https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4926

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT CHUKA** **ELC LAND APPEAL CASE NO. E017 OF 2024** **JOHN MUTHEE MACHEBE........…............................APPELLANT** **=VERSUS=** **JOSPHAT KIRIMI MUCHANGI.........................1ST RESPONDENT** **DISTRICT LAND ADJUDICATION &** **SETTLEMENT OFFICER, THARAKA** **SUB COUNTY.................................................2ND RESPONDENT** **THE HONOURABLE ATTORNEY GENERAL.....3RD RESPONDENT** ***[An Appeal against the Judgment of the Principal Magistrate Court at Marimanti (Hon Mbayaki Wafula, PM), rendered on 20/9/2024 in Marimanti PMC E & L Case No. 4 of 2019]*** **JUDGMENT** **Introduction** 1. This appeal challenges the Judgment of the Principal Magistrate Court at Marimanti [Wafula Mbayaki, PM] dated 20/9/2024, rendered in Marimanti PMC E & L Case No 4 of 2019. One of the key issues that fell for determination in the said suit was whether the registration of the appellant as proprietor of land parcel number **Tharaka/Gituma “A”/336** was procured fraudulently. Invariably, it is one of the issues that fall for determination in this first appeal. Before I analyse and dispose all the issues that fall for determination in the appeal, I will briefly outline the background to the appeal; the grounds of appeal; and the parties’ submissions in the appeal. **Background to the Appeal** 1. Vide a plaint dated 2/3/2019, the 1st respondent sued the appellant; the Land Adjudication Officer – Tharaka Sub County; and the Attorney General, in **Marimanti PMC E & L Case No 4 of 2019**. He pleaded at paragraph 5 of the plaint that he had instituted the suit on behalf of the estate of his late father, **Muchangi Ngutara Kujoga** *[referred to in this Judgment as* ***“the deceased”***]. He averred that, at all material times, the deceased occupied **parcel number 335** measuring 20 acres in **Gituma “A” Adjudication Section**, adding that during land adjudication in the Section, five (5) acres were fraudulently and illegally hived out of the deceased’s land [parcel number 335] and were subsequently registered in the name of the appellant in 2002 as parcel number **Tharaka/Gituma “A”/ 336**. He itemized various particulars of fraud and illegality. He prayed for a declaration that the registration of parcel number 336 in the name of the appellant was obtained by use of fraud. He further prayed for an order cancelling the said registration and decreeing registration of the suit land in the name of the deceased. He alternatively prayed for an order decreeing registration of the suit land [parcel number 336] in his name as a trustee of the estate of the deceased. 2. The appellant filed a defence and a counter-claim dated 2/4/2019, in which he denied the allegation of fraud and illegality. He averred that land parcel number **Tharaka/Gituma “A”/336** was owned and occupied by his late father, adding that during land adjudication in the area, his late father caused the land to be demarcated in his name [*in the appellant’s name*]. He further contended that parcel number 335 and parcel number 336 were demarcated at the same time. The appellant further contended that during land adjudication in the area, the dispute relating to the question of ownership of parcel number 336 was subjected to the land adjudication process to its logical conclusion. During trial, he tendered evidence showing that the 1st respondent, on behalf of the estate of the late Muchangi Ngutara Kujoga, objected to the adjudication register vide **Objection No 3 of 1999** and the said objection was fully heard and conclusively determined on 23/11/2000 through an award in which the adjudication organ found that parcel number 336 belonged to him [*to the appellant*]. 3. The appellant urged the trial court to dismiss the respondent’s suit. By way of counterclaim, the appellant urged the trial court to declare that parcel number 336 legally and lawfully belonged to him. 4. During trial, the 1st respondent testified as PW1 and called three other witnesses who testified as PW2, PW3 and PW4. The appellant testified as **DW1** and called two other witnesses who testified as **DW2** and **DW3.** 5. The District Land Adjudication and Settlement Officer and the Attorney General filed a memorandum of appearance dated 8/9/2020 through **Mbaikyatta Darlive**, Senior State Counsel. They also filed a joint statement of defence dated 15/7/2021 in which they contested the 1st respondent’s claim. They averred that the 1st respondent was indolent and/or failed to utilize the laid down procedure to actuate his claim under the land adjudication statutes. They added that they performed their statutory duties in accordance with the land adjudication statutes, adding that the suit by the 1st respondent was not one of the available avenues of seeking redress under the relevant statutes. They contested the jurisdiction of the trial court and contended that under the relevant land adjudication statutes as well as under the Land Registration Act, the trial court lacked jurisdiction to grant the reliefs sought in the suit. They urged the trial court to dismiss the suit with costs. 