https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4399

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC NUMBER APPEAL NUMBER E039 OF 2026** PETER MURIUKI M’RINGERA ………………………...….1ST APPELLANT PURITY MUKIRI MURIUKI…………………………..……2ND APPELLANT WINFRED KANANA KAARIA ………………………….....3RD APPELLANT COLLEN KANORIO…………………………………...…….4TH APPELLANT MARY GACHERI MURIUKI……………………..…………5TH APPELLANT VERSUS SIMON KITHINJI MUTEA.……………………………..…1ST RESPONDENT MARTHA MWARI MEME………………………..………2ND RESPONDENT KIGUNDA NGATU………………………………………3RD RESPONDENT ***[Being an appeal from the Judgment and Decree of Honorable Edwin Nyaga Muriuki - Chief Magistrate delivered in the MCELC E009/2023 at Githongo on the 18.03.2026]*** **JUDGMENT** 1. The Appellants herein *[who were the plaintiffs in the lower court]* filed the plaint dated the 22.03.2023, and wherein the Appellants’ sought various reliefs. The claim before the lower court was premised on several assertions. The assertions included: The 1st appellant herein was the registered owner/proprietor of LR No. Abothuguchi/Mariene/1254 [hereinafter referred to as the original parcel of land]; the original parcel of land was subsequently divided into two portions; the resultants portions included of LR No. Abothuguchi/Mariene/1323 and 1324 [hereinafter referred to as the suit properties]; the suit properties were thereafter transferred to and registered in the names of the 1st appellant and his two sons; the 1st respondent procured the transfer and registration of of LR No. Abothuguchi/Mariene/1323 into his name; thereafter the 1st respondent transferred the said property to the 2nd respondent; and the transfer in favour of the 1st respondent was fraudulent and illegal. 2. Additionally, the Appellants’ contended that: The transfer of LR No. Abothuguchi/Mariene/1323 to and in favor of the 1st respondent was discovered in the year 2020; the impugned transfer is indicated to have been premised on an unenforceable sale agreement; and the 1st respondent has no lawful rights to and in respect of LR No. Abothuguchi/Mariene/1323. 3. Furthermore, the Appellants’ contended thus: The 1st respondent is equally purporting to own of LR No. Abothuguchi/Mariene/1324; the 1st respondent has caused the 3rd respondent to enter upon and take possession of LR No. Abothuguchi/Mariene/1324; the 3rd respondent has since erected/constructed a house thereon; the actions by /on behalf of the 3rd respondent constitute trespass; the 3rd respondent has no lawful rights over and in respect of LR No. Abothuguchi/Mariene/1324. 4. Based on the foregoing, the Appellants’ invited the trial court to find and hold that the transactions affecting the suit properties, were taken fraudulently and illegally. In addition, the appellants’ sought to have the certificate of title in favour of the 1st and 2nd respondent[s] to be cancelled; and eviction order be issued against the 3rd respondent. 5. The Appellants’ ventured forward and particularized fraud and illegality as against the respondents. In particular, the Appellants’ sought the reliefs, whose details are captured [highlighted] at the foot of the Plaint dated 22.03.2023. 6. The Respondents duly entered appearance and filed a statement of defence and counter claim. The statement of defence and counter claim is dated the 29.06.2023.The Respondents denied the claims by /on behalf of the Appellants . 7. Moreover, the 1st respondent herein ventured forward and contended that the 1st appellant entered into and executed a lawful sale agreement to sell a portion of the original parcel of land; the sale agreement was reduced into writing; the 1st appellant was duly paid the purchase price; the purchase price was acknowledged; and the 1st appellant undertook to facilitate the subdivision of the original parcel of land; and to transfer the sold portion to the 1st respondent. 8. Besides the 1st respondent also posited thus: The 1st appellant also entered into and executed a sale agreement in respect of LR No. Abothuguchi/Mariene/1323; the sale agreement was reduced into writing; the 1st appellant was paid the purchase price; the 1st appellant transferred the named parcel of land to the 1st respondent; the sale and transfer of the land was consented by the co-proprietors of the land; the land was lawfully transferred; and thereafter the 1st respondent transferred the land to the 2nd respondent. 9. It was equally contended that the though the 1st appellant had promised to transfer of LR No. Abothuguchi/Mariene/1324 to the 1st respondent, the 1st appellant reneged on the promise. In addition, it was posited that the failure by the 1st appellant constitute[s] breach of the sale agreement/contract. To this end, the 1st respondent sort an order to compel the 1st appellant to transfer the land in question to the 1st respondent and in default, the Deputy Registrar to execute the transfer documents. 10. The suit in the lower court was heard and disposed of *vide* the Judgment delivered on the 18.03.2026, whereupon the learned trial magistrate [ Hon. Nyaga – Chief Magistrate] found and held that the appellants had not proved their claim to the requisite standard. On the contrary, the trial court found that the 1st respondent had proved his counter claim. In the premises, the trial court dismissed the Appellants’ suit, while on the other hand entering Judgment in terms of the counter claim by the 1st respondent. 