James Kiragu Karaya & Another v Gusii Mwalimu Investment Co. Ltd & 4 Others

JUDGMENT 1. This suit was commenced vide a plaint dated the 10 th May 2022. It is the plaintiffs’ case that they filed the suit as administrators of the estate of their deceased father James Karaya Kiragu who was a member of a land buying company known as Laikipia West Farmers (Ndurumo) L.T.D (“hereinafter LWFL). That by virtue of this membership, the deceased was entitled to Land Parcel No. Marmanet/North Rumuruti Block 2/1289 (Ndurumo). They contend that when LWFL was wound up, the list of its members and their respective entitlements of the land parcels were forwarded to the Land Registrar (the 5 th Defendant herein) to facilitate collection of titles by the said members. That the aforementioned title was registered in the name of the Government of Kenya who held the same in trust for members of LWFL and at the point of collection, the title deeds would be issued to the respective members. ELC CASE NO. E006 OF 2022 JUDGMENT Page 2 of 24

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2. The plaintiffs state that it is during the administration of the estate of their father that they discovered that their father was a member of LWFL, thus they wrote to the 5 th defendant to be supplied with the members register and green card for the parcel of land and its from there that they deduced that their father was entitled to the suit land measuring approximately 38,02 ha. 3. The plaintiffs aver that the 1st defendant was fraudulently issued with the title of the suit land, yet it was not a member of the land buying company, thus the further transfer of the title to the 2nd, 3rd and 4th defendants was also fraudulent. 4. The plaintiffs therefore sought the following orders; “ a) The cancellation of entries 2,3,4,5,6,7,8,9 and 10 in the register for L.R NO. MARMANET/NORTH RUMURUTI BLOCK 2/1289 (NDURUMO) measuring approximately 38.02 ha and a replacement of the same with the names of JAMES KARAYA KIRAGU (deceased) ELC CASE NO. E006 OF 2022 JUDGMENT Page 3 of 24

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the originally entitled owner and a fresh title deed be issued in that regard b) General damages and exemplary damages for fraud and interest there on at courts rate c) Costs of the suit and interest there on at courts rate.” 5. The 2nd defendants opposed the suit vide a statement of Defence dated 2nd August 2022 where they contend that the lawful proprietors of the suit land are clearly contained in the green card and at no point has the deceased been one of them. Further that the plaintiffs have not shown any lawful procedural methods or requisite forms of registration and transfer of government land, thus there is no proof of how the deceased could have acquired interest in the suit land without such critical documents. They aver that they acquired a clean title from the 1st defendant. 6. The 3rd defendant opposed the suit vide a statement of Defence dated the 23rd June 2023 where he avers that the allegations by the plaintiffs have no evidential basis. ELC CASE NO. E006 OF 2022 JUDGMENT Page 4 of 24

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7. The 4th defendant opposed the suit vide a statement of Defence dated the 21st June 2022 where it contends that the green card for the suit land contains records of the proprietors of the said parcel of land since its registration and the deceased is not one of them. It contends that it was a bonafide purchaser of the suit land with the land being registered in the name of Davis Nyamu Njoka as the absolute owner, and upon doing its due diligence, it entered into a sale agreement and paid a consideration of Kshs. 34,761,500, a transfer was done and the title deed was issued in its favour. It denies being privy to any allegations of fraud by the plaintiffs. Plaintiff Case 8. At the trial THOMAS KIRAGU KARANJA testified as PW1. He adopted his witness statement dated the 10 th May 2022 as his evidence and also produced the two list of documents as PXh 1-6. His evidence mirrors their pleadings. 9. In cross examination by Counsel for the 2 nd defendant, Pw1 stated that he is the son of the late James Karaya Kiragu and ELC CASE NO. E006 OF 2022 JUDGMENT Page 5 of 24

