https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4776

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. E014 OF 2024** **CHARLES MEJA MAKOKHA (Suing as the personal** **representative of the estate of** **PETER MAKOKHA-Deceased) ............................. APPELLANT** **VERSUS** **BATHOLOMEW FESTO OLANG…................ 1ST RESPONDENT** **ANDREW WALICE OTSIENO………............. 2ND RESPONDENT** **ALBERT MAYENDE……………...................... 3RD RESPONDENT** ***(Being an appeal against the judgment of Hon. J.R Ndururi, (SPM) delivered on 14th March 2024 in Kakamega ELC Case No. E081 of 2020)*** **JUDGMENT** **Introduction** 1. This appeal arises from the judgment of Hon. J.R Ndururi (SPM) delivered on 14th March 2024 in Kakamega CMC ELC Case No. E081 of 2020. In the impugned judgment, the trial court found that although the appellant’s claim had been brought by way of Originating Summons under **section 37 of the Limitation of Actions Act**, it did not disclose a claim for adverse possession. The court nonetheless considered the matter as an ordinary suit and held that any interest the estate of the late Peter Makokha may have had in Land Parcel No. East/Wanga/Isongo/416 (suit property) had long been extinguished, the late Charles Wanguba and thereafter the respondents having occupied the land since the 1960s. The suit was therefore dismissed with costs. **Background** 1. The suit before the trial court was instituted by the plaintiff (now the appellant) by way of Originating Summons dated 14th December 2020 brought under the provisions of **section 37 of the Limitation of Actions Act** and **Order 37 Rules 1, 5, 8, 9, 11 and 12 of the Civil Procedure Rules.** The appellant, suing as the legal representative of the estate of the late Peter Makokha Anangwe, sought determination of the following issues; 2. **Whether the defendant’s late father held part of title to Land Parcel No. East/Wanga/Isongo/416 in trust for the plaintiff’s /applicant’s late father** 3. **Whether Charles Wanguba Agostino, the defendant’s late father bought only a part or portion of the land which was later registered as EAS WANGA/ISONGO/416 from Peter Makokha, he plaintiff’s late father.** 4. **Whether the defendant’s late father legitimately acquired title to the entire land parcel No. EAST WANGA/ISONGO/416.** 5. **Whether the registration of the land parcel No. EAST WANGA/ISONGO/416 and in the name of Charles Wanguba (Defendant’s father) and he subsequent subdivision is fraudulent, null and void.** 6. **Whether title to land parcel No. EAST WANGA/ISONGO/416 acquired by the defendant’s late father is indefeasible** 7. **Whether the plaintiff and his late father’s estate are entitled to a share in Land Parcel Nos. East/Wanga/Isongo/416.** 8. The summons was supported by an affidavit sworn by the plaintiff on 15th December 2020 in which he deponed that his late father, Peter Makokha Anangwe, was the original owner of Land Parcel No. East/Wanga/Isongo/416 measuring approximately 7.28 hectares. That in 1962, owing to financial difficulties, his father sold only a portion of the land measuring 448 steps in length and a width of 344 steps by 149 steps to the respondents’ late father, Charles Wanguba Agostino, before the seller relocated to Uganda. According to the plaintiff, upon adjudication, Charles Wanguba caused the entire parcel to be registered in his name instead of only the portion purchased. That upon returning to Kenya in 2016, his father discovered that he had been deprived of ownership of the land and unsuccessfully attempted to resolve the dispute through local administration before his death in 2017. That after the death of Charles Wanguba, the respondents caused the original parcel to be subdivided into Land Parcel Nos. East/Wanga/Isongo/1613, 1614 and 1615, whose combined acreage was less than that of the original parcel, leaving approximately 2.3 acres unaccounted for. He maintained that his late father had never sold the entire parcel and prayed that the residual portion allegedly remaining from the original land be restored to his father’s estate. 9. In response to the Originating Summons, the 1st respondent swore a replying affidavit dated 12th February 2021 on his own behalf and on behalf of the 2nd and 3rd respondents. He deponed that their late father, Charles Wanguba, was the absolute and indefeasible registered proprietor of Land Parcel No. East/Wanga/Isongo/416, having been registered as owner during the land adjudication and consolidation process in 1967. He averred that the parcel had been purchased from the appellant’s late father, Peter Makokha Anangwe, in the 1960s and that following their father’s death in 1980, succession proceedings were undertaken through Butere Succession Cause No. 45 of 1981, culminating in the subdivision of the land into East/Wanga/Isongo/1613, 1614 and 1615, which were registered in the names of the respondents. He further stated that the respondents and their predecessors had been in open, continuous and uninterrupted occupation of the land for over fifty years, had extensively utilized it for farming and residence, and that neither the appellant nor his late father had ever occupied or asserted any claim over the property. The respondents denied the existence of the alleged residual 2.3 acres, contended that the appellant had failed to establish any basis for the reliefs sought, and prayed for dismissal of the Originating Summons with costs. 