11. Dissatisfied with the Judgment and the consequential decree, the Appellants’ mounted the appeal *vide* memorandum of appeal dated the 15.04.2026. The grounds at the foot of the memorandum of appeal are: 12. ***That the learned trial magistrate erred in law and fact by finding that Patrick Mwenda and Kimathi Muriuki were adults in 2001 when the sale of land agreements were made between the 1st Respondent and the 1st Appellant when the minors interest in the suit lands had not been discharged or dissolved and despite the 1st respondent having stated the Kimathi Muriuki was a minor.*** 13. ***That the learned trial magistrate erred in law and in fact in the he failed to find the agreement which had been entered for the sale of land to the 1st respondent in respect of the Land L R No. Abothuguchi/Mariene/1324 was not signed by Kimathi Muriuki as he was a minor.*** 14. ***That the learned trial magistrate erred in law and in fact by finding that the Patrick Mwenda and Kimathi Muriuki had not been joined in these proceedings whereas the parcel of Land LR No. Abothuguchi/Mariene/1323 had already been transferred to the 1st respondent and thereafter the 3rd respondent hence there was sufficient evidence to impeach the acquisition of the said title.*** 15. ***That the learned trial magistrate erred in law and in fact in that he failed to find that the issue before the court was the root of the title over the suit land L/R No. Abothuguchi/Mariene/1323 and hence there was sufficient evidence to impeach the said title.*** 16. ***That the learned trial magistrate erred in law and in fact that he failed to find that the agreement dated 04.8.2008 for the sale of L. R No. Abothuguchi/Mariene/1324 was not enforceable as it had minor’s interests.*** 17. ***That the learned trial magistrate erred in law and in fact in that he failed to find the 1st respondent stated that the sold the land to the 3rd respondent and yet the copy of the register was clear that the land was transferred to the 3rd respondent on the basis of the a gift.*** 18. ***That the learned trial magistrate erred in law and fact in that he failed to find that the Appellants proved fraud against the Respondents on a balance of probabilities.*** 19. ***That the learned trial magistrate erred in law and in fact by failing to wholly analyze all the evidence before the court with the resultant wrong findings in his judgment.*** 20. ***That the learned trial magistrate erred in law and in fact in that he failed to find that 1st respondent’s counter claim was not maintainable as it was time and statute barred.*** 21. ***That the learned trial magistrate erred in law and in fact he failed to consider the Appellants submissions and the judicial authorities therein.*** 22. ***That decision of the learned trial magistrate is against the weight of the evidence, the same is bad in law and should be set aside.*** 23. The appeal came up for directions on the 13.05.2026 whereupon learned counsel for the Appellants intimated to the court that same had filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. Moreover, learned counsel sought directions as pertains to the hearing and disposal of the appeal. 24. With the concurrence of learned counsel for the respondents, the court proceeded to and issued directions as concerns the hearing and disposal of the appeal. The directions were: The appeal shall be heard before one judge sitting at Meru, for one [1] day; the appeal shall be canvassed by way of written submissions; the Appellants shall file and serve written submissions within 14 days from the date of the directions; the Respondents shall file and serve written submissions within 14 days from the date of service; and the Appellants shall have liberty to file rejoinder submissions [if any] within 7 days from the date of service. 1. The Appellants filed written submissions dated the 25.05.2026 and wherein the Appellants have highlighted and canvassed three [3] key issues. The issues are: Whether the sale agreement[s] affecting the suit properties were valid and enforceable in light of the fact that the proprietors included minors; whether fraud and illegalities were proved against the respondents; and whether the 1st respondents’ counter claim was statute barred. 2. Regarding the first issue, learned counsel for the Appellants’ has submitted that the suit properties, which are said to have been sold to and in favour of the 1st respondent were registered in the names of Peter Muriuki M’Ringera [1st Appellant]; Patrick Mwenda [minor]; and Kimathi Muriuki [minor]. To this end, it was contended that no sale agreement could have been entered into and executed in respect of the suit properties, during the time when the co-proprietors were minors. 3. Additionally, it has been submitted that the impugned sale agreements, which are being relied upon by the 1st respondent were only executed or indicated to have been executed between the 1st Appellant and the 1st Respondent only. For good measure, it has been posited that neither Patrick Mwenda nor Kimathi Muriuki executed the impugned sale agreements. 