Ole Sasiru v Ole Kilusu & another

ii. That the Learned Trial Magistrate erred in law and in fact in nding that the 1st Respondent title was protected by law despite being procured in total disregard to legal requirements such as agreement for sale Land Board Consent, duly executed transfer forms and spousal consent. iii. That the Learned Trial Magistrate erred in law in fact in drawing a general inference that P.W.1, P.W.2 AND P.W.3 had knowledge of the impugned transfer and registration. iv. The Learned Trial Magistrate erred in law and in (sic) nding that time started running against the Appellant’s claim in 1999. v. That the Learned Trial Magistrate erred in Law and in (sic) relying on the Land Registrar’s report instead of making her own independent decision based on the available evidence. 3. On the strength of the above, the Appellants sought for the prayers set out at paragraph 1 of this Judgment. 4. Upon admission of the Appeal directions were given for the disposal of the Appeal by way of written submissions. Both sets of submissions as led by the Appellant through Messrs. Tawo, Maito and Co. Advocates and by the Respondents as led by Messrs. Ochwangi and Co. Advocates are on record. Appellants Submission. 5. The Appellant has framed and submitted on 3 issues for determination. On issue one, to wit, whether the 1st Defendant acquired an indefeasible title, the Appellant submits that the defendant did not produce an Agreement for sale, Land Control Board consents and/or duly executed transfer forms over the suit property and that any disposition over the suit property was in contravention of section 3 of the law of contract Act hence the Respondent did not acquire any interests. In support of this proposition the Appellant cited 4 decisions; including the case in i. Katende vs Haridar and Co. Ltd ii. Weston Gitonga and 10 Others vs Peter Rugu Gikanga and Another (2017). iii. Joseph Karua Ngareh vs Mary Gathoni Kihara and 2 Others (2018) eKLR. 6. On whether the suit was time barred, the Appellant submits that time did not start running in 1999, but started running when the Plainti/Appellant conducted a search on the suit property and 7 discovered the fraudulent transfer on 7/10/2021. 7. On issue 3, whether or not the court was bound by the proceedings before the Land Registrar, the Appellant submits that the court was not bound by the said proceedings. 8. On the strength of the above the Appellant submits that the Appeal be allowed. Respondents Submission. 9. The Respondent submitted on a preliminary point, of the Appeal having been led by a dierent person from the original plainti before the trial court, in that at the trial court the plainti was Naswa Ole Nasiru but Appeal was lodged by Naswa Ole Sasiru hence the Respondent submits that the Appeal herein was led by a stranger; and urges the court to dismiss it. 10. The Respondent further submits that the Appeal herein was led by another law rm than the one that was on record at the trial court hence in contravention of Order 9 Rule 9 of the Civil Procedure Rules thus they urge the court to dismiss the same. In support of this limb of submission, the 1st Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18729/eng@2025-06-30 2

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relies on the decisions in the cases of Samuel Kiplangat Chelule and others versus Alice Wanjiru Kuria, James Ndonyu Njogu vs Muriuki Macharia. 11. The 1st Respondent further submits that suit herein having been led on 5th November 2021 is time barred as the cause of action occurred on 28th of July 1999, hence 12 years had lapsed, in contravention of section 7 of the limitation of Actions Act. 12. On the strength of the above the 1st Respondent submits, for the dismissal of the Appeal. 13. The 2nd Respondent did not participate in the Appeal. 14. The court frames the following as issues for determination as herefollows; i. Whether the Appeal is competent in view of the name of the Appellant diering from the name of the Plainti before the trial court and in view of the alleged contravention of Order 9 Rule 9? ii. Whether or not the suit before the trial court was time barred? In determine this issue the court shall also determine when the cause of action arose in the matter? iii. Whether or not the Appeal is merited, what reliefs ought to issue? iv. Who bears the cost of this Appeal? Analysis And Determination? 15. The court is aware of its duties as a rst Appellate court; “re-considering the evidence, evaluate it itself and drawing its own conclusion…” as stated in Selle and Another Vs. Associated Motor Boats. 16. In exercise of the said duties, the court has analysed the record of Appeal in toto. 17. On issue number 1, the 1st Respondent submitted that the name of the Appellant herein is dierent from the plainti in the trial court. The plainti before the trial court did le a copy of his National Identity Card, the same is exhibited at page 26 of the record of Appeal and the names are Nawa Ole Nasiru, the Appeal herein has been lodged by Naswa Ole Sasiru. 18. The 1st Respondent is indeed right that the Appeal may have been lodged by another person other than the party who participated before the trial court. Is this fatal to the Appeal? The Appellants did not submit on this issue, due to the identical nature of the two names, there is a possibility that they could be two dierent persons, or again there is a likelihood that the same is a typographical error which is curable under Article 159 (2) (d) of the constitution and the court deems the same to be a typographical error and hence curable under Article 159 (2) (d) of the Constitution hence same is not fatal. 19. On the related issue that the Appeal was led by a Messrs Tawo, Maito Advocates which is a dierent law rm from Nyagaka S.M and Co. Advocates which acted for the plainti before the trial court, thus contravening Order 9 Rule 9 of the Civil Procedure Rules. 20. The court of Appeal in its decision in the case of Tobias M. Wafubwa Vs. Ben Butali 2017 eKLR, observed that an Appeal is a new proceedings hence parties should therefore a right to choose whether to remain with the same counsel or not. 21. The court held interalia “we are of the same view and would adopt the same approach in its entirely in matters concerning appeals once a judgment is entered save for matters such as applications for review or execution is entered, interalia, an Appeal to an Appellate court is not a continuation of proceedings in the lower court but a commencement of new proceedings in another court where dierent rules may https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18729/eng@2025-06-30 3