10. The suit proceeded to hearing through *viva voce* evidence. The plaintiff and defendants called one witness each in support of their respective cases. **Plaintiff’s evidence** 1. PW1 was Charles Meja Makokha, the plaintiff and the administrator of the estate of the late Peter Makokha. He adopted his supporting affidavit sworn on 15th December 2020 as his evidence in chief and produced the documents annexed thereto as exhibits, save the document marked CMM3. He testified that he was pursuing a claim on behalf of his late father’s estate for approximately 2.3 acres allegedly remaining after the subdivision of land Parcel No. East/Wanga/Isongo/416. It was his evidence that his late father sold only a portion of the land to the respondents’ late father, Charles Wanguba, and not the entire parcel. That after the respondents subdivided the land amongst themselves, the estate of his late father was deprived of the residual acreage. PW1 further testified that before his father’s death, he had instituted proceedings in Mumias SPMCC No. 120 of 2017, in which the court found in his favor. That however, the decision was subsequently overturned on appeal on the ground that the subordinate court lacked jurisdiction to determine the dispute. He maintained that the estate was therefore entitled to the disputed 2.3 acres. 2. Upon cross-examination, PW1 stated that the suit property was registered in Charles’ name on 16th February 1967 and acknowledged that his father left for Uganda in 1962 and only returned in 2016, though he had no documentary evidence to prove the period of absence. He conceded that the respondents and their family remained in occupation and use of the land and admitted that he had not undertaken any survey to establish the existence or location of the alleged residual 2.3 acres. He acknowledged the existence of a sale agreement between his late father and Charles Wanguba but maintained that the agreement did not relate to the entire parcel. That succession proceedings in respect of the respondents’ late father's estate were undertaken without notifying his family. He further stated that his late father’s remains had not been buried as the family considered the land dispute unresolved. On re-examination, he reiterated that upon returning from Uganda in 2016, his late father immediately demanded the disputed land and maintained that he had sold only a portion, and not the entirety of the suit property. That marked the close of the plaintiff’s case. **Defence evidence** 1. DW1 was Batholomew Festo Olang, the 1st respondent. He adopted his replying affidavit sworn on 12th February 2021 as his evidence in chief and produced the documents contained in the respondents’ list of documents dated 28th March 2022 as exhibits. He testified that his late father purchased the entire suit property and was duly registered as its proprietor in 1967. That following their father's death, succession proceedings were undertaken through which the suit property devolved to the respondents. That neither the appellant nor his family lodged any objection during the succession proceedings and maintained that they were not entitled to any portion of the suit land. That marked the close of the defence case. 2. Upon considering the pleadings, the evidence adduced at trial and the parties’ submissions, the learned trial magistrate found that the appellant had not established a sustainable claim against the respondents. The court therefore dismissed the Originating Summons dated 14th December 2020 with costs to the respondents. 3. Having been dissatisfied with the trial court’s decision, the appellant lodged the present appeal vide a Memorandum of appeal dated 28th March 2024, citing the following grounds of appeal: 4. **THAT the learned trial magistrate erred in both law and fact in dismissing the appellant’s suit by making a finding that the appellant had no cause of action against the respondents.** 5. **THAT the learned trial magistrate erred in law and fact by failing to make a finding that the appellant was entitled to a portion measuring 2.3 acres out of Land Parcel No. East/Wanga/Isongo/416 or subdivisions emanating therefrom.** 6. **THAT the learned trial magistrate erred in law and fact by failing to make a finding that the appellant’s deceased father, Peter Makokha, did not sell the whole of his Land Parcel No. East/Wanga /Isongo/416 to the respondents’ deceased father, Charles Wanguba as its total acreage was 7.28Ha out of which the respondents only shared among themselves a total acreage of 6.38 acres leaving put total acreage of 2.3 acres meant for the appellant and/or his deceased father.** 7. **THAT the learned trial magistrate erred in law and fact in confusing the appellant’s claim to be grounded on principles of adverse possession, when it was not hence misdirecting his mind on the wrong principles of the law on a matter before him.