4. In view of the foregoing, it has been submitted that the sale agreements, which are being relied upon by/on behalf of the 1st respondent were invalid; illegal; and unenforceable. To this end, it was submitted that the learned trial magistrate was in error in finding and holding that the impugned agreements were valid and lawful. 5. Secondly, it has been submitted that the Appellants tendered and adduced credible/ plausible evidence to show that the transfer and registration of LR No. Abothuguchi/Mariene/1323 in favor of the 1st respondent; and thereafter in favour of the 2nd respondent was underpinned by fraud and illegality. However, it was submitted that the learned trial magistrate ignored the evidence on record and sanitized the fraudulent activities on behalf of the respondents. 6. To buttress the submissions as pertains to proof of fraud, learned counsel for the Appellants’ has cited and relied on inter alia; **Kuria Kiarie and 2 others versus Sammy Magera [2018] eKLR; Vijay Morjaria versus Nansingh Madusingh Darbar and another [2000] eKLR; and Arthi Highway Developers Limited versus West End Butchery Limited and 6 others [2015] eKLR,** respectively. 7. The third issue that has been canvassed touches on and concerns the question of limitation. It has been submitted that the counter claim by/ on behalf of the Respondents was statute barred and therefore same could not have birthed the orders that were granted by the learned trial magistrate. In particular, it has been submitted that the sale agreement underpinning the counter claim is said to have been entered into in the year 2001, and yet the counter claim was filed in the year 2023. 8. In the premises, it has been submitted that the counter claim before the court was statute barred and hence same ought to have been dismissed. The learned trial magistrate is accused of having disregarded the provisions of **Section 4[1] of the Limitation of Actions Act, Chapter 22 Laws of Kenya.** 9. Flowing from the foregoing, learned counsel for the appellant has invited the court to find and hold that the subject appeal is meritorious. To this end, the court has been implored to allow the appeal; set aside the impugned judgment; and to enter Judgment in favour of the Appellants’ . 10. The Respondents filed written submissions dated the 06.06.2026. The Respondents have raised and canvassed various issues. The issues are: Whether the suit before the lower court was incompetent for non-joinder of necessary parties; whether the appellant’s claim was statute barred under limitations of actions act; whether the sale agreement entered into between the 1st appellant and the 1st respondent were valid and enforceable; whether the conduct of the co-proprietors amounted to acquiescence and or ratification of transaction; whether fraud was specifically pleaded and strictly proved to the required standards; whether the Appellants were entitled to cancellation of the title, eviction and injunction; and whether the 1st respondent’s counter claim was statute barred. 11. Regarding the first issue, learned counsel for the respondent[s] has submitted that the suit properties were registered in the names of Peter Muriuki M’Ringera [1st appellant]; Patrick Mwenda; and Kimathi Muriuki, respectively. However, it has been submitted that the Appellants ’ suit in the lower court did not include the other co-proprietors. To this end, it has been submitted that the Appellants ’ suit in the lower court was negated *vide* non-joinder; and the suit was therefore incompetent. 12. Secondly, it has been submitted that the actions complained of by/on behalf of the appellant[s] took place in the years 2001 and 2002 respectively. In this regard, learned counsel for the respondents has submitted that by the time the Appellants suit was filed, same was statute barred. The provisions of **Section 7 of Limitation of Actions Act, Chapter 22 Laws of Kenya** has been relied upon. 13. Thirdly, learned counsel for the respondents has submitted that the sale agreements that were entered into and executed between the 1st appellant and 1st respondent, were duly reduced into writing and were thereafter executed by both parties. Moreover, it has been submitted that the sale transactions were equally supported and ratified by Patrick Mwenda, who testified as DW2. 14. In the premises, it has been submitted that the learned trial magistrate was right in finding and holding that the sale agreements, were lawful, valid and enforceable. 15. The next issue that has been submitted upon touches on and concerns the ratification of the sale agreements by the co-proprietors of the 1st appellant. It has been contended that Patrick Mwenda, who is one of the Co-proprietors, attended court and testified on behalf of the respondents. In addition, it has been posited that the said Patrick Mwenda confirmed the validity of the sale transactions. To this end, Learned Counsel invited the Court to uphold the finding[s] of the Lower Court. 16. Next is the issue of whether fraud was specifically pleaded and thereafter strictly proved. It has been submitted that the Appellants merely pleaded fraud but failed to tender and adduce credible evidence to prove fraud. Furthermore, it was posited that bare and generalised assertions do not amount to proof. 