https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1565

Odera & another v Wambia & 4 others (Civil Appeal E026 of 2021) [2026] KECA 1565 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1565 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal E026 of 2021 PM Gachoka, WK Korir & L Ndolo, JJA July 31, 2026 Between Rachel Odera 1st Appellant Felix Odera 2nd Appellant and Rodgers Katami Wambia 1st Respondent Alex Kimya 2nd Respondent Jonathan Omemba Ombima (As Officials of Lugari Yearly Meeting of Friends (Quakers) 3rd Respondent The Attorney General 4th Respondent Board of Management - Marula Primary School 5th Respondent (An appeal against the judgment and decree of the Environment and Land Court at Eldoret (Kibunja, J.) delivered on 13th May, 2020 in ELC No. 353 of 2017 Formerly Nairobi HCCC No. 196 of 2007) Judgment 1.Land disputes in Kenya remind one of the mythical Greek fights between the gods that never ended. Myths have it that they were vicious and catastrophic; they resulted in upheavals that shattered the foundational fabric of the universe. But that is just a myth. The reality in land disputes follows a similar path. The fights go on for years; the foundation of many families is left in tatters, relationships are battered for life, and, at times, lives are lost. The fights are handed over from one generation to the next, probably with those who left cheering from the afterlife, or just wondering what a life of vanity they engaged in. This is one such dispute arising from a land adjudication exercise undertaken in 1964, when the Republic of Kenya was only one year old. Sixty-odd years later, the parties are still in court. 2.To put the appeal in context, we shall give the historical background, albeit in a summarized manner. The 1st, 2nd, and 3rd respondents instituted a claim in High Court Civil Case No. 196 of 2007 at Nairobi, vide an amended plaint dated 14th March 2011, seeking a declaration that the parcel of land known as LR Kakamega/Lugari/183 belongs to Lugari Yearly Meeting of Friends’ Church (Quakers), the cancellation of the title and rectification of the register in respect of the suit land, and a permanent injunction restraining the appellants from interfering with their use of the suit land. The gist of the claim was that land adjudication was undertaken in 1964 and that Lugari Yearly Meeting of Friends (Quakers) was allocated land parcels Kakamega/Lugari Settlement Scheme/183, 301, and 304. They averred that they immediately took possession and commenced payment for the land parcels to the Settlement Fund Trustees. They further stated that they remained in peaceful occupation until 2002, when they discovered that one, Salome Muhonja Odera, had been issued with a title to land parcel Kakamega/Lugari Settlement Scheme/183, which had earlier been allocated to them. 3.The suit was opposed by the appellants vide an amended statement of defence and counterclaim dated 31st May 2011, and by the 4th and 5th respondents vide a further amended defence and cross- claim dated 24th July 2018. Upon the establishment of the Environment and Land Court under the Constitution of Kenya, 2010, the suit was transferred to the Environment and Land Court at Eldoret, where it was registered as ELC No. 353 of 2017. 4.A summary of the facts giving rise to the dispute, according to the respondents, is that, in 1964, the Government of Kenya, through the Ministry of Lands, Adjudication and Settlement, allocated to the East African Yearly Meeting of Friends Church (Quakers) Plot Nos. Kakamega/Lugari/695, 301, and 304 through its training centre, known as Lugari Farmers Training Centre. The 1st - 3rd respondents then took possession of Plot No. Kakamega/ Lugari/695, now known as Kakamega/Lugari Settlement/183, after making the necessary payments. 5.The 1st - 3rd respondents contended that, in 2003, they discovered that one Salome Muhonja Odera had been issued with a title to Kakamega/Lugari/183 and, upon making enquiries with the Ministry of Lands, Adjudication and Settlement, the Ministry acknowledged the mistake and wrote to her, requesting that she surrender the title. She subsequently passed away before the issue was resolved. They further stated that, in 2007, the appellants prevented persons who had leased a portion of the suit land from the 1st - 3rd respondents from ploughing it and wrote to the respondents, threatening to evict them. 6.The 1st - 3rd respondents’ position was that the Ministry of Lands, Adjudication and Settlement had renumbered Plot No. Kakamega/Lugari/695 as Plot No. 183, while the original Plots Nos. Kakamega/Lugari/182 and 183 had been renumbered as Plot No. 182, but the Ministry failed to reflect those changes in the records of the Department of Land Adjudication. They further contended that they took possession of the land in 1964 and established Marula Primary School in 1982. Having set out the particulars of mistake on the part of the Registrar of Lands, Kakamega, and fraud on the part of the appellants, the respondents prayed that the register be rectified, as stated earlier in the judgment. 7.The appellants disputed this version of the facts. On their part, they contended that their late father, Nehemiah Odera, was allocated the suit land by the Settlement Fund Trustees upon payment of all the requisite dues, whereupon they took possession of Kakamega/Lugari/183. Upon the demise of their father, their mother, Salome Muhonja Odera, obtained letters of administration to his estate, and title to the land was issued in her favour on 23rd September 1990. They further contended that, in 1982, she was approached by local leaders who requested her to allow them to put up a public school, to which she consented, and thus Marura Primary School was established. They denied that the 1st - 3rd respondents had ever occupied the land or that the school was owned by them. They prayed that the suit be struck out with costs. 