6. Upon concluding trial and upon receiving submissions, the trial court rendered the impugned Judgment in which it held that, by failing to lead any evidence to controvert the 1st respondent’s claim, the District Land Adjudication and Settlement Officer and the Attorney General had “acknowledged their malfeasance.” The trial court concluded that the 1st respondent had proved his case on a balance of probabilities. It allowed the 1st respondent’s claim and decreed cancellation of the appellant’s title. It, however, said nothing about the appellant’s counterclaim. **Appeal** 1. Aggrieved by the judgment and decree of the trial court, the appellant brought this appeal vide a memorandum of appeal dated 4/10/2024. The memorandum of appeal was amended on 21/5/2025. The appellant advanced the following six verbatim grounds of appeal:- 2. ***The Trial Magistrate erred in law and fact by delivering a judgement that was against the legal doctrine of exhaustion which in essence requires that where a statute provides a mechanism to resolve a dispute, that mechanism should be exhausted before resorting to court and therefore in essence acting without jurisdiction.*** 3. ***That Trial Magistrate erred in law and fact by delivering a judgement that was in total breach of Section 4(1) e, 2 and 7 of Limitation of Actions Act, Cap 22 Laws of Kenya, which is in essence ousted the jurisdiction of the trial court (sic).*** 4. ***The Trial Magistrates erred in law and fact by entertaining, hearing and delivering a determination on a case based on fraud and which case was time-barred thereby ousting the jurisdiction of the trial court.*** 5. ***The Trial Magistrates erred in law and fact by holding that the respondent had proved fraud as pleaded in paragraph 10 of the plaint thus rendering a judgement that was unfair and unjust to the appellant.*** 6. ***That the Trial Magistrate erred in law and fact by conducting a mistrial by directing and ordering that the primary suit should proceed despite the absence of appellant advocate when the virtual court failed thus depriving the appellant the right to be presented by his advocate of choice and the court acting as though it was the advocate for the appellant.[sic]*** 7. ***The Trial Magistrate erred in law and fact by failing to consider the appellate submissions and defence which clearly set out the law as it is regarding the matter at hand thus rendering a judgement that was manifestly unfair and unjust to the appellant.[sic]*** 8. The appellant prayed for: (i) an order allowing the appeal; (ii) an order setting aside the judgment of the trial court; (iii) an order dismissing the 1st respondent’s suit (the primary suit); (iv) an order allowing the appellant’s counterclaim; and (v) an order awarding the appellant costs of the appeal and costs of the suit in the lower court. **Appellant’s Submissions** 1. The appeal was canvassed through written submissions dated 11/11/2025, filed by **M*/s I C Mugo & Co Advocates***. Counsel for the appellant identified the following as the four issues that fell for determination in the appeal: (i) Whether the Trial Magistrate had the requisite jurisdiction to entertain, hear and determine Marimanti E & L Case No.4 of 2019; (ii) Whether the 1st respondent proved to the required standard the allegations of fraud as pleaded in paragraph 10 of the plaint; (iii) Whether the trial court erred in law and fact by failing to put into consideration the appellant’s defence and submissions which set out clearly the law; (iv) Whether the 1st respondent should be condemned to pay costs of this appeal and costs of the suit in the lower court. 2. On whether the trial court had the jurisdiction to hear the primary suit, counsel for the appellant submitted that the trial court lacked jurisdiction because the doctrine of exhaustion of remedies required the respondent to first pursue remedies under the statutory adjudication process. Counsel further submitted that the dispute arose during land adjudication in **Gituma “A” Adjudication Section**, where the appellant was demarcated as the owner of parcel number 336 and the respondent’s father was demarcated as the owner of parcel number 335. Counsel added that since the dispute was an adjudication contest, it should have been resolved through the adjudication mechanisms before being taken to court. 