17. The other issue that has been canvased by the Respondents turns on whether the Appellants were entitled to the reliefs sought. In this regard, it has been submitted, that the Appellants did not place before the court credible evidence to warrant the grant of the reliefs sought. In any event, it was submitted that an order of injunction is equitable in nature and hence same could not issue in favour of the Appellants, who had slept on their rights for more than 20 years. 18. The last issue that has been submitted upon relates to whether the counter claim by the 1st respondent was statute barred. It has been contended that the 1st respondent had promised to effect transfer to and in favor of the 1st respondent, but thereafter reneged on the promise. It has been posited that the counter claim is not stature barred. Further and in any event, it has been submitted that it is the 1st appellant, who delayed in effecting the transfer and therefore same cannot now implead limitation. 19. Premised on the foregoing, learned counsel for the respondents has contended that the appeal before the court is devoid of merits and thus same ought to be dismissed. The court has been implored to dismiss the appeal; reaffirm the Judgment of the lower court; and to award costs to the respondents. 20. Having reviewed the record of appeal; the grounds contained at the foot of the memorandum of appeal; the evidence *[both oral and documentary]* which was tendered before the lower court; and taking into account the written submissions by/on behalf of the parties, three [3] key issues emerge for consideration and determination. The issues are: Whether the Appellants’established and proved their claim before the lower court or otherwise; whether the learned trial magistrate correctly apprehended and appreciated the evidence tendered and thereafter applied same in accordance with the established principles of law; and whether the 1st respondent established the claim at the foot of the counter claim or otherwise. 1. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding[s] and conclusion[s] arrived at by the trial magistrate accord with the evidence on record and the legal principles. 2. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding[s] and conclusion[s] of the trial court, where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 3. Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. The jurisdiction cannot be invoked for the mere asking by the Appellant. 4. The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of **Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR).** The Court of Appeal expounded on the scope of the jurisdiction. 5. The court stated thus: *“46. We also wish to be guided by the reasoning of this court in the case of* ***Mwana Sokoni versus Kenya Business Limited (1985) KLR*** *931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.”* 1. Recently, the Court of Appeal re-visited the jurisdictional remit in the case of **Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR).** The Court highlighted the principle[s] in the following manner: *“We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the*[*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3)*, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…* *Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of* **County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) *and*****County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) –** [paragraphs 56 and 57 thereof]” 1. Bearing in mind the principles enunciated in the decisions [supra], I am now well poised to revert to the subject matter and to address the thematic issues highlighted elsewhere hereinbefore. I beg to start with the first issue, namely; whether the Appellants ’ duly established/proved their claims before the lower court or otherwise. 2. The Appellants’ herein had approached the lower court and raised a plethora of issues. The issues included that: The transfer of LR No. Abothuguchi/Mariene/1323 to and in favour of the 1st respondent was fraudulent; the transfer was undertaken even though some of the proprietors of the land were minors; the transfer was undertaken without valid Land Control Board consent; the transfer was premised on illegal and unenforceable sale agreement; the transfer was undertaken without due regard to the law. 3. During the trial [hearing] in the lower court, the 1st appellant testified and averred that the suit properties, namely; LR No. Abothuguchi/Mariene/1323 and 1324, were sub-divided from the original parcel of land. In addition, the 1st appellant posited that upon sub-division, the suit properties were transferred and registered in his name, together with Patrick Mwenda and Kimathi Muriuiki. 4. Furthermore, the 1st appellant testified that Kimathi Muriuki was a minor as at the time when the suit properties were registered in their names. For good measure, it was averred that Kimathi Muriuki was born 1993 and hence same was barely nine years old when the impugned sale agreements were being entered into. 5. Additionally, the 1st appellant testified that even though LR No. Abothuguchi/Mariene/1323 was transferred to and registered in the name of 1st respondent, same [1st appellant] did not attend any Land Control Board meeting with the 1st respondent. 