8.In their amended counterclaim, they averred that they were the lawful owners of Kakamega/Lugari/183 by virtue of being the beneficiaries and administrators of the estate of Salome Muhonja Odera. They further contended that the letter addressed to the respondents by the Land Adjudication and Settlement Department, Ministry of Lands, dated 30th November 2006, could not pass as a title. They prayed for a declaration that they were the lawful owners of Kakamega/Lugari/183, a permanent injunction restraining the plaintiffs from interfering with the said parcel, damages for trespass, mesne profits, and costs of the suit. 9.The 1st - 3rd respondents filed a reply to the amended defence and counterclaim, in which they reiterated the contents of their amended plaint and prayed that the court dismiss the amended counterclaim. The 4th and 5th respondents, in their further amended defence and cross-claim dated 24th July 2018, laid out what, in their view, were the correct facts concerning the suit property. They pleaded that the Settlement Fund Trustees allocated the appellants’ late father Plot Nos. Kakamega/ Lugari/182 and 183, measuring a total of 19.5 hectares (48.5 acres), which were amalgamated into Kakamega/Lugari/182 in 1965. They further pleaded that following the establishment of the Lugari Settlement Scheme in the 1960s, the 1st - 3rd respondents, then operating as Lugari Farmers’ Training Centre, were allocated Plot No. Kakamega/Lugari/695 and paid for it on 30th March 1968. They further averred that, at the time of the allocation, Plot Nos. Kakamega/Lugari/182 and 183 were adjacent to each other, whereas Kakamega/Lugari/695 was situated three kilometres away. They also contended that during the amalgamation, Kakamega/Lugari/695, comprising 54 hectares (133.4 acres), was renumbered as Plot No. 183. 10.They conceded that in 1968, the 1st – 3rd respondents paid for Plot No. 183, which was the old Kakamega/Lugari/695, and the Department of Lands failed to prepare a discharge of charge of the same. Erroneously, plot no. Kakamega/Lugari/183 was then discharged to Salome Muhonja Odera, who obtained a title deed on 3rd September 1990. When the anomalies were brought to the attention of the Department of Lands, a restriction was placed on the parcel. 11.In the cross-claim against the appellants, the 4th and 5th respondents averred that the estate of Salome Muhonja Odera held title to Plot No. Kakamega/Lugari/183 by mistake and error. They consequently sought a declaration that the said title be cancelled; a declaration that the register be rectified by substituting the 1st –3rd respondents as the proprietors of Plot No. Kakamega/ Lugari/183; and an order that Plot No. Kakamega/Lugari/182 be transferred to the appellants. In response, the appellants filed a reply to the further amended defence, and a defence to the counterclaim wherein they reiterated the contents of their amended defence and amended counterclaim. The parties adduced evidence, which we shall revisit, where necessary, when addressing the grounds of appeal. By way of background, we note that, after a full trial, Kibunja, J., in a judgment dated 13th May 2020, ruled in favour of the respondents. The relevant part of the judgment reads as follows:“a.That it was conceded by DW3 that the renumbering of the plot No. 695 to 183 appear not to have been captured by the Land Registrar’s Office and this resulted to the transfer of Kakamega/Lugari/183 to Salome Muhonja Odera in 1990. That this is an indictment on the said office and the source of many disputes on land ownership.b.….c.That had the 3rd Defendant kept and maintained the records relating to Plot Numbers 182 and 183 properly, the errors and mistakes that they now plead to have led to Salome Muhonja Odera being registered with land other than the one allocated to her late husband, Nehemiah Odera, would not have occurred. That the suffering and expenses incurred already, and likely to be incurred by the parties whichever way, the Court will determine the issues herein would not have arisen.” 12.Additionally, he considered the evidence, to wit, the documents produced by DW3, the Land Registrar, and held:“a.That DW3, testifying on behalf of the 3rd Defendant, produced the Final Area Map list that covers the suit land and neighbouring plots. The map shows the old and new numbers of the plots and their respective acreages. That Plot Number 183 is shown to have been Plot Number 695, which is not disputed had been allocated to the Plaintiff. That the parcel is mostly in survey map sheet number 10 and partly in sheet number 5, while Plot Number 182 is wholly on sheet number 5. That as the 1st and 2nd Defendants did not avail documentary evidence capable of challenging those availed by DW3 who actually represented the Government, which has the responsibility of maintaining such documents, the Court finds and holds that land parcel Kakamega/Lugari/183 is the same as Plot Number 695 that was allocated to the Plaintiff in 1964, and wholly paid for. That further, the Court finds and holds that the land that was allocated to the late Nehemiah Odera is Plot Number 182 that is a consolidation or amalgamation of the original Plot Numbers 182 and 183.” 13.The learned Judge, upon considering the evidence relating to the appellants’ claim to the suit land, found that they began claiming the land in 2006, after which the 2nd appellant erected his homestead and started leasing the land to third parties. The Judge held that:“That before 2006, the said land was mostly under the Plaintiff and the Interested Party as can be confirmed by the fact that the Plaintiff had leased it to Lake Basin Authority reportedly from 1986 to 2006. That the lease dated 11th July 1997, and produced as exhibit 6 goes to confirm that. That further until 2006, the 1st and 2nd Defendants’ activities on land use were confined on Plot Number 182 on which their late mother, Salome Muhonja Odera and their late siblings named Nabate and Joyce, were buried after their death. That when the 1st and 2nd Defendants, as beneficial owners to the estate of the late Salome Muhonja Odera, laid claim to the suit land in 2006, the Plaintiff filed this case through their Plaint dated 12th February, 2007 that was subsequently amended on the 14th March, 2011. That the fact that Salome Muhonja Odera and her late children named above were buried upon death on Plot Number 182, and not the suit land which had been registered in her name in 1990 can only lead the Court to conclude that all her children and elders knew her land was Plot Number 182.” 