3. Counsel for the appellant submitted that the 1st respondent never disputed the appellant’s ownership of parcel number 336 at the committee stage and at the arbitration board stage, adding that the 1st respondent only contested the appellant’s ownership at the adjudication register (AR) objection stage through A/R Objection No 3 of 1999, which was fully heard and determined in favour of the appellant in the year 2000. Counsel argued that under Section 26 of the Land Adjudication Act, an aggrieved party was required to lodge an appeal to the Minister, adding that the 1st respondent having elected not to lodge an appeal to the Minister, he closed all the avenues of challenging the appellant’s ownership of the suit land. 4. Counsel argued that under the doctrine of exhaustion of remedies, the trial court lacked jurisdiction to entertain the 1st respondent’s claim. Counsel pointed out that the issue of want of jurisdiction on part of the trial court was brought out during cross-examination and through submissions but the trial court ignored it. 5. Counsel for the appellant further submitted that the 1st respondent’s claim was anchored on fraud, adding that under Section 4(2) of the Limitation of Actions Act, the limitation period for bringing the claim was 3 years. Counsel contended that the ownership dispute between the late Kujoga and the appellant arose during land adjudication and culminated in AR Objection No 3 of 1999 which was determined on 23/11/2000. Counsel contended that the suit which the 1st respondent filed in the trial court in 2019 seeking to annul the adjudication award of November 20000 was statute-barred under the Limitation of Actions Act. 6. On whether the 1st respondent proved fraud to the required standard, counsel for the appellant submitted that the law required the 1st respondent to specifically plead fraud and prove it with cogent evidence above the balance of probabilities but below the requirement of “beyond reasonable doubt”. Counsel argued that the 1st respondent made allegations of fraud but did not tender evidence to prove them. Counsel observed that in his evidence during cross-examination, the 1st respondent admitted that he lodged an objection during land adjudication and the objection was heard and determined in favour of the appellant [*Mr Machebe*]. 7. Counsel further observed that the 1st respondent did not tender any evidence to prove that parcel number 336 was fraudulently excised from parcel number 335. Counsel added that after the 1st respondent lost in A/R Objection No 3 of 1999, he knew that the appellant would lawfully be registered as the proprietor of parcel number 336, hence the allegation of fraudulent registration was baseless. 8. On the contention that the trial court failed to consider the appellant’s defence and submissions, counsel submitted that if the trial court had considered the appellant’s submissions, it could have reflected on the legal issues raised by the appellant regarding the 1st respondent’s case which was anchored on fraud. Counsel added that the appellant raised issues of exhaustion of remedies and jurisdiction of the trial court, which the trial court ignored. 9. On costs, counsel for the appellant urged the court to be guided by Section 27 of the Civil Procedure Act and award the appellant costs of the appeal and costs of the suit in the lower court. **1st Respondent’s Submissions** 1. The 1st respondent opposed the appeal through written submissions dated 19/11/2025, filed by ***M/s Murango Mwenda & Company Advocates.*** Counsel for the 1st respondent identified the following as the four issues that fell for determination in the appeal: (i) Whether the Trial Magistrate had the requisite jurisdiction to entertain, hear and determine Marimanti ELC Case No.4 of 2019; (ii) Whether the trial court erred in law and fact in finding that the respondent proved to the required standard the allegation of fraud; (iii) Whether the trial court erred in law and fact in failing to put into consideration the appellant’s defence and submissions which set out clearly the law; and (iv) Who should pay the cost of this appeal. 2. On whether the Trial Magistrate had jurisdiction to entertain and determine the case, counsel for the 1st respondent pointed out that the 1st respondent instituted the suit in the lower court in his capacity as a representative of the estate of the late Kujoga. Counsel added that only the 2nd and 3rd respondents pleaded the issue of jurisdiction but failed to tender evidence relating to the issue. Citing Order 2 rule 4 of the Civil Procedure Rules, counsel argued that the issue of limitation of action ought to have been specifically pleaded. Counsel submitted that the issues relating to jurisdiction having been raised during submissions they did not arise for consideration by the trial court. 