6. The 1st respondent on his part testified and averred that same entered into a lawful sale agreement with the 1st appellant. In addition, the 1st respondent averred that the sale agreements were duly reduced into writing; same were duly signed by the 1st appellant; the 1st appellant was duly paid the purchase price; and the said parcel of land was lawfully transferred unto him. 7. I have appraised the evidence on record. I must state that the suit properties are shown to have been registered in the names of Patrick Muriuki M’Ringera [1st appellant]; Patrick Mwenda; and Kimathi Muriuki. It is equally apparent that Kimathi Muriuki, was indeed a minor, same having been born in 1993. 8. The question that does arise is how the suit properties, which were registered in the names of three people, including a minor, namely; Kimathi Muriuki, could be transacted upon without a lawful court order sanctioning the transaction. It is not lost on me that Kimathi Muriuki, who was a minor could not Consent to the sale and or transfer of the suit property. In any event, no evidence has been tendered to vindicate the fact he [Kimathi Muriuki] consented. 9. Other than the fact that the transaction was being undertaken without the sanction of a court of law, to protect the rights of the minor, there is also the aspect that the impugned sale agreement[s], were neither signed nor executed by all the proprietors. It is imperative to underscore that insofar as the suit properties were registered jointly in the names of the three joint owners, the 1st appellant lacked the capacity to transact over and in respect of the suit properties, alone and without the involvement of all the registered Owners, yet that is what appear[s] to have happened. [See the holding in the case of **Josephine v Attorney General [2015] KECA 407 (KLR)].** 10. The next aspect touches on the question of whether or not the Land Control Board Consent was procured or obtained, prior to and before the transfer and registration of LR No. Abothuguchi/Mariene/1323 into the name of the 1st respondent. It is instructive to recall that the 1st appellant testified and posited that same did not attend the Land Control Board with the 1st respondent. 11. On his part the 1st respondent remained mute/ silent on the issue as to whether the Land Control Board Consent was procured and obtained. In addition, the 1st respondent also did not challenge the assertion by the 1st appellant that no such Consent was ever issued. 12. Additionally, it is worth recalling that the 1st respondent who was the beneficiary of the transfer of LR No. Abothuguchi/Mariene/1323, did not produce before the court a copy [sic] the Land Control Board consent. The failure to controvert the evidence by the 1st appellant that no control board Consent was issued, and coupled with the failure to tender a copy of the consent, if any, fortifies the position that none was ever issued. 13. Moreover, the 1st appellant also testified that he did not execute the transfer instrument in favor to the 1st respondent. It was the testimony of the 1st appellant that he only discovered the offensive transfer and registration of the suit property to the 1st respondent in the year 2020. Again, the production of a copy of the transfer instruments [if any] would have helped the 1st respondent’s case. 14. However, there is no gainsaying that the copy of the transfer instrument, if any, was not produced. Whether or not such transfer was duly executed, is debatable. Nevertheless, I wish to point out that no transfer over and in respect of the suit property could be registered by the land registrar, without same having been duly executed by all the registered owners, as shown in the register. Suffice it to underscore that Patrick Mwenda and Kimathi Muriuki, both of whom were indicated to be minors could not have executed a transfer instruments in the eyes of the law. 15. It was incumbent upon the 1st respondent to place before the court credible and plausible evidence in rebuttal of the evidence that had been placed before the court by the 1st appellant. There is no gainsaying that the 1st appellant had posited that he did not execute a transfer instrument, or better still transfer the suit property. The best that the 1st respondent could have done in an endeavor to prove the root of his title, if at all, was to tender the peremptory instruments including, a copy of the Land Control Board Consent and most importantly, the transfer instruments underpinning the impugned transfer. 16. In the case of **Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR),** the Court of Appeal illuminated the position that it is not enough for a person to display a certificate of title and to imagine that such a certificate/deed suffices, irrespective of the manner in which same was procured. The court stated thus: **“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”** 1. To my mind, the sum total of the evidence that was tendered and produced before the trial court, clearly painted a picture of a transaction that was riddled with illegalities and deceit. There is no gainsaying that the impugned transaction was fraudulent and that evidence to that effect, abound. 