14.Additionally, the learned Judge found that the transfer of Kakamega/Lugari/183 on 28th August 1990, and the subsequent issuance of the title, must have been fraudulent or erroneous. Thus, the Judge held that:“That the family of Nehemiah Odera and Salome Muhonja Odera now represented in this suit by the 1st and 2nd Defendants have since the allocation of the land in 1964 have been in possession of Plot No. 182 while the Plaintiff has been in possession of Kakamega/Lugari/183 [formerly Plot No. 695]. That the transfer of Kakamega/Lugari/183 by Settlement Fund Trustees on the 28th August 1990, and the subsequent issuance of the title on the 3rd September, 1990 must have been in error, mistake and or fraud. That no evidence has been tendered to prove fraud attributed to any of the parties in this matter. That however, the fact that the transfer was registered without first ensuring that a discharge of charge had been obtained, and registered leads the Court to infer fraud.…That the Court therefore, finds and holds that the transfer of Kakamega/Lugari/183 from Settlement Fund Trustees to Salome Muhonja Odera on 28th August, 1990, and the subsequent issuance of title deed to her favour without first obtaining, and registering a discharge of Charge issued by the Settlement Fund Trustees was obtained and process fraudulently, and or by mistake or error.” 15.He also considered the challenge to the registration of the suit land in the name of Salome Muhonja Odera as follows:“That PW1 had stated in his statement that was adopted as part of his evidence that before Salome Muhonja Odera passed on “…she had acknowledged that there was a mistake on the paper work at the Ministry of Lands and both parties awaited for rectification by the Ministry of Lands and Settlement, however, this could not have been pushed through as she passed on shortly thereafter.” That part of the statement and evidence of PW1 was not controverted, and shows or confirms at least that the late Salome Muhonja Odera knew that her registration with the suit land was through a mistake.” 16.Based on these findings, the learned Judge held that the appellants’ counterclaim lacked merit and consequently failed. 17.The learned Judge went on to make a finding on the cross-claim against the appellants as follows:“That as held above, the 1st and 2nd Defendants’ beneficial interest as administrators of the estate of the late Salome Muhonja Odera lies on Plot No. 182, and not 183. That the 1st and 2nd Defendants had no registration interests over Kakamega/Lugari/183, which belongs to the Plaintiff. That the Plaintiff was not enjoined in the cross-claim, and there is no counterclaim lodged against the Plaintiff by the Interested Party. That the prayers sought by the 3rd Defendant, and Interested Party in the cross-claim to include the Interested Party as a proprietor in common cannot therefore, issue without affording the Plaintiff an opportunity to be heard on that issue.” 18.He consequently issued the following orders:a.That the 1st and 2nd Defendants have failed to prove their counterclaim to the standard required, and the same is dismissed.b.That the Plaintiff, 3rd Defendant and Interested Party have proved their claim and cross-claim respectively against the 1st and 2nd Defendants on a balance of probabilities. The Court therefore enters judgment for the Plaintiff, 3rd Defendant and Interested Party against the 1st and 2nd Defendants in the following terms:i.That a declaration is hereby issued that the registration, and issuance of title of Kakamega/Lugari/183 to Salome Muhonja Odera on the 28th August, 1990, and 3rd September, 1990 respectively was fraudulent and erroneous.ii.That a declaration is hereby issued that land parcel Kakamega/Lugari/183 that was formerly Plot No. 695 at initial allocation, and later renumbered Plot 183 belongs to the Plaintiff, Lugari Yearly Meeting of Friends (Quakers).iii.That the Land Registrar do upon presentation of this order rectify the register of Kakamega/Lugari/183 by deleting the name of Salome Muhonja Odera as proprietor at entry Number 2, and thereafter process the registration of the discharge of Charge by Settlement Fund Trustees, and transfer in favour of the Plaintiff, Lugari Yearly Meeting of Friends (Quakers) upon payment of the applicable fees, if any.iv.That the 1st and 2nd Defendants do give the Plaintiff, vacant possession of Kakamega/Lugari/183 in ninety (90) days and in default, eviction order to issue to be executed in accordance with the law.v.That upon the 1st and 2nd Defendants giving vacant possession or evicted as in (iv) above, they remain permanently, restrained from interfering with the Plaintiff’s use, and possession of the suit land.vi.That the Land Registrar do transfer Plot Number 182 Lugari Settlement Scheme to the 1st and 2nd Defendants as personal representatives of the estate of the late Salome Muhonja Odera upon appropriate discharge of Charge by Settlement Fund Trustees, transfer and applicable fees, if any being presented.c.That each party bears their own costs in the Plaintiff’s suit, the 1st and 2nd Defendants’ counterclaim and the cross-claim by 3rd Defendant and Interested Party.” 19.The appellants, dissatisfied with these findings, filed a Notice of Appeal dated 15th May 2020 and a memorandum of appeal dated 23rd July 2020. They raised 11 grounds of appeal challenging the judgment of the learned Judge. We have taken the liberty of summarising the grounds of appeal as follows: that the learned Judge misdirected himself by failing to acknowledge that the suit was statute-barred; erred in finding that there was no discharge of charge, which was a finding that was not pleaded; erred in finding that the appellants had acknowledged that there was an error or mistake in the issuance of the title, which was a finding that was not pleaded; erred in finding that the respondents had proved their case to the required standard; erred in finding that no evidence of fraud was attributable to the appellants, yet made a finding that the title was obtained through fraud or mistake, a contradiction that led to a miscarriage of justice; misdirected himself by failing to appreciate that fraud must be strictly pleaded and proved; erred by shifting the burden of proof; misdirected himself by failing to follow the correct interpretation of section 143 of the Registered Land Act vis-à-vis the facts of the case; erred by failing to uphold the constitutional provisions of Article 40 of the Constitution, as read with section 28 of the Registered Land Act (now repealed); and erred by failing to take cognizance of the evidence in favour of the appellants and by failing to address the counterclaim. 