** 8. **THAT the learned trial magistrate erred in law and fact by failing to find that the respondents’ deceased father, Charles Wanguba, by his act of causing registration of the whole parcel of Land No. East/Wanga/Isongo/416 unto himself when he had not bought the whole of it from the appellant’s deceased father, Peter Makokha, was fraudulent.** 9. The appellant prayed that the judgment and all consequential orders be set aside and that judgment be entered in his favor as sought in the Originating Summons dated 14th December 2020, together with costs. 10. The appeal was canvassed by way of written submissions. On record are submissions by the appellant dated 26th March 2026 and submissions by the respondents dated 7th February 2025. **Appellant’s submissions.** 1. Relying on the decision in **D.T Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1**, the appellant submitted that his claim disclosed a valid cause of action founded on ownership, trust and fraud. That his late father, Peter Makokha, owned Land Parcel No. East/Wanga/Isongo/416 and only sold a portion thereof to the respondents’ late father, Charles Wanguba, who thereafter caused the entire parcel to be registered in his name during land adjudication. He averred that the trial court overlooked the sale agreement produced by the appellant as evidence, which showed that only a portion of the suit land was sold, and thus the title held by the respondents for the entire portion was obtained through fraud and could be challenged as per the proviso of **Section 26(1) of the Land Registration Act, 2012**. The court was referred to the cases of **Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna & Another [2013] e KLR** and **Kenya Commercial Bank Ltd v Osebe [1982] KLR 296** to buttress his argument. 2. On whether the appellant was entitled to the disputed 2.3 acres, counsel submitted that the original parcel, East/Wanga/Isongo/416, measured approximately 7.28 hectares while the resultant subdivisions registered in the respondents’ names measured only 6.38 hectares, leaving about 2.3 acres unaccounted for. He argued that the unexplained discrepancy demonstrated that the whole parcel had not been sold by the appellant’s late father and that the unaccounted-for portion remained part of his deceased father’s estate. He further submitted that the respondents’ predecessor held the disputed portion in trust for the appellant’s family, relying on **Kanyi v Muthiora [1984] KLR 712** and **Isaac M’Inanga Kiebia v Isaaya Theuri M’Intari & Another [2018] eKLR** on the principle of customary trusts. He maintained that the omission of the 2.3 acres from the subdivision and title documents constituted an error warranting rectification of the register under **section 79(2) of the Land Registration Act**. 3. On whether the respondents’ late father purchased the entire parcel, the appellant submitted that the sale agreement relied upon showed that Peter Makokha only sold a defined portion measuring 448 steps by 344 steps, and not the whole parcel. That the respondents failed to demonstrate, by credible evidence, that their late father lawfully acquired the unaccounted for 2.3 acres. He cited **Munyu Maina v Hiram Gathiha Maina [2013] eKLR** for the proposition that where title is challenged, the holder must go beyond the title and demonstrate lawful acquisition. 4. Regarding whether the trial court erred by treating the appellant’s claim as one based on adverse possession, the appellant submitted that his claim was founded on ownership, inheritance, trust, fraud and rectification of title. He argued that the Originating Summons and supporting affidavit did not plead adverse possession, and that the trial court misdirected itself by applying principles that were not relevant to the dispute. The appellant further conended that the sale agreement and acreage discrepancy demonstrated that Charles Wanguba acquired more land than he purchased. He prayed for the court to set aside the judgment, declare the registration fraudulent to the extent of the disputed 2.3 acres, order transfer of the said portion to him, and award him costs. **Respondents’ submissions** 1. The respondents submitted that the appellant’s claim was founded on an alleged sale transaction said to have occurred on 21st August 1962 and was therefore statute-barred. Relying on the decision in **Hilton v Sultan S. Laundry (1946) 1KB 61, 81**, they contended that any cause of action arising from the alleged agreement ought to have been brought within six years pursuant to **section 4(1)(a) of the Limitation of Actions Act**, yet the suit was filed in 2020, more than five decades later. 2. On whether the appellant was entitled to the alleged 2.3 acres and whether the respondents’ predecessor fraudulently acquired title to the entire parcel, they submitted that the evidence on record showed that the respondents’ late father, Charles Wanguba, was registered as proprietor of Land Parcel No. East/Wanga/Isongo/416 on 16th February 1967 and that his family had remained in occupation and use of the land ever since. That neither the appellant nor his late father ever occupied the suit property or challenged the registration during Charles Wanguba’s lifetime. They cited the case of **Kuria Kiarie & 2 Others v Sammy Magera [2018] e KLR** and submitted that the appellant failed to prove the alleged fraud, emphasizing that fraud must not only be specifically pleaded but also strictly proved. Counsel averred that the respondents’ title was protected **under section 26 of the Land Registration Act** and that the appellant had failed to produce any evidence demonstrating that the registration of Charles Wanguba or the subsequent subdivisions were fraudulent, unlawful or irregular. 