3. Counsel added that even if the issues fell for determination, they did not hold water because the suit land had been registered and was no longer the subject of adjudication under the land adjudication and consolidation law. Counsel contended that the dispute properly fell within the jurisdiction of the trial court. Counsel added that there was no evidence before the trial court to show that there was a dispute between the parties during the land adjudication and consolidation processes. Counsel argued that the dispute was properly before the trial court. 4. On limitation of actions, counsel argued that the cause of action accrued on 23/2/2017 when the 2nd respondent informed the 1st respondent that the suit land was registered in the name of the appellant. Counsel submitted that time started running on 23/2/2017 because that is when the alleged fraud was discovered by the 1st respondent, adding that the suit in the trial court having been filed on 2/3/2019, it was properly initiated within the prescribed limitation period and was not time-barred. 5. On whether the 1st respondent proved fraud to the required standard, counsel made reference to the pronouncement of the Court of Appeal in ***Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR*** and pointed out that the 1st respondent pleaded fraud in paragraph 10 of the plaint. Counsel added that in his testimony, the 1st respondent testified that his late father [the late Kujoga] “walked the whole land during demarcation” and “was given the whole boundary as parcel 335”. Counsel added that the 1st respondent further testified that they had been in exclusive occupation of the suit land all along and that on 23/2/2017, the 2nd respondent informed him that parcel number 336 was recorded in the name of the appellant after it had been excised from parcel number 335. Counsel contended that PW2, PW3 and PW4 corroborated the evidence of PW1. Counsel contended that the appellant did not controvert the evidence tendered in support of the 1st respondent’s case. 6. Counsel for the 1st respondent argued that parcel number 336 measuring 2.09 acres emerged after demarcation and was a fraudulent post-demarcation excision out of parcel number 335. Counsel added that the 1st respondent became aware of the fraudulent excision when he went to collect his late father’s title. Counsel submitted that the 1st respondent properly proved fraud. 7. On whether the trial court failed to consider the appellant’s defence and submissions, counsel submitted that the trial court considered the appellant’s pleadings and submissions, adding that the appellant’s evidence was analysed at page 2 of the impugned judgment. On costs, counsel submitted that costs follow the event and urged the court to dismiss the appeal with costs. **2nd and 3rd Respondents’ Submissions.** 1. The 2nd and 3rd respondents filed written submissions dated 16/1/2026 through ***Ms E Kendi***, *Senior Litigation Counsel*. They urged the trial court to allow the appeal as prayed by the appellant. They itemized the following as the four key issues that fell for determination in the appeal: (i) Whether or not the trial court had jurisdiction to determine the 1st respondent’s suit; (ii) Whether or not the 1st respondent’s suit was statute-barred; (iii) Whether or not the 1st respondent proved his case on a balance of probabilities; and (iv) Who should pay costs of the appeal. 2. On whether the trial court had jurisdiction to determine the 1st respondent’s suit, counsel submitted that, from the pleadings that were filed in the trial court, there was no doubt that the 1st respondent’s claim related to the adjudication process of parcel numbers Gituma “A”/ 335 and 336. Counsel added that the 1st respondent filed Objection No 3 of 1999 which was heard by the Land Adjudication and Settlement Officer and was determined on 23/11/2000 in favour of the appellant, adding that the adjudication process ended at that point and parcel number 336 was registered in the name of the appellant. Counsel observed that both the Land Adjudication Act and the Land Consolidation Act contained clear ownership dispute resolution mechanisms within an adjudication section. Citing various past judicial pronouncements, counsel submitted that jurisdiction could be raised at any stage of the proceedings, including at the appeal stage. 3. Counsel submitted that the 1st respondent admitted in his evidence during trial that after the Land Adjudication and Settlement Officer made a decision on his Objection in 2000, he did not lodge an appeal to the Minister, adding that the 1st respondent having elected not to lodge an appeal to the Minister, the adjudication register became final in relation to parcel number 336 and a magistrate court had no jurisdiction to re-open and entertain the ownership dispute. Counsel argued that courts should only interfere with the decisions of the bodies established under the two land adjudication statutes by way of judicial review proceedings or when a new cause of action accrues after the proceedings before the Minister have closed. 