20.The appellants urged the Court to allow the appeal and substitute the orders of the trial court with orders dismissing the 1st - 3rd respondents’ claim and the 4th - 5th respondents’ cross-claim, allowing the appellants’ counterclaim dated 31st March 2011, and directing that the costs of the suit in the trial court and of the appeal be borne by the respondents. 21.The appeal was heard virtually on 12th May 2026. The appellants were represented by learned counsel Mr. Kahari, who appeared together with learned counsel Ms. Moturi. The 1st, 2nd and 3rd respondents were represented by learned counsel Mr. Midikira. There was no representation for the 4th and 5th respondents. Counsel had filed written submissions, which they highlighted orally. 22.The appellants’ submissions are dated 5th March 2025. The appellants abridged the facts of the suit and proceeded to identify and submit on the issues for determination. They argued that the trial court lacked jurisdiction to determine the suit as it was time- barred under the provisions of the Public Authorities Limitation Act. Further, they submitted that it was uncontroverted that the appellants’ title was issued on 28th August 1990 and that the 1st - 3rd respondents averred that they were allocated the property in 1964, but no evidence of the same was tendered. Therefore, as the suit was filed 17 years after the title was issued to the appellants, it was time-barred, and the court ought to have downed its tools. They relied on the provisions of section 7 of the Limitation of Actions Act and the decisions of Kenya Commercial Bank vs Osebe 1982 KECA35 (KLR) and Owners of Motor Vessel ‘Lilian S’ vs Caltex Oil (Kenya) Ltd [1989] KLR1 in this regard. 23.On grounds 2 - 8 of the appeal, the appellants reproduced the finding of the trial court on the inference of fraud and urged that it was not disputed that the late Nehemiah Odera and Salome Muhonja Odera made the requisite payments for Parcel No. Kakamega/Lugari/183. They submitted that thereafter, the District Lands Adjudication and Settlement Officer, Kakamega District, wrote to the Director of Land Adjudication and Settlement in Nairobi on 9th June 1990, requesting the discharge and transfer of the land documents to Salome Muhonja Odera. Subsequently, a discharge of charge was registered on 28th August 1990 before the issuance of a title to her under the provisions of section 27(a) of the Registered Land Act. 24.They posited that the conclusion that there was no discharge of charge was unsupported by any factual evidence, and that since it led to the cancellation of the title, the finding should be set aside. Further, they submitted that the finding that Salome Muhonja Odera admitted to the subject error or mistake, yet no evidence was tendered in support thereof, was erroneous. Additionally, they contended that the amended plaint indicated that the wrongful issuance of the title was discovered in 2003, yet the deceased had passed away in 2002, and as such, there was a misdirection on the part of the learned Judge. 25.On the finding of the court on fraud, the appellants argued that the learned Judge pronounced himself as follows: “…that no evidence was tendered to prove fraud attributed to any of the parties in this matter…” The appellants further argued that having made such a finding, the Court could not then proceed to attribute fraud to one party, which, they submitted, was the cornerstone of the judgment. In addition, they stated that the cancellation of the title was hinged on the provisions of sections 28 and 143 of the Registered Land Act and that it is a principle of law that fraud must be pleaded and proved. They cited the decisions in John Mbogua Getao vs. Simon Parkoyiet Mokare and 5 Others [2017] KECA 156(KLR) and Agingu v Owiti & 2 Others (Civil Appeal 389 of 2019) [2025] KECA 188 (KLR) (7 FEBRUARY 2025), on standard of proof in fraud cases. They additionally cited Vijay Morjaria vs. Nansingh Madhusingh Darbar & Another [2000] eKLR and Wanyororo Farmers Co. Ltd vs. Nakuru Kiamunyeki Co. Ltd [2017] eKLR. They maintained that the court misapplied the provisions of section 143 of the Registered Land Act and that the court erroneously relied on the superiority of the letter of offer issued on 30th November 2006, citing Wreck Motors Enterprises vs. Commissioner of Lands & 3 Others [1997] KECA 391 (KLR) in this regard. 26.The appellants submitted that even if the validity of the letter was upheld, it was only valid for 90 days, as it contained a conditional offer requiring the 1st - 3rd respondents to pay 10% of the purchase price within that period. They argued that no evidence was tendered to prove that such payment was made. Further, they submitted that, if the validity of the letter was upheld, two conflicting interests would arise, and the first in time, being that of the appellants, would prevail. Reliance was placed on Gitwany Investment Limited vs. Tajmal Limited & 3 Others [2006] eKLR in this regard. 27.On possession and occupation, they argued that the decision was erroneous on the ground that vide a judgment delivered on 21st July 1976, in Kakamega Civil Application No. 19 of 1974 - Mabel Ongecha vs. Salome Muhonja, the Court confirmed that Salome Muhonja Odera was in occupation of Kakamega/ Lugari/183 as at 1976 and further found that, in 2009, Rawal, J. affirmed the appellants’ possession and held that the respondents had not provided any documents to demonstrate ownership of Plot No. 183 against the appellants’ prima facie case. 28.The appellants submitted that the trial court relied on the personal opinion of the 1st - 4th respondents regarding amalgamation and failed to take into account the multiple contradictions in their evidence. They contended that the court shifted the burden of proof to the appellants, despite having held that the burden vested in the Government as the custodian of the relevant documents. They posited that the court erred in its evaluation of the evidence on record and the applicable principles of law, thereby misdirecting itself and violating the appellants’ rights under Article 40 of the Constitution and section 28 of the Registered Land Act. Further, they urged that the only reasonable conclusion the court ought to have reached was that the purported amalgamation or remapping was an afterthought, unsupported by documentary evidence, and placed reliance on the decisions in Chief Land Registrar & 4 others vs. Nathan Tirop Koech & 4 Others [2018] eKLR and Moses Lutomia Washiali vs Zephaniah Ngaira Angweye & Another [2018] eKLR. They urged the Court to allow the appeal with costs. 