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he did succession in year 1994, of which he got a temporary grant which was confirmed , but he did not have the confirmed grant in court. That his father was a member of LWFL as per the documents from the land registry. He stated that the document which shows that LWFL existed was a list of its members. The company no longer exists but he has no evidence to that effect nor does he know when the company was wound up. 10. That in 2021 he made a request to the Land Registrar to be supplied with the list of members and the green card and it is from there that he discovered that his father was a member of LWFL. 11.He stated that the membership register as generated by that company indicated that his father owned land in LWFL and it is that document that gave his father the land. His father did not do adjudication during his lifetime and therefore couldn’t have gotten transfer documents. 12.He further stated that in the green card, LWFL did not become the registered owner of that land and neither was James Kiragu; That the 1st registered owner of that land is ELC CASE NO. E006 OF 2022 JUDGMENT Page 6 of 24

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indicated as the Government of Kenya which he had no issue with, his issue was with entry No. 2 as the indicated owner is not a registered member of LWFL company. That the 2 nd entry ought to be the entity or the person who was a member of the LWFL. Thus all the other entries following entry no. 2 are also fraudulent. He avers that from the green card, 1st defendant got title on 24.9.1992, while Gusii got it on 11.9.2000, about 21 years up to when he filed this suit, thus for about 8 years, the 1 st defendant had the land adding that succession was done in 1994. He stated that by then, they had not discovered the fraud, they only discovered the fraud in year 2021. 13.On cross examination by counsel for the 4 th defendant, Pw1 stated that page 4 of his documents is what he is calling a register of members of LWFL, the 1 st page indicates it’s a Ndurumo register, at page 12 is a list of people in that register with names and number. At page 14 is the green card showing land registered in the name of the government of Kenya and for one to acquire such land, the Land Registrar has to get a copy of the register from the land buying ELC CASE NO. E006 OF 2022 JUDGMENT Page 7 of 24

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company. He does not know what documents the government of Kenya could execute to give land to another person. 14. He stated that even though for the 4 th defendant there is a resolution to buy land, a sale agreement, a title in the name of the 3rd defendant and an official search and further an application for land consent board, the 4 th defendant did not do due diligence on the history of the land, information that could have been obtained from the land registry as a copy of the register of members was there. He is not aware of anything suspect on the face of the green card. 15. In re-examination, PW1 stated that it was not within his reach to get documents like the resolution of LWFL, and that the register he provided was valid because it was provided by the Land Registrar as an official document. He stated that the 1st entry was the government of Kenya and it held the land in trust for the members of the land buying company and the process a member follows to appear in the 2 nd entry is that a clearance form is given to the Registrar who then transfers the land. He stated that the 4 th defendant should ELC CASE NO. E006 OF 2022 JUDGMENT Page 8 of 24

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have done proper due diligence to establish if the original owner was a land buying company and if such company transmitted the relevant documents to the land registrar. The 2nd Defendants Case 16. In the 2nd defendants’ case, FRANCIS MANGANE testified as DW1. He stated that he had been the secretary of Gusii Sacco for over 20 years but he has since retired. However by a resolution of the company, he was appointed to give evidence. In support of his case, he adopted his witness statement dated 16.8.2022 as his evidence in chief and produced a list of documents of even date as D Exhibit 1-10. He reiterates that the first registered owner of the suit land was the government of Kenya and that at no time was the LWFL registered as the owner of the suit land, of which the 1st defendant acquired ownership of the said land from the government on 4.6.1992. He avers that the suit is time barred having been filed 26 years from the time the fraud was discovered in 1994. ELC CASE NO. E006 OF 2022 JUDGMENT Page 9 of 24

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17. On cross examination by counsel for the plaintiff, Dw1 stated that they bought the land from the 1 st defendant and that they had documents to that effect, of which the 1 st defendant in turn got the land from the government of Kenya. That before buying the suit land, he did a search but he cannot find it. 18. On cross examination by counsel for the 4 th defendant, Dw1 stated that the land is no longer registered to the 2 nd defendant as it was transferred to the 3rd defendant. 19. On re-examination Dw1 reiterated that there was no fraud and that all transactions were done as per the law. He would not know where documents between 1st defendant and the government of Kenya were, but at the time of transferring the title to the 3rd defendant, they had a clean title. 4th Defendants Case 20. On the 4th defendants’ case, JOHN KURIA KAMAU testified as DW2 where he introduced himself as a director of Nduti tea factory. He adopted his short witness statement dated the 25.4.2024 where in essence, he was adopting the witness ELC CASE NO. E006 OF 2022 JUDGMENT Page 10 of 24