4. Counsel for the 2nd and 3rd respondents submitted that the 1st respondent’s suit offended the doctrine of exhaustion, adding that the trial court had no jurisdiction to hear and determine the 1st respondent’s claim. Among other pronouncements, counsel relied on the pronouncement of the Court of Appeal in ***Speaker of the National Assembly v James Njenga Karume (1992) eKLR***. 5. On whether the 1st respondent’s suit was statute-barred, counsel pointed out that the 1st respondent was economical with the truth in his pleadings and concealed the fact that the ownership dispute over the suit land was the subject of hearing and determination in Adjudication Register (AR) Objection No 3 of1999 in which the 1st respondent was the objector and the appellant was the respondent. Counsel pointed out that the Land Adjudication and Settlement Officer made a determination on the Objection on 23/11/2000 in which he held that the appellant was the legitimate owner of the suit land. Counsel argued that the 1st respondent was not truthful in alleging that he learnt about the fraud in 2017. He faulted the 1st respondent for seeking to mislead the court. Citing Sections 4(2) and 7 of the Limitation of Actions Act, counsel submitted that the 1st respondent’s cause of action accrued on 23/11/2000 and lapsed wholly after expiry of 12 years reckoned from 23/11/2000. Counsel urged the court to find that the 1st respondent’s claim was statute-barred. 6. On whether the 1st respondent proved his claim on a balance of probabilities, counsel submitted that the 1st respondent failed to tender evidence proving the allegation of fraud. Counsel pointed out that Objection No 3 of 1999 was heard and determined in favour of the appellant on 23/11/2000, adding that there was no evidence of any fraud that was committed after disposal of the objection. Counsel pointed out that the 1st respondent did not tender any evidence demonstrating that the adjudication records were tampered with. 7. On costs, counsel for the 2nd and 3rd appellants cited the general principle in Section 27 of the Civil Procedure Act and urged the court to allow the appeal and condemn the 1st respondent to bear costs of the appeal. **Analysis and Determination** 1. The court has read and considered both the original record of the trial court and the record filed in this appeal. The court has also considered the relevant legal frameworks and jurisprudence. The following are the key issues that fall for determination in the appeal: (i) Whether the 1st respondent’s claim was barred by the doctrine of exhaustion of remedies; (ii) Whether the 1st appellant’s claim was statute-barred under the Limitation of Actions Act; (iii) Whether the trial court had jurisdiction to entertain the 1st respondent’s claim; (iv) Whether the 1st respondent proved fraud in the registration of the appellant as proprietor of land parcel number Tharaka/Gituma “A”/336; (v) Whether the appellant proved his counterclaim on the balance of probabilities; (vi) Whether there is merit in this appeal; and (vii) What order should be made with regard to costs of litigation?. I will analyse and dispose the issues sequentially in the above order. Before I do that, I will briefly outline the principle that guides this court when exercising appellate jurisdiction. 2. The task of a first appellate court was summarized by the Court of Appeal in the case of ***Susan Munyi v Keshar Shiani (2013) eKLR*** as follows: ***“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all the evidence and arrive at our own independent conclusions.”*** 1. The principle was similarly outlined in ***Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR*** as follows: ***“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess ad re-analyse 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.”*** 1. Was the 1st respondent’s claim barred by the doctrine of exhaustion of remedies? The court has taken substantial time to go through the pleadings and the documentary evidence that was tendered before the trial court. In his pleadings, the 1st respondent did not disclose that he lodged an objection to the Adjudication Register on behalf of his late father. On his part, the appellant pleaded that during land adjudication in the area, the dispute relating to ownership of land parcel number 336 was subjected to the adjudication process to its logical conclusion, adding that he was adjudicated as the legitimate owner of parcel number 336 while the 1st respondent’s father was adjudicated as the legitimate owner of parcel number 335. On their part, the 2nd and 3rd respondents pleaded that the 1st respondent was indolent and faulted him for failing to utilize the redress