29.The 1st - 3rd respondents, on their part, urged that section 3 of the Public Authorities Limitation Act sets out the circumstances in which it applies, namely, in matters founded on tort and contract. They cited section 7 of the Limitation of Actions Act and submitted that they had pleaded that they discovered the issuance of the title in 2003. Further, they submitted that section 26 of the Limitation of Actions Act provides that where a cause of action arises from the consequences of fraud or mistake, the limitation period does not begin to run until the discovery of the fraud. They posited that they had particularized the mistake and fraud and that evidence was led to prove those facts. This was coupled with the fact that the appellants had been in occupation of Kakamega/Lugari/182, where they had buried their mother, Salome Muhonja Odera. They therefore submitted that, since the fraud was discovered in 2003, the limitation period began to run from that year and, consequently, the suit was not time-barred. 30.The respondents submitted that the finding that the appellants had not obtained a discharge of charge was correct, as the appellants failed to produce any evidence of a discharge of charge in favour of Salome Muhonja Odera. They relied on Chauhan vs. Omagwa [1980] KECA 36 (KLR) on the Protection afforded against the application of section 143 of the Registered Land Act, and contended that there was sufficient evidence demonstrating that they had been in possession of the suit property. They further submitted that they only surrendered possession following the intervention of the court on 30th July 2009. 31.They maintained that the evidence on record from the Government officers demonstrated that there had been several attempts to recover the suit property, all of which were unsuccessful. They reiterated that there was no explanation as to how the late Salome Muhonja Odera obtained the title. They further pointed out that Kakamega/Lugari/182 measures 19.5 hectares (48.4 acres), whereas the suit property, also described as Kakamega/Lugari/ 182, measures 54 hectares (133 acres). 32.The respondents clarified that the suit was not founded on the letter of offer, but on the fact that they had paid the full purchase price for the land on 2nd March 1968. They further submitted that the learned Judge relied on the totality of the evidence in arriving at the determination. They contended that it was evident that they were in occupation of the land in 2009, when the appellants obtained an injunction by waving a title deed as prima facie proof of ownership, which according to them, amounted to an acknowledgement of their occupation and possession of the suit property. 33.On the issue of amalgamation, the respondents argued that all documents that were produced by the Government of Kenya through the Land Registrar demonstrated that they paid in full for plot Kakamega/Lugari/695 which was renamed to Kakamega/ Lugari/183 and at the same time Kakamega/Lugari/182 and 183 were merged to form plot Kakamega/Lugari/182 during a survey exercise to fill in the gaps in numbering. 34.The respondents distinguished the case of Moses Lutomia Washiali vs. Zephaniah Ngaira Angweye & Another [2018] eKLR, cited by the appellants, from the present matter. They submitted that the cited case involved dishonesty on the part of Land Registry officials, whereas, in the present matter, it was apparent that the appellants knowingly took advantage of gaps between Government departments to lay claim to the suit property. They maintained that there was no dispute that the learned Judge properly applied himself to the facts and the law and urged the Court to dismiss the appeal with costs. 35.We have considered the memorandum of appeal, the submissions by the parties and the authorities cited, examined the record of appeal, and analyzed the applicable law. As a first appellate court, this Court is required to subject the evidence to a fresh and exhaustive examination and draw its own conclusions. The principles upon which this Court proceeds in exercising its appellate jurisdiction are well settled. Briefly stated, this Court must reconsider the evidence, evaluate it independently, and arrive at its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must therefore make due allowance in that regard. (See Selle and Another vs. Associated Motor Boat Company Ltd & Others [1968] EA 123). 36.To formulate the germane issues for determination, it is important that we summarize the facts as captured in the record of appeal before us. From the record, the respondent Rodgers Katami Wambia, PW1 an official of Lugari Yearly Meeting of Friends (Quakers) testified that in 1964, East Africa Yearly Meeting of Friends was allocated three plots namely Kakamega/Lugari/695 of 54 hectares, Kakamega/Lugari/694 of 17.5 hectares and Kakamega/Lugari/301 of 48.4 hectares and at the same time, Nehemiah Odera was allocated Plot No. Kakamega/Lugari/183, which was close to Plot No. Kakamega/Lugari/182, which was allocated to Japheth Musoma. Upon realizing that some of the allocated plots were too small, the beneficiaries approached the Ministry of Lands, Department of Settlement, seeking amalgamation, which was subsequently undertaken. He stated that Japheth Musoma was allocated another plot in Songhor Settlement Scheme, being Plot No. 208, while Nehemiah Odera retained Plot Nos. Kakamega/ Lugari/182 and 183, which were amalgamated and assigned a new number, namely Kakamega/Lugari/182, measuring 19.5 hectares (48 acres). 37.It was his evidence that prior to the renumbering of the plots, Plot No. 695, which housed the Farmers Training Centre, was managed by the Friends Church. Following the renumbering, the said plot became Plot No. Kakamega/Lugari/183, measuring 54 hectares (133 acres). It was his further evidence that upon the amalgamation of Plot Nos. 182 and 183, the resultant plot was assigned the new number Kakamega/Lugari/182, measuring 19.5 hectares (48 acres). 