https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3248

Mkota v Mochawa (Environment and Land Appeal E002 of 2025) [2026] KEELC 3248 (KLR) (Environment and Land) (28 May 2026) (Judgment) Neutral citation: [2026] KEELC 3248 (KLR) Republic of Kenya In the Environment and Land Court at Voi Environment and Land Environment and Land Appeal E002 of 2025 EK Wabwoto, J May 28, 2026 Between Joseph Miari Mkota Appellant and Emmanuel Wawole Mochawa Respondent (Being an appeal against the judgment of the Hon. C. Kithinji, Senior Principal Magistrate, delivered on the 7th day of August, 2025, in MCELC CASE NO. E024 OF 2024 at the Magistrates Court at Taveta) Judgment 1.This is an appeal against the judgment of the Hon. C. Kithinji, Senior Principal Magistrate, delivered on the 7th day of August, 2025, in MCELC CASE NO. E024 OF 2024 at the Magistrates Court at Taveta. The Appellant, Joseph Miari Mkota, being dissatisfied with the decision of the trial court, has preferred this appeal on several grounds relating to the transfer and ownership of a parcel of land. 2.The core dispute in this case relates to the ownership and possession of a parcel of land with Land Reference Number 1355 Mboghoni. The Respondent, Emmanuel Wawole Mochawa, is the Plaintiff in the court below, while the Appellant, Joseph Miari Mkota, and his co-defendant Paul Mkota Meari, were the Defendants in the lower court. Grounds of appeal 3.Being dissatisfied with the judgment, the Appellant has now appealed to this Court on the grounds hereinbelow as stated in the Memorandum of Appeal: 4.That the Learned Trial Magistrate erred in law and in fact by failing to appreciate that the transfer of the parcel LR NO.1355 Mboghoni was in 1996 before the purported public auctioned on 31st October, 1998. 5.That the Learned Trial Magistrate erred in law and in fact by failing to appreciate that the public auction of 31st October, 1998 was an exercise in vain as no land was available for sale from Paul Mkota Meari. 6.That the Learned Trial Magistrate erred in law and in fact by failing to make a finding that the vesting order was time barred and not enforceable in law. 7.That the Learned Trial Magistrate erred in law and in fact by totally ignoring and dismissing the credible evidence adduced by the Appellant thereby making an erroneous decision. 8.That the Learned Trial Magistrate erred in law and in fact by making a finding that the Appellant and his father had concluded to defeat justice in the transfer of the suit land which was actually done in 1996 way before the public auction way before 1998. 9.That the Learned Trial Magistrate erred in law and in fact by misdirecting herself on the analysis of the evidence thereby arriving at the wrong decision. 10.That the Learned Trial Magistrate erred in law and fact by summarily dismissing the Appellant's counter-claim without advancing any justifiable reasons. 11.This appeal was heard on the basis of the written submissions filed by the Appellant and the Respondent. The Appellant's case is primarily grounded on the argument that the trial magistrate misappreciated the facts and the law, particularly regarding the timing of the transfer, the validity of the public auction, and the application of the Limitation of Actions Act. Issues for determination 12.Having carefully considered the grounds of appeal, the evidence before the trial court, and the submissions of both parties, the following five issues require determination:i.Whether the transfer of the suit land in 1996 was valid and legal given the circumstances in which it occurred.ii.Whether the public auction of 31st October 1998 was legally conducted and whether there was land available for auction.iii.Whether the vesting order is time-barred and unenforceable under the Limitation of Actions Act.iv.Whether the trial magistrate properly evaluated and appreciated the evidence adduced by the parties.v.Whether the Appellant's counter-claim should have been entertained and determined on its merits. Analysis and determination Issue 1: Validity of the 1996 Transfer and the 1998 Public Auction 13.The Appellant's primary contention is that the transfer of the suit land occurred in 1996, before the public auction on 31st October 1998. This argument, whilst chronologically significant, raises important questions about the legality and validity of transactions involving land. 14.From the evidence before the trial court, it is evident that the Respondent and his father have occupied the suit land since 1972. The Respondent was never called as a witness in the case, but his father, who allegedly purchased the land in 1972, maintained that he never sold the suit land. The Appellant's case relies heavily on a purported transfer to his father and subsequently to himself. 