mechanisms under the relevant land adjudication statute. They further pleaded that the trial court lacked jurisdiction to grant the 1st respondent the reliefs which he sought through the suit. 2. It is clear from the above pleadings that whereas the 1st respondent withheld information relating to the resolution of the ownership dispute during the land adjudication exercise, the issue of conclusive resolution of the ownership dispute relating to the suit land was pleaded by the appellant, the 2nd respondent, and the 3rd respondent. The issue was also brought out in the evidence and submissions of the appellant. Formal proceedings relating to the dispute [Adjudication Register Objection No 3 of 1999] were tendered as evidence by the appellant. It does emerge from the said formal proceedings that the 1st respondent initiated the said Objection on behalf of his late father and fully prosecuted the objection. He procured a determination that went against his claim on 23/11/2000. He, however, withheld facts relating to the proceedings and the determination by the Land Adjudication Officer. 3. In his sworn evidence-in-chief, he similarly withheld the information. However, during cross-examination, he conceded existence of the Objection in the following terms: ***“The District Land Adjudication Officer dismissed my objection and decided the land 336 belonged to Machebe.”*** 1. In his evidence during re-examination, he stated as follows: ***“I recall Objection 3 of 1999. I lodged it because the land belonged to our father and a portion had been given to John Machebe.”*** 1. It is therefore clear from the pleadings and from the evidence on record that the estate of the late Kujoga, through **Josphat Kirimi Muchangi** [*the 1st respondent*] ventilated its ownership claim over the suit through mechanisms provided under the land adjudication statute. To be specific, the estate ventilated its claim through Adjudication Register (A/R) Objection No 3 of 1999. The Objection was heard and disposed by the Land Adjudication and Settlement Officer vide a decision dated 23/11/2000, in which he found that the suit land belonged to the appellant. What remedy did the estate have under the law? 2. The remedy available to the 1st respondent at that time was found in **Section 29** of the **Land Adjudication Act** which provided and still provides as follows: ***“29. Appeal*** ***(1) Any person who is aggrieved by the determination of an objection under*** [***Section 26***](https://kenyalaw.org/akn/ke/act/1968/35/eng%402023-12-11#part_IV__sec_26) ***of this Act may, within sixty days after the date of the determination, appeal against the determination to the Cabinet Secretary by—*** ***(a) delivering to the Cabinet Secretary an appeal in writing specifying the grounds of appeal; and*** ***(b) sending a copy of the appeal to the Director of Land Adjudication, and the Cabinet Secretary shall determine the appeal and make such order thereon as he thinks just and the order shall be final.*** ***(2) The Cabinet Secretary shall cause copies of the order to be sent to the Director of Land Adjudication and to the Chief Land Registrar.*** ***(3) When the appeals have been determined, the Director of Land Adjudication shall—*** ***(a) alter the duplicate adjudication register to conform with the determinations; and*** ***(b) certify on the duplicate adjudication register that it has become final in all respects, and send details of the alterations and a copy of the certificate to the Chief Land Registrar, who shall alter the adjudication register accordingly.*** ***(4) Notwithstanding the provisions of section 38(2) of the Interpretation and General Provisions Act (***[***Cap. 2***](https://kenyalaw.org/akn/ke/act/1952/7)***) or any other written law, the Cabinet Secretary may delegate, by notice in the Gazette, his powers to hear appeals and his duties and functions under this section to any public office by name, or to the person for the time being holding any public office specified in such notice, and the determination, order and acts of any such public officer shall be deemed for all purposes to be that of the Cabinet Secretary.”*** 1. It does emerge from the evidence on record that the 1st respondent did not pursue the appeal mechanism provided under the law. Consequently, the adjudication register relating to the suit land closed after 60 days. The adjudication exercise in the Section was concluded and titles were issued. After about 19 years, he initiated the suit that gave rise to this appeal. 