38.He stated that when they commenced the process of obtaining their titles, they discovered that a title had already been issued to Salome Muhonja Odera. They raised the issue with the Settlement Office in Kakamega and the Director of Settlement in Nairobi, following which investigations were commenced. He testified that the Ministry of Lands subsequently acknowledged that the title had been erroneously issued to Salome Muhonja Odera. He further stated that Plot No. Kakamega/Lugari/182 was occupied and developed by the Odera family. 39.PW2 was Joah Muriato Shicheni, a village elder, who adopted his witness statement dated 21st August 2017 as his evidence-in-chief. His evidence largely mirrors that of PW1, and there is no need to reproduce the same herein. However, we shall revisit the relevant aspects of his testimony when considering the grounds of appeal, if necessary. 40.The appellants called Rachel Haenda Odera as DW1. She had testified that Salome Muhonja Odera, her mother, was the registered proprietor of the suit land, which she inherited, and that she paid the outstanding balance of the loan in respect thereof. She stated that they had lived on the land since 1964 and that there was a permanent house belonging to the 2nd respondent and a smaller house belonging to herself on the property. She further testified that Marula Secondary School was constructed on the land with the consent of her mother, whereas the church, which was constructed in 2011, was built without their consent. 41.DW2 was the 2nd appellant, Felix Odera Kasuku. He stated that he had not filed a witness statement and elected to adopt the evidence of DW1 as contained in her witness statement, together with the documents she produced as exhibits. 42.DW3 was Thomas Morara Nyangau, a Land Registrar, who stated that parcels Kakamega/Lugari/182 and 183 were allotted to Nehemiah Odera in 1964. He produced the control sheet as evidence. He further testified that Parcel No. Kakamega/ Lugari/695 was allocated to the 1st - 3rd respondents, and that Parcels Nos. Kakamega/Lugari/182 and 183 were subsequently amalgamated in 1965. Following the amalgamation, the resultant parcel was allocated to Nehemiah Odera as Kakamega/Lugari/182, while Parcel No.183 remained uncommitted. He referred to the final area map for Lugari and testified that the acreage of Kakamega/Lugari/182 was shown as 48.2 acres, while Parcel No. Kakamega/Lugari/695 was renumbered as Kakamega/Lugari/183 and allocated to Lugari Yearly Meeting, which paid Kshs. 9,280 for the same in 1968. He further testified that the Ministry’s position was that Parcel No. Kakamega/Lugari/182 belonged to Nehemiah Odera, while Parcel No. Kakamega/ Lugari/183 belonged to the Yearly Meeting Church. 43.DW4 was Richard Malala, the head teacher of Marula Primary School. It was his testimony that Marula Primary School was established in 1982 by the Friends Church (Quakers) on Parcel No. Kakamega/Lugari/183, and that the school occupies 5 acres thereof. He further stated that the school had a total enrolment of 604 pupils and had the potential of being upgraded into a secondary school. 44.We have carefully considered the record of appeal, the documents on record, and the submissions by the parties. The appeal turns on three main issues, namely: whether the suit was time-barred; whether the registration of the appellants’ title was procured through fraud; and, based on the evidence on record, who is the rightful owner of the disputed property. 45.We shall first deal with the issue of limitation. The appellants contend that the suit was time-barred under the provisions of the Public Authorities Limitation Act and that, consequently, the court lacked jurisdiction to entertain the same. Although the 4th respondent pleaded the issue of limitation, it was not canvassed before the trial court. Section 3 of the Public Authorities Limitation Act provides as follows:“Where the defence to any proceedings is that the defendant was at the material time acting in the course of his employment by the Government or a local authority and the proceedings were brought after the end of -a.twelve months, in the case of proceedings founded on tort; orb.three years, in the case of proceedings founded on contract, from the date on which the cause of action accrued, the court, at any stage of the proceedings, if satisfied that such defendant was at the material time so acting, shall enter judgment for that defendant.” 46.Section 7 of the Limitation of Actions Act provides:“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” 47.In the amended plaint dated 14th March 2011, the 1st - 3rd respondents pleaded that they discovered that a third party had been issued with a title to the suit property, following which they approached the Ministry of Lands, Adjudication and Settlement, which acknowledged the mistake. From a reading of the pleadings, the respondents’ position was that they had all along believed that the disputed plot belonged to them and only became aware that a title had been issued to the appellants when they commenced the process of obtaining their titles. According to them, time began to run from the date the fraud was discovered. 48.Section 26 of the Limitation of Actions Act provides as follows:“Where, in the case of an action for which a period of limitation is prescribed, either -i.the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; orii.the right of action is concealed by the fraud of any such person as aforesaid; oriii.the action is for relief from the consequences of a mistake, the period of limitation does not begin to” run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it.” (Emphasis ours) 49.It follows that, as the 1st - 3rd respondents discovered the mistake in 2003 and the plaint instituting the suit was filed on 12th February 2007, the suit could not be said to have been time-barred. We agree with the appellants, in principle, that time begins to run from the date fraud is discovered. In Njenga vs. Mugo & 3 Others (Civil Appeal No. 145 of 2018) [2023] KECA 18 (KLR), this Court discussed the issue as follows:“From the provisions of section 26, it is apparent that the time for limitation is set in motion at the time when an aggrieved party has discovered the fraud or mistake or when it is deemed that he ought to have reasonably and diligently discovered the fraud or mistake.” 