3. Lastly, counsel submitted that Land Parcel No. East /Wanga /Isongo/416 ceased to exist following succession proceedings in Butere Succession Cause No. 45 of 1981 and its subsequent subdivision into Land Parcel Nos. East/Wanga/Isongo/1613, 1614 and 1615. That as such, the reliefs sought in respect of the original parcel were incapable of being granted. The respondents therefore prayed for the court to uphold the judgment of the trial court and dismiss the appeal with costs. **Analysis and determination** 1. The court has carefully considered the appeal, rival submissions and the entire record. The duty of this court as a first appellate court is to reevaluate the record of the trial court and make its own independent conclusions bearing in mind that it had no opportunity to see or hear witnesses and make due allowance for that. 2. In the case of **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR**, the court reiterated the duty of the first appellate court thus; **“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and 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. An appellate court can only interfere with the findings of the lower court where there are compelling reasons. In **Peters v Sunday Post Ltd [1958] EA 424,** the Court held that; **“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide”** 1. Having considered the appeal, the issue for determination is whether the trial court was wrong in dismissing the appellant’s claim on the basis that the same was time barred. 2. It is clear that the appellant filed the Originating Summons dated 14th December 2020 under the provisions of section 37 of the Limitation of Actions Act and Order 37 Rules 1,5, 8, 9, 11 and 12 of the Civil Procedure Rules alleging that the respondents’ late father one Charles Wanguba Agostino held parcel No. East Wanga/Isongo/416 in trust for his father the late Peter Makokha and that the respondent’s father having only purchased a portion and not the whole of the suit property, the registration of the entire parcel in his name was done fraudulently. 3. Section 37 of the Limitation of Actions Act provides for the application of the Limitation of Actions Act to registered land under all registration regimes including land registered under the Government Lands Act (repealed), Registration of Titles Act (repealed) the Land Titles Act (repealed) and the Registered Land Act (repealed) just as it applies to land that is not registered. In juxtaposing the claim made by the appellant before the trial court and the cited provisions of Section 37 of the Limitations Act, the appellant was not clear on the applicability of the said provision on his claim. 4. The appellant also anchored his Originating Summons on Oder 37 of the Civil Procedure Rules which provide for suits that may be commenced by way of Originating Summons. Again, the appellant was not clear on the nexus between his claim and the said legal provisions considering that his claim was based on trust and allegations of fraud. As the trial court rightly found, the appellant’s claim ought to have been instituted by way of plaint. Nevertheless, want of form did not invalidate his claim as rightly found by the trial court. The trial court however referred to section 37 of the Limitation of Actions Act but wrongly cited section 38 which refers to a claim for land under the doctrine of adverse possession. The court went further to refer to sections 7 and 13 of the said Act and found that before an applicant invokes section 37, he must prove adverse possession. The trial court found that the appellant having failed to make a claim for adverse possession, had no right to invoke the special jurisdiction and procedure under Order 37. 5. A reading of Order 37 of the Civil Procedure Rules on who may take out Originating Summons show that it is not only a claim for adverse possession that can be commenced by Originating Summons. That notwithstanding, the trial court found that the alleged error was not fatal. 6. On whether the suit was time barred, the trial court cited section 7 of the Limitation of Actions Act and found that the respondents’ father having been in occupation of the suit property since the 1960s, any interests of the appellant thereon were extinguished a long time ago. On that basis, the trial court found that the appellant had no cause of action and that the suit was defeated by section 7 of the Limitation of Actions Act. 7. On whether the appellant’s suit was defeated by virtue of section 7 of the Limitation of Actions Act, that provision bars a person from filing a claim on land after 12 years from the date the cause of action arose. However, it is trite that a claim predicated on trust cannot be time barred. 