2. Did the 1st respondent have a legitimate avenue for re-opening the ownership dispute in a subordinate court? I do not think the 1st respondent had a legitimate avenue of reopening the dispute in a subordinate court 19 years after the decision of the Adjudication Officer under Section 26 of the Land Adjudication Act. Our courts have stated umpteen times that the avenue available to a party aggrieved by a decision of the Adjudication Officer under Section 26 is an appeal to the Minister. In ***Amarnath (Suing on behalf of the Estate of the Late Amarnath Gupta) v Kazungu & 2 others (Civil Appeal E033 of 2021) [2023] KECA 1280 (KLR) (27 October 2023) (Judgment),*** the Court of Appeal stated as follows:- ***“The Act is clear that any person aggrieved by a decision made under the Section 26 of the Act must*** ***follow the process under Section 29 and appeal to the Minister. Once the Minister, or the panel delegated to makes a determination, his order is final. That means the Minister’s decision cannot be*** ***appealed, whether under the Act or in Court. The option the Appellant had was to pursue Judicial Review process provided under Article 47 of the Constitution, and the Fair Administrative Action Act, 2015 a statute enacted pursuant to the Article 47 of the Constitution. He could not re-open the case and challenge it except through Judicial Review. The Appellant was attempting to undo the process*** ***he participated in using a process that is not provided for, and that is not allowed”*** 1. Similarly, in ***Julia Kaburia v. Kabeera & 5 Others [2007] eKLR*,** the Court of Appeal stated as follows: ***The Land Adjudication Act provides an exclusive and exhaustive procedure for ascertaining and recording land rights in an adjudication section. By Section 30 (1) (2), the jurisdiction of the court is ousted once the process of land adjudication has started until the adjudication register has been made final ...*** ***In our respective view, the consent envisaged by Section 30 to institute or continue with civil proceedings is not a consent to file a suit challenging the decision of the Land Adjudication Officer himself on the merits of his decision. Rather the consent is given to a person to file a suit or continue with a suit against persons who have a competing claim on the land under adjudication.*** ***This protection was availed to the parties herein by the appellate process which culminates with Section 29 of the Act;*** ***“ (1) Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by-*** ***a. delivering to the Minister an appeal in writing specifying the grounds of appeal; and*** ***b. sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.”*** 1. For the above reasons, the court finds that the 1st respondent’s suit was barred by the doctrine of exhaustion of remedies as legislated under the Land Adjudication Act. Consequently, the trial court had no jurisdiction to entertain the 1st respondent’s suit which, in essence, challenged the award of the suit land to the appellant by the Land Adjudication and Settlement Officer in AR Objection No 3 of 1999. 2. Was the 1st respondent’s claim statute-barred under the Limitation of Actions Act? Although the 1st respondent packaged his suit as a claim anchored on fraud and contended that he discovered the alleged fraud in 2017, it is clear from the pleadings of the other parties to this appeal and from the evidence on record that the appellant was in the year 2000 adjudged by a legitimate organ under the Land Adjudication Act to be the legitimate owner of the suit land. The 1st respondent was privy to the proceedings of the organ and elected not to pursue the appeal mechanisms availed to him by the statute. The 1st respondent was all along aware of the Land Adjudication and Settlement Officer’s award/decision but chose to do nothing about it for 19 years. He woke up after 19 years and sought to recover the suit land on the ground of fraud. 3. Under Section 7 of the Limitation of Actions Act, a claim for recovery of land ought to be lodged within 12 years from the date when the cause of action accrues. In this appeal, the cause of action accrued to the 1st respondent on 23/11/2000. The 1st respondent had the option to initiate judicial review proceedings or file an appeal to the Minister. He elected to keep quiet for 19 years. Clearly, what he took to the subordinate court was a stale claim. 4. The rationale for the law of limitation of actions was aptly summed up by the Court of Appeal in ***Mukuru Munge v Florence Shingi Mwawana & 2 others [2016] eKLR*** as follows: ***“The purpose of the law on limitation of actions is to avoid stale claims, based on the sensible and rationale appreciation that over time memories fade and evidence is lost. The law of limitation therefore seeks to compel claimants not to sleep on their rights and to bring their claims to court promptly. Secondly, the law on limitation of actions ensures that claims are instituted within reasonable time after the cause of action has arisen, so as to secure fair trial when all the evidence is available and to ensure that justice is not delayed. In our minds, those are important constitutional values and principles, which are underpinned by legislation on limitation of actions.”