2. I am afraid that the finding and holding by the learned trial magistrate that the impugned transaction was proper and valid, were not based on the evidence on record. In addition, the conclusions appear, with respect, to be slanted and skewed, considering the fact that no transaction impacting on the rights of a minor can be entertained without the sanction of the court. 3. To buttress the this legal position, I wish to take cognizance of the holding in the case of **Wambui v Mwangi & 3 others [2021] KECA 144 (KLR**) where the Court of Appeal addressed its mind to the legal consequences of transactions which are vitiated by illegalities. 4. The court stated thus: *“64.* ***The jurisprudence relied upon by the appellant and which we find prudent not to replicate are as already highlighted above. We have given due consideration to them in light of the record as assessed herein by us. Our take on the same is that the jurisprudential thread running through all of them is that no court of law should sanction and pass as valid any title to property founded on: fraud; deceitfulness; a contrived decree; illegality; nullity; irregularity, unprocedurality or otherwise a product of a corrupt scheme****.”* 1. Taking into account the evidence on record, and applying the legal principles underpinning the plea of fraud; and coupled with the provisions of **Section 26 of the Land Registration Act**, I am persuaded that fraud was duly proved and established to the requisite standard, namely; to the Intermediate standard in accordance with the Law. 2. What constitute[s] fraud was clearly illuminated in the case of **Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR - Civil Appeal 246 of 2013.** The Court of Appeal cited black’s law dictionary and stated thus: *52. “****Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another”.*** 1. *In a nutshell*, it is my conclusion that the Appellants’herein and more particularly, the 1st appellant demonstrated and proved that the transaction touching on and concerning the transfer of LR No. Abothuguchi/Mariene/1323, was fraudulent and illegal. I hasten to add that the impugned transfer was also vitiated by and riddled with un-procedurality. 2. Next is the issue of whether the learned trial magistrate correctly apprehended and appreciated the totality of the evidence, which was tendered and if so, whether same applied the evidence as against the established legal principles. To begin with, it is common ground that the two [2] sets of the sale agreements which were tendered and relied upon by the 1st respondent, show that same were executed by [sic] the 1st appellant as the vendor; and the 1st respondent, as the purchaser. 3. It is not lost on me that Patrick Mwenda and Kimathi Muriuki, both of whom are shown in the green card as “minors” did not execute the sale agreements. However, the learned trial magistrate has indicated in his judgment that [sic] the ‘joint proprietors’ of the suit properties entered into proper, valid land sale agreements. 4. This is what the learned trial magistrate stated: “ ***It has been shown that the joint proprietors of the suit properties entered into proper, valid land sale agreement for the same. The 1st plaintiff received the full consideration of the same [sic] in full, his co-proprietor Patrick confirmed the same.”*** 1. I am afraid that the conclusion that has been adverted to by the learned trial magistrate, is not borne out of the evidence on record. On the contrary, the conclusion constitutes a mis-reading and misapprehension of the evidence on record. Quite clearly, the learned trial magistrate does not appear to have comprehended the basic facts that the joint proprietors did not execute the impugned sale agreements. 2. Additionally, it is worthy to recall that Kimathi Muriuki was admittedly a minor. The evidence of the 1st respondent [DW2] confirms as much. If that be the position, then the question that does arise is how could Kimathi Muriuki [minor] execute a sale agreement. 3. Other than the foregoing, the learned trial magistrate also baptized the sale agreements as valid, proper and enforceable. Nevertheless, it is trite that where land is registered in the name of a minor or where a minor, is shown to be one of the registered owners, like in this case, then no transaction can be undertaken in respect of the said property. 4. At this juncture, it is imperative to reference the provisions of **Section 47 of the Land Registration Act, 2012.** The section stipulates thus: ***47. Minors*** ***(1) The name of a person under the age of eighteen years may be entered in the register to enable the minor’s interest to be held in trust and shall be registered under the name of the guardian either on first registration or as a transferee or on transmission.*** ***(2) Nothing in this section enables a person under eighteen years of age to deal with land or any interest in land by virtue of such registration, and, if the Registrar knows a child has been registered, the Registrar shall enter a restriction accordingly.*** ***(3) If a disposition by a minor whose minority has not been disclosed to the Registrar has been registered, that disposition may not be set aside only on the grounds of minority.