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be applicable for instance, the court of Appeal rules 2010 and the Supreme court Rules 2010, parties should therefore have the right to choose whether to remain with the same counsel or to engage another counsel on appeal without being required to le a Notice of Change of Advocate or to obtain leave from the concerned court to be placed on record in substitution of the previous Advocates.” (Emphasis added). 22. In view of the legal position as expounded above, the contention by the 1st Respondents is certainly misplaced. 23. The court therefore nds in respect of issue number 1, that the Appeal herein is competent and shall proceed to examine the other issues it has framed. 24. On issue number 2, the trial court found that the cause of action arose when the 1st Respondent was registered as the proprietor of the suit property Transmara/Mapashi/183 on 28th July 1999. 25. The Appellant had pleaded fraud in his Plaint at paragraphs 6 and 7 and particularised the same at paragraphs (7 a-j) appearing on pages 9 and 10 of the record of Appeal when read together with paragraph 5 of the said Plaint. The inference is that the fraud complained of was with regard to the registration of the 1st Respondent as the proprietor of Transmara/Mapashi/183. 26. The Appellant as the plainti did not plead the date that the fraud was discovered. 27. Similarly, in his witness statement that he adopted as part of his evidence in chief, appearing at page 18 of the record of Appeal, the Appellant as plainti stated 28th July 1999 as the date when the 1st Respondent registered himself. The Appellant, as Plainti testimony appearing at paragraph 132-33 of Record of Appeal, as well as the cross-examinations at pages 133 - 135 did not allude to the issue of when he discovered the fraud. 28. From the analysis above the Appellant did not plead and/or lead evidence before the trial court as to when he discovered the fraud. This is signicant because parties are bound by their pleadings. The issue of discovery of fraud was not therefore not an issue before the Learned Magistrate who found that the suit was statute barred, basing on the date of registration of the 1st Respondent as proprietor as pleaded in the plaint and as with stated in the witness statement. 29. Curiously the Appellant in his submissions before this court submits that the cause of action arose on the discovery of frauds on 07.10.2021 and hence suit was not time barred. 30. It is trite law, that submissions are not evidence, as was held various dictas, including, the court of Appeal decision in Daniel Toroitich Arap Moi Vs. Mwangi Stephen Murithi and Another (2014) eKLR, and Nganga and Another Vs. Owiti and Another 2008 (KLR) EP749. In the Daniel Arap Moi decision, the court observed as follows; “ ……submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to counternance it. Submissions are generally parties “marketing language”, each side endeavouring to convince that its case is the better one. Submissions we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented…..” 31. In light of the above, the Learned Magistrate was right in nding that the cause of action from the pleadings and evidence before her, arose on the 28th July 1999 and the suit having been led in 2021 was statute barred by virtue of section 7 of the Limitation of Actions Act, and this court for the reasons advanced above reaches the same conclusion. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18729/eng@2025-06-30 4

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32. In answer to issue No. 2 the court nds that the suit before the Magistrate court was statute barred and the Appeal equally is time barred. 33. Having found that the suit was statute barred, the court shall not proceed to deal with issue number 3 on the merits or otherwise of the Appeal as the Appeal suers the inevitable fate of being dismissed as the suit was time barred in the outset. 34. The upshot is that the Appeal herein is dismissed with costs to the 1st Respondent. DATED AT KILGORIS THIS 30TH DAY OF JUNE, 2025. HON. M.N MWANYALE JUDGe In the presence of CA – Emmanuel/Sylvia/Sandra Mr. Ochwangi for 1st Respondent Mr. Ranah for 2nd Respondent Mr. Tawo for the Appellant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18729/eng@2025-06-30 5

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