmed that the Land Control Board consent was dated 1st February 1994, yet the Green Card for the suit property was opened on 17th May 1994, making it impossible for a consent to be issued prior to the existence of the land register. The Registrar further indicated https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18596/eng@2025-12-11 12

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that she could not conrm if the consideration of Kshs. 25,000/= indicated in the transfer instrument was ever paid, nor whether it related to ve acres as claimed by the Appellant. Notably, the Appellant produced no documentary proof of payment despite asserting that he paid the full purchase price. 62. These irregularities—an LCB consent predating the opening of the land register, absence of evidence supporting full payment, and a title whose acreage materially contradicts the Green Card—were rightly considered by the trial court as indicators that the Appellant’s acquisition was tainted by procedural impropriety. The burden lay upon the appellant to demonstrate lawful acquisition as well as the fraud allegations levelled against respondent, as required by Sections 107–109 of the Evidence Act. He failed to discharge this burden. 63. In contrast, the Respondent proved that he sold land to the Appellant under a valid oral agreement (oral land sale agreements being lawful in 1994 since Section 3(3) of the Law of Contract Act had not yet been amended). However, he also demonstrated that the Appellant obtained registration for a larger portion than what was agreed, under circumstances the Registrar herself found inconsistent with proper land registration procedures. 64. I am therefore satised that the learned Magistrate neither misdirected herself nor misapprehended the evidence. Her ndings that the Appellant did not prove lawful acquisition of L.R. KJD/Ol Choro Onyore/4204 and that the Respondent’s counterclaim was merited were well-founded, supported by the evidentiary record, and rmly grounded in law. There is no basis for appellate interference. 65. For the foregoing reasons, I nd no merit in this appeal. 66. The upshot is that the appeal herein is dismissed with costs to the Respondent. It is so ordered DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 11TH DAY OF DECEMBER 2025. M.D. MWANGI JUDGE In the virtual presence of: Mr. Mutegi alongside Mr. Musesya for the Appellant Mr. Kuria h/b for Mr. Taliti for the Respondent Court Assistant: Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18596/eng@2025-12-11 13

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