50.The central issue for determination is whether the 1st – 3rd respondents proved their claim on a balance of probabilities. Their claim was premised on the allegation that the late Salome Muhonja Odera was erroneously issued with a title to the parcel of land known as Kakamega/Lugari/183 through mistake or fraud. Consequently, they sought rectification of the register in that regard. 51.The parties presented their respective versions regarding the allocation and numbering of the plots. The evidence that tilted the balance is that of DW3, the Land Registration Officer, who clarified the sequence of events leading to the allocation and subsequent renumbering of the parcels of land in dispute. From the record, and as held by the trial Judge, there were initially two parcels of land, namely Kakamega/Lugari/182 and Kakamega/ Lugari/183, which had been allotted to Nehemiah Odera and Japheth Musoma, respectively. It is not seriously disputed that Musoma was subsequently allocated another parcel in Songhor Settlement Scheme. Thereafter, Plot Nos. 182 and 183 were amalgamated in 1965 into one parcel, which was renumbered as Kakamega/Lugari/182, measuring 48.2 acres. The amalgamated parcel was thereafter allocated to the late Nehemiah Odera, while Plot No. 183 remained uncommitted. This position was supported by the production of the control sheet and the final area map. 52.On the other hand, the 1st - 3rd respondents were allotted Parcel No. Kakamega/Lugari/695, measuring 133 acres, for which they paid, as evidenced by the payment receipt dated 30th March 1968. The parcel was subsequently renumbered as Parcel No. Kakamega/Lugari/183. 53.Upon our assessment and re-evaluation of the evidence, we find that several errors occurred, culminating in the issuance of a title deed for LR Kakamega/Lugari/183 to the late Salome Muhonja Odera. Despite the amalgamation of the parcels, she continued to make payments under the reference of Kakamega/Lugari/183. Further, the Ministry issued her with a title deed for the said parcel, which it subsequently acknowledged was issued erroneously through various correspondences and reports. 54.We are in agreement with the finding of the learned Judge that the interests of the appellants lay in Parcel No. Kakamega/ Lugari/182. This is buttressed by the fact that they buried their siblings and mother on the said parcel, demonstrating that they were aware of the parcel that belonged to them. Further, the area map shows that the suit property was three kilometres away from Kakamega/Lugari/182, which corroborates the evidence of DW3 and the 1st – 3rd respondents regarding the history and identification of the parcels. 55.We have also examined the record of appeal and confirmed that there was a renumbering of the plots. At page 70 of the record of appeal, the Final Area List dated 12th October 1982 clearly indicates that Plot No. 695 became Plot No. 183. Additionally, the area map for Lugari Settlement Scheme, produced by DW3 as Exhibit D21, shows the relationship between the old and new parcel numbers, namely that Plot No. 182 became 19.5 hectares after amalgamation, while Plot No. 695 was renumbered as Plot No. 183. 56.The appellants faulted the trial court’s finding of fraud, contending that the same was erroneous. We have considered the facts and the evidence tendered, and it is apparent that there was a mistake in the issuance of the title relating to Parcel No. Kakamega/ Lugari/183. This mistake was acknowledged by the Ministry of Lands through various correspondences from the Director of Land Adjudication and Settlement, Kakamega. In a letter dated 2nd March 2002, following a visit to Parcels Nos. Kakamega/ Lugari/182, 183, 301 and 304, the Director determined that Kakamega/Lugari/182 was occupied by the appellants, while Kakamega/Lugari/183 was occupied by the 1st - 3rd respondents, as follows:“Re: Parcels 301,304 and 183 Lugari Settlement SchemeOn 22nd March 2002, I visited parcels Number 301,304,182 and 183 in Lugari Settlement Scheme. The following was the ground status:-Parcels No. 301, 304This parcel is cultivated by Lake Basin Development Authority – leased by Lugari Yearly Meeting of Friends (QUAKERS).Parcel No. 182This plot is occupied by Salome M. Odera, who has 3 Houses and 2 Graves in the homestead, while the rest is under cultivation.Parcel No. 183This parcel has a Primary School called Marura Primary School (sponsored by Quakers). The rest of it is under cultivation by Lake Basin Development Authority lease.The Quakers are requesting to be documented on Plot Nos. 301, 304 and 183. However, Salome M. Odera has a title for Plot No. 183 instead of 182, while the Quakers are claiming to have stopped.” 57.A letter dated 28th April 2004 and 22nd August 2005 confirming the situation on the ground and communicating difficulty in retrieving the title for rectification is as hereunder:“22nd August 2005Re: Plot Nos. 18 and 183 Lugari Settlement SchemeYour letter ref … refersIt is not possible for this office to retrieve the title deed of P/No 183 from Salome Muhonja Odera and surrender it to your office. It is therefore this office kind request that you handle this case from the Headquarters, where the services of the Departments’ legal officer will be involved.” 58.There was also a letter dated 30th November 2005, which once again confirmed the position following the tracing of the Lugari plots. Further, a letter dated 28th March 2006 confirmed the occupation and possession of Kakamega/Lugari/183 by the 1st - 3rd respondents and recommended the issuance of a title deed in their favour, as follows:“Re: Erroneous Issuance of Title Deed Plot No. 183 – Lugari Settlement SchemePlease note that the above title was erroneously given to one Mrs. Salome Muhonja Odera who occupies plot no. 182 in the same scheme.Plot 183 is being developed and occupied by the Lugari Yearly Meeting Of Friends (Quakers) together with neighbouring plots no. 304 and 301.Recommendations from this office were to document Plot 183 to the Quakers and issue a fresh title to 182 to the named lady above. This case has been pending since 2002 and your office recommended a surrender of the title or swapping plot numbers both of which have been futile up to date.Kindly use our Legal Department to cancel the title deed and issue another in favour of the said lady for her plot no. 182, while documenting plot no. 183 to the Quakers since they have their Primary School there (Marura Primary School) and other developments.” 