15.The trial magistrate correctly found that the Respondent's father, the original purchaser, had not disposed of the land to the Appellant's father. The evidence demonstrates that the purported contract for the purchase of the suit land was not in writing, which is a significant legal impediment. Section 3(3) of the Law of Contract Act provides that no suit shall be brought upon a contract for the disposition of an interest in land unless the contract upon which suit is founded is in writing and is signed by all parties thereto. 16.The Appellant's reliance on the doctrine of part performance does not avail the Appellant. Even under the part performance exception, the Appellant must demonstrate that he or his father had taken possession of the property or had done some act in furtherance of the contract. The evidence clearly shows that neither the Appellant nor his father ever took possession of the suit land. The Respondent and his father have been in continuous occupation since 1972. 17.The public auction of 31st October 1998 is therefore problematic. If the land had already been transferred in 1996, then there was no land to be auctioned. Conversely, if the land belonged to the Appellant's father, the Respondent's occupation since 1972 would have been trespass, yet no criminal action was ever taken against the Respondent or his father. The absence of any criminal proceedings against the Respondent for alleged trespass is telling. The Appellant had ample opportunity to protect his alleged interests through criminal prosecution, yet chose not to do so. 18.The trial magistrate's finding that the public auction was irregular and the transfer to the Appellant was not legally effected is supported by the evidence and is consistent with the law. A transfer of land without proper documentation and without possession cannot be valid. Issue 2: Application of the Limitation of Actions Act 19.The Appellant relies heavily on the Limitation of Actions Act, contending that the Respondent's claim is time-barred. However, the Limitation of Actions Act cannot be used to shield unlawful and fraudulent conduct. The Act's purpose is to protect defendants against stale claims and to provide finality, not to legitimise illegal transactions. 20.Section 4(1)(a) of the Limitations of Actions Act, provides that actions founded on contract may not be brought after the end of six years from the date on which the cause of action accrued. However, this provision applies to legitimate contractual claims. In the instant case, the Respondent's father alleged purchased the land in 1972, and there was no written contract between the parties. The claim by the Respondent is based on his right as the rightful occupier and heir to the land purchased by his father, not on a stale contractual right. 21.Furthermore, Section 7 of the Limitations of Actions Act provides that 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. This provision is critical. If the Respondent's father purchased the land in 1972 and has been in continuous occupation since then, his right to the land has never been extinguished. The right of action accrues when the original owner ceases to be in possession or when his title is challenged. In this case, the Respondent's father and the Respondent have never ceased occupation of the land. 22.The trial magistrate correctly held that the Limitation of Actions Act does not apply to deprive the Respondent of his right to recover the land. The Respondent is not seeking to enforce a stale contractual right but asserting his continuing proprietary right in the land. As stated in the case of Martha Karwirwa Anthony v Barclays Bank of Kenya Ltd [2019] eLKR, It was stated that a Plaint which is barred by limitation is a Plaint barred by law. Reading these provisions together it seems clear that unless the applicant in this case had put himself within the limitation period by showing grounds upon which he could claim exception, the court shall reject his claim. 23.The Respondent has demonstrated that he has been in possession of the suit land and that the Appellant's alleged transfer and title deed are unlawful and irregular. Therefore, the Limitation of Actions Act does not and should not apply to bar his claim. Issue 3: Appreciation of Evidence and Credibility of Witnesses 24.The Appellant contends that the trial magistrate failed to properly evaluate and appreciate the evidence adduced before her. However, a trial court's assessment of evidence, particularly regarding the credibility of witnesses, is a matter within the discretion of the trial judge. It is only in exceptional circumstances that an appellate court will interfere with such findings. 