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statement of one Nancy Ndungu dated the 21.6.2022 as his evidence. He also produced the list of documents dated 21.6.2022 as D Exhibit 1-6 and a further list dated 19.6.2023 as DExhibit 7-13. His case is that on 31.8.2016, they entered into a sale agreement for the suit parcel and a title was then issued in their favour. He is not aware of any fraudulent dealings on the suit land. 21. On cross examination by counsel for the plaintiff, Dw2 stated that he has the green card and a copy of the search, and in the green card at entry 1, it reads Government of Kenya which transferred the land to Gusii Mwalimu under circumstances he does not know, adding that the green card had all information they were required to check. 22. On cross examination by counsel for the 2nd defendant, Dw2 stated that they are the current registered owners of the land and have not been taken to any criminal process for obtaining land fraudulently, adding that the green card had all the information they needed. He does not know under which circumstances Gusii investments transferred the suit land to Gusii Mwalimu. ELC CASE NO. E006 OF 2022 That when they did their search, JUDGMENT Page 11 of 24

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Njoka was the registered owner of the land and he passed a clean title to the 4 th defendant as confirmed by the green card. He avers that at no point was Kiragu a registered owner of the suit land. 23. On re-examination, DW2 stated that the Registrar did not point out any irregularities regarding the title and he equally could not see any problems with the transactions as per the documents produced. 24. STANLEY KORIR testified as DW3 for the 4 th defendant introducing himself as the field service coordinator. He stated that he was transferred there in 2024 where he swapped places with Julius Rioba. Thus he adopted the witness statement of Julius Rioba dated 21.6.2022 as his evidence. He confirmed that he was familiar with said statement. His evidence is more or less similar to that of Dw2. 25. On cross examination by counsel for the plaintiff, Dw3 stated that due diligence was conducted, a green card and a search were availed. That from the green card, it shows that David Nyamu Njoka was the registered owner when the ELC CASE NO. E006 OF 2022 JUDGMENT Page 12 of 24

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purchase was done. That from this historical background, having gotten the green card, they presumed that ownership changed to 3rd defendant and didn’t investigate how ownership left the Government of Kenya to the 1 st defendant. 26. On cross examination by counsel for the 2nd defendant, Dw3 stated that the green card has history of the land and at entry 1, the land was registered to the Government of Kenya which has not been sued, hence that registration was not challenged. That the land was thereafter transferred to Gusii Mwalimu and there was no caution on that transfer, from there it was transferred to Gusii Sacco and there’s equally no caution on the transfer, and it then went to 3 rd and 4th defendants. At no point was James Kiragu a registered owner. He stated that the history of the entries shows that the Government of Kenya had a clean title capable of transfer. 27.On cross examination by Counsel for the 3 rd defendant, DW3 stated that they did not encounter any difficulties in regard to the registration of the 3rd defendant. ELC CASE NO. E006 OF 2022 JUDGMENT Page 13 of 24

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28. GEORGE MUTWIRI testified as DW4 for the 4 th defendant and he introduced himself as the inhouse counsel at KTDA. He adopted his witness statement dated 16.6.2022 as his evidence in chief. His evidence mirrors that of Dw2 and 3. 29. On cross examination by counsel for the plaintiff, Dw4 stated that he was an employee of KTDA though he did not have documents to that effect or a resolution from the company authorizing him to come to court, his predecessor drafted the contract of which he perused the documents. 30. On cross examination by counsel for the 2 nd defendant, he stated he was conversant with the agreement between the 3rd and 4th defendants, that the government of Kenya was the first owner of the suit land and there were subsequent transfers. He avers that the title issued to the government of Kenya has never been challenged, so the subsequent titles are clean and valid. He added that the land in question was not reserved for LWFL, so anyone could have purchased the same. ELC CASE NO. E006 OF 2022 JUDGMENT Page 14 of 24