*** 1. Similarly, the learned trial magistrate found and held that the transfer of the suit property in favor of the 1st respondent was lawful. However, there is no gainsaying that the transfer instrument [if any] was not tendered. How can it be said that the transfer was lawful in the absence of the critical instruments? I am afraid that the learned trial magistrate misconstrued the applicable principles. 2. Without belaboring the point, I find and hold that the judgment of the learned trial magistrate is wrought with serious and grave errors, both in the analysis of the evidence that was tendered and in the appreciation of the fundamental legal principles pertaining to contracts over land. To this end, the complaints by the Appellants ’are, certainly, well founded. 3. I now wish to turn to the last issue. The issue is: Whether the 1st respondent proved or established the counter claim. It is important to recall that upon being sued by the Appellants’, the 1st respondent filed a statement of defence and included a counter claim. The counter claim sought to procure an order of transfer of LR No. Abothuguchi/Mariene/1324. The 1st respondent posited that same had entered into and executed a lawful sale agreement with the 1st appellant. In addition, it was contended that the sale agreement in respect of the named property was entered into in the year 2002. **[See paragraph 7 of the statement of defence].** 4. The 1st respondent’s claim to LR No. Abothuguchi/Mariene/1324, is premised on the sale agreement dated the 17.10.2002. However, I beg to repeat that the said sale agreement was not executed by all the registered proprietors. Moreover, it is not lost on me that one of the joint proprietors, namely: Kimathi Muriuki, was a “minor”. To this end, it is common ground that the said sale agreement is *ex facie,* invalid, illegal, and void. 5. Additionally, it is worthy to outline that any agreement touching on or concerning sale of land must be executed in accordance with the provisions of **Section 3[3] of the Law of Contract Act, Chapter 23 Laws of Kenya.** The bottom line is that it was incumbent upon the 1st respondent to ensure that all the proprietors signed, which is not the case. 1. The other critical aspect touches on the Land Control Board consent. The registration documents that were tendered before the court, including copies of the green cards, show that the land is not situated within the municipalities. On the contrary, the land in question was /is agricultural land. To this end, it was imperative that the Land Control Board Consent be obtained in line with the provisions of **Section 6 of the Land Control Act, Chapter 302 Laws of Kenya.** 2. In my humble view, the claim by and on behalf of the 1st respondent touching on and concerning the transfer of LR No. Abothuguchi/Mariene/1324, was not lawful or tenable. 3. Moreover, I wish to point out that even though the learned trial magistrate found and held that the 1st respondent had demonstrated that the sale agreement [sic] dated 11.04.2001 was proper, the said conclusion was arrived at on the basis of misapprehension of the law. 4. Nevertheless, and before concluding on this appeal, there are three sub-issues, which merit mention and a short discussion. The sub-issues include: Whether the Appellants ’ suit in the lower court was incompetent for non-joinder; whether the Appellants ’ suit was barred by limitation; and whether the counter claim by the 1st respondent was barred by limitation, or otherwise. 5. Regarding the first sub-issue, namely; the legal implication of non-joinder. I wish to underscore that non-joinder or mis-joinder of parties, by and of themselves, do not vitiate legal proceedings. Suffice it to state that a court of law is still enjoined to interrogate the evidence and to determine the issues in controversy. 6. At any rate, the complaint by learned counsel for the Respondents touching on [sic] non-joinder is answered by the provisions of **Order 1 Rule 9 of the Civil Procedure Rules, 2010**. The provision stipulates thus: **9. Misjoinder and non-joinder [Order 1, rule 9]** **No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.** 1. The next sub-issue relates to the contention that the Appellants ’ suit in the lower court was barred by the limitation of actions Act, Chapter 22, Laws of Kenya. Learned counsel for the Respondents contended that the Appellants’ suit was lodged after more than twenty [20] years, from the date of the accrual of the cause of action. To this end, counsel highlighted the provisions of **Section 7 of the Limitations of Actions Act, Chapter 22 Laws of Kenya.** 2. However, I wish to point out that it was incumbent upon learned counsel for the Respondents to specifically plead the issue of limitation [if at all] at the foot of the Respondents pleading. In this case, it behooved the Respondents to clearly implead and particularize, the plea of limitation in the statement of defence. 3. I have reviewed the statement of defence and the counter claim dated the 29.06.2023, but I have not found anywhere where the plea of limitation has been highlighted. Moreover, there is no gainsaying that the issue of limitation was neither canvassed nor highlighted before the lower court. In this regard, I hereby state that the submissions touching on limitation are misguided. 