25.The trial magistrate heard the evidence and observed the demeanour of the witnesses. She found that the Respondent's version was more credible than the Appellant's. The Appellant's case relies on assertions rather than credible evidence. The Appellant's father, who was a party to the alleged 1996 transfer, conveniently chose not to testify. This is a significant omission. An adverse inference can and should be drawn from the failure of a party or witness with knowledge of relevant facts to give evidence. 26.The evidence before the trial court shows that the Respondent's father has maintained consistent testimony that he never sold the suit land to the Appellant's father. No documentary evidence was produced to show the alleged purchase by the Appellant's father in 1996. The title deed produced by the Appellant is tainted with irregularities. The Land Reference Number and the circumstances of its registration raise serious questions about its validity. 27.Furthermore, it is highly suspicious that the Respondent's father, despite being the alleged previous owner, did not take any action for decades to recover possession of the land if indeed he had sold it. Conversely, the Respondent and his father have been actively occupying and using the land for agricultural purposes since 1972. This continuous possession is strong evidence of ownership and is consistent with the doctrine of adverse possession and the presumption of title through long occupation. 28.In the absence of any credible evidence to support the Appellant's claim, the trial magistrate was right to dismiss his counter-claim. The burden of proof lies on the Appellant to establish, on a balance of probabilities, that he has a valid and legal title to the suit land. He has failed to do so. Issue 4: The Respondent's Submissions and Legal Principles 29.The Respondent has correctly submitted that the Appellant's reliance on the Limitation of Actions Act amounts to an admission that the Respondent's right to the suit land subsisted beyond 2006 when the Appellant was unlawfully and illegally registered as the owner. This is an astute observation. The Appellant cannot have it both ways; he cannot claim that he obtained valid title through the 1996 transfer and simultaneously rely on the Limitation of Actions Act to bar the Respondent's claim. Such a position is internally inconsistent and should not be entertained. 30.The Respondent has further argued that the Limitation of Actions Act cannot be used to cloak illegality with legality. This is a well-established principle. In the case of Gathoni v Co-operative Creameries Ltd [1982] KLR 104, the Court of Appeal held that "The Law Limitation of actions is intended to protect defendants against unreasonable delay in bringing suits against them." The Law is not designed to reward fraud or illegality. 31.The registration of the Appellant as the owner of the suit land in 2006, over 30 years after the alleged purchase and transfer, raises serious questions. How was the title deed issued if the land was in the occupation of the Respondent and his father? The evidence suggests that the title deed may have been obtained fraudulently or through collusion between the Appellant and the Land Registry. The Respondent has highlighted that his father died in 2005, yet the title deed was issued in 2006, a suspicious sequence of events. 32.The issue of jurisdiction is also pertinent. The trial magistrate was seised of jurisdiction to hear the matter, and the Appellant did not raise any objection to jurisdiction at the trial. To raise it now on appeal would be an afterthought and should not be entertained. Conclusion 33.Having carefully considered the appeal, the grounds raised, the evidence adduced before the trial court, and the submissions of both parties, this Court finds no merit in the appeal. The trial magistrate correctly applied the law to the facts before her and arrived at a just and equitable decision. Costs 34.Having dismissed the appeal, costs shall follow the event. The Appellant shall bear the costs of this appeal which are assessed at Ksh 40,000/ all inclusive. Final orders 35.For the foregoing reasons, this Court makes the following final orders:I.The appeal is hereby dismissed in its entirety.II.The judgment and decree of the trial court delivered in Taveta MCELC No. E024 OF 2024 on 7th August 2025 is upheld.III.The Appellant shall bear the costs of this appeal to be paid to the Respondent assessed at Ksh 40,000/- all inclusive. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY 2026.E. K. WABWOTOJUDGEIn the presence of:Mr. Wahome for the Appellant.Mr. Mawasi for the Respondent.Court Assistants; Mary Ngoira and David Ngoosa.