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31. No evidence was tendered by the 1st, 3rd and 5th defendants. The 3rd defendant was however represented during the trial proceedings. SUBMISSIONS 32. The plaintiffs’ submissions are dated 9.6.2026 where they argue that the late James Karaya Kiragu was the beneficial owner of the suit property by virtue of being a member of LWFL, a land buying company. That following the subdivision and allocation of the company’s land, the deceased became entitled to the suit property, however before the title could be issued to him, the said property found its way to the registrar under unclear circumstances. He contends that the green card clearly shows that the land was registered in the name of the Government of Kenya and there’s no explanation as to how it was transferred to the 1 st Defendant. 33. Citing the case of Munyu Maina V Hiram Gathiha Maina (2013)eKLR, the plaintiffs aver that they have challenged the root of the title on the basis of fraud, it was therefore the defendants’ burden to explain how the suit property was ELC CASE NO. E006 OF 2022 JUDGMENT Page 15 of 24

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acquired which has not been done. They further submitted that the defendants have focused on the most recent registrations while avoiding the most crucial one which is the 2nd entry in favor of the 1 st defendant and once the legality of that entry remains unproved, the entire chain of title becomes vulnerable. That if the 1st defendant did not lawfully acquire title, then it could not lawfully transfer it. They argue that the 2nd defendants’ evidence that they acquired title when the 1st defendant went into liquidation and sold some of its assets, one being the suit land, should fail because a liquidator cannot confer ownership where none existed. 34. The plaintiffs also submitted on non-appearance of the 1 st and 5th defendants and non-participation of the 3 rd defendant inviting the court to draw adverse inference from that omission stating that the 1st defendant was better placed to explain the acquisition of title from the government of Kenya. It was further submitted that pursuant to the holding in Dina Management Limited V County Government of Mombasa & 5 Others, the 4th defendant could not seek refuge under the doctrine of bona fide purchaser for value ELC CASE NO. E006 OF 2022 JUDGMENT Page 16 of 24

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without notice, as such a purchaser ought to establish the legitimacy of the root of the title, hence the “Nemo dat quod non habet” principle that “one cannot give that which one does not possess” is applicable herein. 35. On time bar, it was submitted that as per their evidence, the plaintiffs discovered the fraud in 2021, thus the allegations by the 2nd defendant that they discovered the land in 1994 has no factual basis. 36. The 4th defendants’ submissions are dated 9 th June 2026, where it is argued that the suit is time barred as the plaintiffs acquired the grant in year 1994, adding that the said suit was filed in year 2022, which is 21 years from the time the 1st defendant was registered as the owner of the land. It was submitted that the plaintiffs did not proof their case in tandem with the provisions of Section 107 of the evidence Act. In particular, it was argued that the particulars of fraud as against the 1st defendant were not proved as apart from the green card, nothing else was presented to prove the allegations of fraud. To this end, the 4 th defendant relied on ELC CASE NO. E006 OF 2022 JUDGMENT Page 17 of 24

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the case of Evans Nyakwana v Cleophas Bwana ( 2015) eKLR amongst other cases. DETERMINATION 37. I have considered the pleadings, the evidence adduced as well as the rival submissions. The issues falling for consideration are; whether this suit is time barred, if the answer is in the affirmative, the court will not determine whether the claim of the plaintiffs on ownership of the suit land is merited. 38. At paragraph 9 in the statement of defence of the 2 nd defendant, it is pleaded that; “the alleged fraud having been discovered by the plaintiffs in the year 1994 when the acquisition of the letters of administration was done, twenty six (26) years later any suit must fail as it is filed in violation of the Limitation of Actions Act.” 39. The question as to whether or not the suit is time barred goes to the jurisdiction of this court because if the suit is time barred, then the court lacks jurisdiction to entertain the same. The Limitations of Actions Act, provides for a period of 12 years within which to assert a claim over land. This is ELC CASE NO. E006 OF 2022 JUDGMENT Page 18 of 24