4. In the case of **Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another [2015] KECA 728 (KLR),** the Court of Appeal highlighted the legal position concerning the plea of limitation. In particular the court underscored that the plea of limitation must be expressly pleaded before it can be canvassed. 5. The court stated thus: ***“There* *having been no challenge mounted against the counterclaim on account of time limitation at the trial and in the absence of a pleading of time limitation by way of defence to the counter claim, or affidavit, by dint of Order 2 Rule 4(1) of the Civil Procedure Rules which mandatorily requires a plea of time limitation to be by way of pleadings then the Appellants were barred from raising that aspect in their final submissions.”*** 1. I now wish to turn to the final sub-issue which was raised by the Appellants’. The Appellants contended that the 1st respondent’s counter claim was equally barred by limitation. However, it is worth pointing out that the Appellants’ also did not highlight the plea of limitation at the foot of the reply to defence and defence to the counter claim. Surely, the Appellants’ cannot become wiser after the act. 2. Be that as it may, the law cuts both ways. The provisions of **Order 2 Rule 4 of the Civil Procedure Rules, 2010;** and the exposition of the law in the case of **Wilson Kazangu Katana** [*supra*] suffices. 3. Flowing from the foregoing analysis, it must have become crystal clear that the judgment of the learned trial magistrate reeks of grave errors. The impugned judgment is also anchored on misapprehension; misconstruction; and misappreciation of the evidence on record and various legal principles. 4. In the premises, and bearing in mind the jurisprudence at the foot of **Mwanasokoni versus Kenya Bus Services Limited [1985] eKLR**, I am persuaded to and do hereby depart from the findings and holdings of the learned trial magistrate. **Final order:** 1. Flowing from the discussion contained in the body of the Judgment, and pulling the thread[s] together, it is apparent that the appeal beforehand is meritorious. To this end, the appeal is well grounded and thus deserves to be allowed. 2. Consequently, the final orders of the court are: 3. ***The Appeal be and is hereby allowed.*** 4. ***The Judgment of the learned trial magistrate dated the 18.03.2026; and the consequential decree arising therefrom be and is hereby set aside.*** 5. ***In lieu thereof, Judgment be and is hereby entered in favour of the Appellants in terms of the plaint dated the 22.03.2023. In particular, Judgment be and is hereby entered as hereunder:*** * 1. ***A declaration be and is hereby made to the effect that the transfer and registration of LR No. Abothuguchi/Mariene/1323 in the name of 1st and 2nd Respondentswas fraudulent, illegal and void.*** 2. ***The transfer of LR No. Abothuguchi/Mariene/1323 in favour of the 1st and 2nd respondent be and is hereby cancelled/revoked.*** 3. ***The register in respect of the suit property, namely; LR No. Abothuguchi/Mariene/1323, shall be rectified and thereafter the same shall be restored to the names of Peter Muriuki M’Ringera [ 1st appellant];*** ***Patrick Mwenda; and Kimathi Muriuki, respectively.*** 4. ***A declaration be and is hereby issued that LR No. Abothuguchi/Mariene/1324 belongs to the 1st appellant; Patrick Mwenda; and Kimathi Muriuki, respectively.*** 5. ***A declaration be and is hereby issued that any dealings involving and touching on LR No. Abothuguchi/Mariene/1324, are illegal, unlawful and void.*** 6. ***The 1st and 3rd Respondents be and are hereby directed to vacate and hand over vacant possession in respect of LR No. Abothuguchi/Mariene/1324 within 90 days from the date hereof.*** 7. ***In default by the 1st and 3rd Respondents to vacate and hand over vacant possession in respect of LR No. Abothuguchi/Mariene/1324 within 90 days, the 1st appellant shall be at liberty to evict the named Respondentsfrom LR No. Abothuguchi/Mariene/1324. In this regard, an eviction order shall issue.*** 8. ***In the event of eviction being levied by the 1st appellant, the expenses and costs [if any] shall be certified by the Deputy Registrar and thereafter same shall be recovered from the respondents.*** 9. ***There be and is hereby issued an order of permanent injunction restraining the respondent either by themselves, agents, servants, employees or anyone acting under their instructions from entering onto, dealing with or otherwise interfering with the 1st Appellants rights to and in respect of LR Nos. Abothuguchi/Mariene/1323 and 1324, respectively.*** 6. ***The 1st respondent’s counter claim dated the 23.06.2023 be and is hereby dismissed.*** 7. ***Costs of the appeal be and are hereby awarded to Appellants .*** 8. ***Costs of the suit in the lower court be and are hereby awarded to the Appellants’ .*** 9. ***Costs of the counterclaim in the lower court are equally awarded to the Appellants’.*** 10. ***The costs of in terms of [e], [f] and [g] shall be agreed upon and in default be taxed in the conventional manner.*** 11. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU ON 2ND JULY, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo /Mukami Ms. Bett holding brief for Mr. Kiogora Arithi for the Appellants Ms. Chepkoech for the Respondents.