8. Section 20 of the Limitation of Actions Act provide that none of the periods of Limitation prescribed in the Act apply to an action by a beneficiary of a trust or in respect of a fraud or fraudulent breach of trust. In the case of **Macharia Kihari v Ngigi Kihari [1994] KLR** he court held that the Limitation of Actions Act does not apply to a trust. 9. Regarding fraud, section 26 of the Limitation of Actions Act provide that time starts running from the date the fraud was discovered by the plaintiff. In the instant case, the appellant stated that his father came back in 2016 from Uganda and noted that the entire parcel was in the respondent’s name. From 2016 to 2020 when this suit was filed, is a period of four years, which is less than he period of 12 years prescribed in section 7 of the Limitation of Actions Act. In view of the above, I find and hold that the suit before the lower court was not time barred. In the premises, I find and hold that the trial court was wrong in dismissing the appellant’s case on the basis of the provisions of section 7 of the Limitation of Actions Act. 10. I will now address the merits of the appellant’s claim. The appellant sought the suit property claiming that the respondents’ late father purchased a portion thereof and not the entire parcel and that the original title No. 416 measuring 7.28 Ha, upon subdivision, resulted in a total of 6.38 Ha leaving 2.3 acres unaccounted for, which belong to the appellant. This claim was denied by the respondents. The court in its judgment dated 14th March 2024 dismissed the appellant’s claim on the basis that the appellant had no cause of action against the respondents by dint of section 7 of the Limitation of Actions Act. 11. Section 28 (b) of the Land Registration Act provides that overriding interests that affect registered land, without being noted in the register include trusts. 12. The Black’s Law Dictionary 11th Edition defines “trust” as follows; **“The right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title.”** 1. On whether trust was proved, it is trite that the burden of proof in a case rests on the plaintiff. In this case, the appellant alleged existence of trust and it was therefore upon him to prove the same. The appellant argued that the respondent’s father purchased part and not the entire suit property. The proceedings show that he relied on an alleged sale agreement written in a language that is not the language of the court. There was no interpretation of the said agreement. Even then, no agreement was produced to support the appellants allegations. 2. On the other hand, the respondents produced several agreements to show that the entire suit property was sold to the respondents’ father. In any event, during his lifetime Peter Makokha did not sue the respondent’s father allegations of trust or fraud or that he did not sell the entire parcel. In addition, the respondents’ father was the first registered owner after adjudication. The allegation that the respondent’s father did not buy the entire parcel was never raised during the adjudication process. While a claim based on trust is not time barred, no reason was given why, if indeed part of the suit property belonged to Peter Makokha, for over 50 years, no claim was made, especially in view of his assertion of fraud. Besides, there is no specific acreage pleaded to have been held in trust. All the appellant pleaded in the Originating Summons was that part of the suit property was held in trust. The appellant submitted that because the suit property on subdivision left 2.3 acres unaccounted, the unaccounted portion belongs to him. This is despite the fact that he was unable to show where the said 2.3 acres were. The appellant’s argument is simplistic and cannot form the basis for a claim of land based on trust as the acreage in the title is an approximation and subdivision of land is not necessarily a mathematical process in view of several considerations applied in land subdivisions including creation of access roads and the actual acreage on the ground at the time of subdivision. Besides, the appellant did not demonstrate the nexus between what he alleged was sold and what he referred to as unaccounted land measuring 2.3 acres. I am therefore convinced that the late Charles Wanguba purchased the entire suit property and did not hold any land in trust for the appellant. 3. It is trite that fraud ought to be pleaded and strictly proved, on a standard slightly higher than that required in ordinary civil cases, but slightly lower than that required in criminal cases of beyond reasonable doubt. (See **Vijay Morjaria v Nansingh, Madhusingh Darbar & Another (2000) e KLR**). In the instant case, the appellant did not plead the particulars of fraud, and no fraud was proved. 4. In the premises, I find and hold that the appellant failed to prove his claim in the lower court. Therefore, the findings and orders of the trial court are hereby set aside and substituted with orders that the appellant’s suit was not time barred; however, the appellant failed to prove his claim as pleaded in the Originating Summons dated 14th December 2020 and the same is hereby dismissed with costs to the respondents. 5. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 15TH DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Appellant in person No appearance for the respondents Court Assistant- Delphine