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provided for in section 7 of the Limitations of Actions Act as follows; “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 first accrued to some person through whom he claims, to that person.” 40. Section 26 of the Limitations of Actions Act on the other hand provides for an extension of limitation of time in cases of fraud or mistake wherein time starts running at the point when the fraud is discovered. The said section provides that: “ Where, in the case of an action for which a period of limitation is prescribed, either: a. The action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or b. The right of action is concealed by the fraud of any such person as aforesaid; or c. The action is for relief from the consequences of a mistake, the period of ELC CASE NO. E006 OF 2022 JUDGMENT Page 19 of 24

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limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have found it.” 41. In the case of Rawal v Rawal (1990) KLR cited in Gitau & Another V Baro (Civil Appeal No. 267 of 2023), the court held that: “The object of any limitation is to prevent a plaintiff from prosecuting stale claims on the one hand and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time.” 42. The issue therefore is; when did the cause of action arise. The plaintiffs instituted this suit on 10 th May 2022, of which at paragraph 11 they aver that “it is during the administration of their father’s estate that they discovered that he was a member of LWFL.” 43. The plaintiffs became administrators of their father’s estate in 1994 and ELC CASE NO. E006 OF 2022 they filed this suit in 2022. They have not JUDGMENT Page 20 of 24

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offered any plausible explanation as to why it took them all this time to initiate recovery of the suit land. 44. In the case of Galaxy Paints Company Limited v Falcon Guards Limited Court of Appeal Case Number 219 OF 1998, it was held that; ''issues for determination in a suit generally flow from the pleadings and unless the pleadings are amended in accordance with the Civil Procedure Rules, the trial Court by dint of the aforesaid rules may only pronounce judgment on the issues arising from the pleadings or such issues as the parties have framed for the Court’s determination.” 45. Having acquired the grant in year 1994 and having pleaded that this is the time they discovered that their father was a member of LWFL, it follows then that the plaintiffs were seized of matters relating to the administration of the estate as far back as year 1994! They cannot purport to offer a ELC CASE NO. E006 OF 2022 JUDGMENT Page 21 of 24

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different script during the trial to the effect that they discovered the fraud in year 2021! 46. What more, the plaintiffs have not given any cogent evidence as to how the alleged fraud was discovered. The letter of 17.11.2021 by their advocate to the Land Registrar is simply requesting for the green card and the extract of the members register of LWFL. They are mute on what prompted them to write the aforementioned letter of 17.11.2021. It can only be presumed and rightly so that they had knowledge about this land before the request to the Land Registrar was made. During cross – examination by Counsel for the 4th defendant, Pw1 had this to say; “The 4th defendant didn’t do due diligence on the history of the land. One could have obtained that from the Land Registry. This is because a copy of the register of members was there at land Registry……” 47.The above evidence clearly puts the plaintiffs in a position of knowledge of the alleged “register of members”. They offered no plausible explanation or any explanation at all as to why on their part they did not investigate the history of ELC CASE NO. E006 OF 2022 JUDGMENT Page 22 of 24

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the land prior to year 2021 in the same manner that they wanted the 4th defendant to have done. 48. On the basis of the foregoing analysis, I find that this suit is time barred by virtue of the provisions of Section 7 of the Limitations of Actions Act, thus this court has no jurisdiction to entertain suit. In the circumstances, I find no need to delve into the claim of ownership raised by the parties. In conclusion, this suit is hereby dismissed with costs to the 2 nd and 4th defendants. DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 23RD DAY OF SEPTEMBER, 2026 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of: Yaru/Consolata – C/A ELC CASE NO. E006 OF 2022 JUDGMENT Page 23 of 24

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Mwai M/s for 4th defendant Ombene for 2nd defendant Tebino for 3rd defendant Mathea Gikunju for plaintiff ELC CASE NO. E006 OF 2022 JUDGMENT Page 24 of 24

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