*** 1. Consequently, for the above reasons, the finding of the court on the issue of limitation is that the 1st respondent’s claim was statute-barred under the Limitation of Actions Act. 2. In light of the court’s findings on the two preceding issues, it follows that the jurisdiction of the subordinate court on the claim that was before it stood ousted by the provisions of Section 29 of the Land Adjudication Act and Section 7 of the Limitation of Actions Act. That is the finding of the court on the third issue. 3. Did the 1st respondent prove fraud in the registration of the appellant as proprietor of the suit land? The law on pleading and proof of fraud is well-settled. In ***Vijay Morjaria v Nansingh Madhusingh Darbar & another (2000) KECA 223 (KLR)*** the Court of Appeal outlined the law as follows:- ***“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”*** 1. In ***Koinange & 13 Others v Charles Karuga Koinange [1986] KLR***, the Court of Appeal summed up the law as follows:- ***“When fraud is alleged by the plaintiffs, the onus is on the plaintiffs 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.”*** 1. In the suit that gave rise to this appeal, the 1st respondent ventilated his claim of ownership before an organ established by the Land Adjudication Act through AR Objection No 3 of 1999. The organ returned a verdict in 2000 to the effect that the appellant was the legitimate owner of the suit land. The statute availed an appeal mechanism to the 1st respondent but he chose not to pursue an appeal. What followed was the closure of the adjudication register and registration of the appellant as the adjudicated and legitimate proprietor of the suit land. 2. The 1st respondent’s deliberate concealment of the above facts did not succeed because pleadings and evidence were brought laying everything bare. The climax was the 1st respondent’s concession during re-examination to the effect that he indeed lodged AR Objection No 3 of 1999 and a verdict was returned in favour of the appellant. All these demonstrate that the title which the appellant holds is a product of a statutory land adjudication process that the 1st respondent participated in. The 1st respondent did not tender any evidence to the contrary. 3. Whereas the 1st respondent alleged that parcel number 336 was fraudulently excised out of parcel number 335, he did not tender any adjudication records to support his claim. The trial court’s holding to the effect that failure by the 2nd and 3rd respondents to lead evidence was an “acknowledgement of their malfeasance” was an erroneous interpretation of the law. Under Sections 107 -109 of the Evidence Act, the burden of proof was on the party who alleged. It was the duty of the 1st respondent to prove fraud. He did not prove fraud in the registration of the appellant as proprietor of the suit land. That is the finding of the court on the issue. 4. Did the appellant prove his counterclaim? Through the counterclaim, the appellant sought a declaration that the suit land legally and lawfully belonged to him. He brought the counterclaim as the registered proprietor of the suit land. He tendered evidence showing that the suit land went through the land adjudication process which culminated in him being registered as proprietor of the suit land. Given the above evidence, the court is satisfied that the appellant properly proved his counterclaim and was properly entitled to the declaration that he sought in the counterclaim. 5. In light of the court’s findings on the preceding five issues, it follows that this appeal has merit. The appeal is allowed. 6. On costs, taking into account the circumstances of the appeal, the party who ignored the appeal mechanism under the Land Adjudication Act and subsequently feigned a claim of fraud after 19 years will bear costs of the litigation. That party is the 1st respondent. **Disposal Orders** 1. In the end, this appeal is allowed in the following terms:- 1. ***The Judgment of the trial court dated 20/9/2024 in Marimanti PMC E & L Case No 4 of 2019 is hereby set aside wholly.*** 2. ***The said Judgement is hereby substituted with the following orders:-*** ***(i) The claim by the plaintiff (Josphat Kirimi Muchangi) is hereby dismissed for lack of merit.*** ***(ii) It is declared that land parcel number Tharaka/Gituma “A”/336 legally and lawfully belongs to John Muthee Machebe.*** ***(ii) The plaintiff, Josphat Kirimi Muchangi, shall bear costs of both the primary suit and the counterclaim.*** ***(c) The 1st respondent in this appeal, Josphat Kirimi Muchangi, shall bear costs of the appeal.*** **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF JULY, 2026.** **B M EBOSO [MR]** **ELC JUDGE**