59.Through another letter dated 12th June 2008, the Ministry maintained that the suit property, Kakamega/Lugari/183, emanated from Kakamega/Lugari/695. The Ministry further acknowledged that, although a title deed for Parcel No. Kakamega/Lugari/183 had been issued at the District Land Registrar’s office, there was no corresponding file in respect thereof. Instead, the available files related to Kakamega/ Lugari/182 and Kakamega/Lugari/695 (new Parcel No. 183). It was therefore concluded that Kakamega/Lugari/182 belonged to the appellants, while Kakamega/Lugari/183 belonged to the 1st - 3rd respondents, as follows:“Records Status on Plots Nos. 182 & 695(New No. 183) Lugari Settlement SchemeOn 12th December 1964, Nehemiah Odera was allocated both plots no. 182 and 183. Plot No. 695 was allocated to Lugari Farmers Training Center as an extension.Later various plots were amalgamated to form single plots i.e. 168 and 176 to form 168 of 22.0 acres.i.177 & 178 to form 177 of 32.6 acres.ii.179 & 178 and 181 to form 179 of 62.3 acresiii.182 and 183 to form 182 of 45 acresDuring title mapping many plot numbers were found to be non-existent. Since the survey of Kenya could not leave gaps in the final area list, they brought forward those big numbers i.e.i.807 became new plot no. 176 of 3.2 Haii.804 became new plot no. 178 of 0.9 Haiii.803 became new number 180 of 0.7 Haiv.801 became new number 181 of 2.2 Ha andv.695 became new number 183 of 54 Ha (133.4 acres)It is worthwhile to note that amalgamated plots maintained single units during title – mapping i.e.i.168 of 9.1 ha (22.5 acres)ii.177 of 10.5 ha (25.9 acres)iii.179 of 27.0 ha (66.7 acres)iv.182 of 19.5 ha (48.2 acres)Though plot no. 183 has a title deed issued at the District Land Registrars’ Office Kakamega, there is no evidence for it to have been discharged from headquarters since we do not have a plot file reading 182 and another reading 695 (New No. 183).I attach a copy of the development map together with a copy of the relevant registry index map sheet 2 and 6 showing the position of 182 and 183 (Old No. 695).From the foregoing, Odera’s plot is no. 182 while Lugari Farmers Training Centre (Read East Africa Yearly Meeting of Friends) is 183 (Old No. 695).” 60.Section 143 of the Registered Land Act (repealed) provides as follows:“Subject to subsection (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration (other than the first registration) has been obtained, made or omitted by fraud or mistake. The register shall not be rectified so as to affect the title of a proprietor who is in possession and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.” 61.The actions of the appellants, including the burial of their siblings and subsequently their mother on Parcel No. Kakamega/ Lugari/182, their knowledge that the title had been erroneously issued to Salome Muhonja Odera, and their subsequent occupation and use of the suit property despite knowing that it was situated three kilometres away from Kakamega/Lugari/182, can only lead to the conclusion that their actions were fraudulent. This conclusion is fortified by the opinion of Mukasa-Kikonyogo, DCJ in Katende vs. Haridas and Company Limited [2008] 2 EA 173, where the Court stated that:“Fraud can be participatory, which means the party participates in fraudulent dealings. However, fraud can be imputed on a person, that is when he or she was aware of the fraud and condoned it, or benefited from it or used it to deprive another person of his rights. In short all those who actually participate in the fraudulent transaction and who had knowledge of it are privy and have notice of fraud.” 62.The appellants clearly intended to benefit from the erroneous issuance of the title deed and, in the process, deprive the 1st - 3rd respondents of their proprietary rights. Their conduct, considered in its totality, imputed fraud on their part. Suffice it to say that even in the absence of fraud, the cancellation of the title on the ground of mistake would still stand in light of the numerous acknowledgments by the Government of the error in the issuance of the title. 63.Another issue that was raised was that the learned judge failed to uphold Article 40 of the Constitution as read with section 28 of the Land Registration Act. We note that in his decision, he acknowledged the right to property and its protections under Article 40 and highlighted the provision of Article 40(6) of the Constitution, to wit:“Fraud can be participatory which means the party participates in fraudulent dealings. However, fraud can be imputed on a person, that is when he or she was aware of the fraud and condoned it, or benefited from it or used it to deprive another person of his rights. In short all those who actually participate in the fraudulent transaction and who had knowledge of it are privy and have notice of fraud.” 64.Consequently, the appellants were not entitled to the protection of the Constitution under Article 40 given that it was established that the title to parcel no. Kakamega/Lugari/183 had been acquired through mistake and error and thus, unlawfully acquired. 65.Whereas the appellants have also faulted the court for failing to address their counterclaim, we draw attention to paragraph 11(f) of the judgment, to wit:“(f)That the findings above that the registration of the suit land in the name of Salome Muhonja Odera was through fraud and or mistake means the 1st and 2nd Defendants counterclaim has no merit and therefore fails.” 66.The counterclaim was premised on the alleged allotment of Parcel No. 183, which allotment was found to have arisen from a mistake. We therefore agree that the learned Judge properly considered and dismissed the counterclaim. 67.In the premises, having considered all the grounds of appeal, we are in agreement with the learned Judge and find no merit in the appeal. Consequently, the appeal fails in its entirety and is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb.......................................JUDGE OF APPEALW. KORIR......................................JUDGE OF APPEALL. M. NDOLO......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR