REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COUERT AT NYANDARUA
ELCA NO E010 OF 2025
GITAGA KAGERA MUIGAI......................APPELLANT.
VERSUS
ROBERT CHEGE KAMAU & ANOR ........ RESPONDENTS.
JUDGMENT:
The suit in the lower Court was commenced by a Plaint dated 25/2/2021 where the 1st Respondent was the Plaintiff and the Appellant the Defendant. The 1st Respondent claimed to have been the owner of Kitiri Settlement Scheme Plot No. 623 which upon clearance by the Settlement costs was registered the owner of L.R. NO. NYANDARUA/KITIRI/337. In 1990 or thereabout, the Appellant agreed with one George Stephenson Kamau Buba (Deceased) to sell to him an equivalent of 10 Acres of land to be excised from NYANDARUA/KITIRI/337 upon which the Appellant caused a Mutation of his Title into 4 portions that were ultimately assigned L.R Nos. NYANDARUA/KITIRI/1004 to 1007 (inclusive). L.R. No. NYANDARUA/KITIRI/1004 had a transfer thereof effected on 22/3/1991 and was issued in the Deceased’s favour. But the Appellant did not disclose to the Deceased that the former had had a longstanding feud with the owner of plot No. 625 which was ultimately registered as NYANDARUA/KITIRI/339 under which he had encroached and forcefully maintained a boundary edge the portion sold to the Deceased was surveyed. The Deceased went on the ground with the surveyor in 2013 only to realize that parcel No. 1004 measured 7.3 Acres contrary to what was on the R.I.M, 10 Acres. This is because the beacon to parcel No. 1004 had been pushed into parcel No. 339. The owner of parcel No. 339 happened to be a relative of the Appellant.
This according to the Respondent smacked of fraud on the part of the Appellant against the Deceased particulars of which were said to be: -
a) Illegally hiving off a portion of Nyandarua / Kitiri / 339 and holding it as his own.
b) Misrepresenting the hived off area as a portion of the former Nyandarua/Kitiri/337.
c) Granting to the deceased possession of a portion of land not owned by himself.
d) Receiving consideration for a whole 10 Acres of land but giving out only 7.3 acres
e) Executing the mutation plan of 16/2/90 whilst knowing it was a wrong document.
f) Retaining a larger area of the subdivision of parcel number 337 than on the Survey Plan.
The Appellant therefore benefitted from a consideration of approximately 2.7 Acres of land. He retained a portion of former NYANDARUA/KITIRI/337 in NYANDARUA/KITIRI/1005 measuring 2.02 Hectares (approximately 5 Acres) from which he can compensate the Estate of the Deceased.
He therefore made the following prayers: -
a. An order directing the pushing of the boundary beacons between NYANDARUA/KITIRI/1004 and NYANDARUA/ KITIRI /1005 into NYANDARUA/KITIRI/1005 to excise approximate 2.7 Acres adding the same into NYANDARUA/KITIRI/1004.
b. In the alternative, to (a) above, payment by the Appellant of the current market value of 2.7 Acres of land in Kitiri scheme to the 1st Respondent.
c. Costs of the suit.
d. Any other or further relief as the Court may deem just to grant.
On 26/6/2023, the Appellant filed an undated Defence and Counter-claim where he admitted that at all material times he was the registered owner of L.R No. NYANDARUA/KITIRI/337 and that he sold 10 Acres to the Deceased causing a mutation of the parcel of land into 4 portions viz 1004 to 1007 (inclusive) and while admitting that there was a dispute between him and the owner of L.R No. NYANDARUA/ KITIRI/339 he said that the same was resolved in 1982 before he sold this parcel to the Deceased and that since 1982 there has never been any boundary dispute. He denied commission of any fraud and that the 2.7 Acres can only be recovered from the proprietor of L.R No. NYANDARUA/KITIRI/339.
In the Counter-claim, the Appellant averred that the 2.7. Acres were encroached by the Estate of David Chege Macharia. He asked the Court to dismiss the Respondent’s suit and give the Judgment to him as follows: -
a. An order declaring the Plaintiff (Respondent) as the owner of the 2.7 Acres which are to be excised from NYANDARUA /KITIRI/339
b. Costs of the suit.
c. Any other relief the Court would deem fit and just to grant in the circumstances.
The Defendant’s Defence and Defence to Counter-claim was amended on 28/8/2023 by consent on 27/6/2023 with leave of Court to include a second Defendant, Margaret Gachuhi Chege (sued as an Administrator of the Estate of David Chege Macharia (Deceased). In the Reply to Defence, the Respondent averred that the Appellant pointed out to the Respondent’s father the area of the land that the family has lived on from the date of transfer. He denied the averments in the Appellants Counter-claim.
After the Respondent’s case was closed on 10/9/2024, the Appellant’s case was to be heard on 5/11/2024 when he was said to be unwell and the Court gave him the last adjournment. The same was adjourned to 4/3/2025. Again, there was an Application for adjournment on the ground that Mr. Karanja for the Appellant was said to be in hospital attending to a medical emergency. This time round, the Appellant was not lucky and his case was closed. The matter proceeded with the 2nd Defendants case, closed and Judgment delivered in favour of the Respondent.
After Judgment was delivered, the Appellant appealed to this Court for orders that:
(a) The Appellant’s Appeal be allowed in whole.
(b) The Judgment and Decree of Honourable H. Adika, Principal Magistrate delivered on 29/4/2025 be set aside or varied.
(c) The Appellant be awarded the costs of the Appeal and the costs in the subordinate Court.
The Grounds upon which the Appeal is founded are that:
1. The learned Magistrate erred in law and in fact by disregarding Sections 18 and 19 of the Land Registered Act,2012.
2. The learned Magistrate erred in law and in fact by disregarding Section 7 of the Limitation of Actions Act as the Suit was time barred.
3. The learned Magistrate erred in law and in fact when completely ignored the Appellants amended counterclaim that the issue therein was a boundary dispute between the Appellant and the Respondents herein.
4. The learned Magistrate erred in law and in fact when failed to order for a land registrars report in regards to the dispute and counterclaim filed in Court.
5. The learned Magistrate erred in law and in fact by disregarding Section 4 (1) of the Limitation of Actions Act as the same premised on contract of sale of land.
6. The learned Magistrate erred in law and in fact when he recognised that a Survey Report indicating that the 2.7 Acres are fenced within Nyandarua/Kitiri/339 and yet proceeded to issue orders for excision of 2.7 Acres against the Appellants’ land Ref. No. Nyandarua/Kitiri/1005.
7. The learned Magistrate erred in law and in fact by disregarding Section 26 of the Limitation of Actions Act as the Suit was statutorily time barred.
8. The learned Magistrate failed to differentiate encroaching and excision of land as the Appellant’s claim was that the 2nd Respondent’s fence had encroached on Nyandarua/Kitiri/ 1005.
9. The learned Magistrate erred in law and in fact by failing to consider that no sale agreement was provided to collaborate the evidence,
10. The learned Magistrate erred in law and in fact when he failed to take cognizant of the fact that the Respondent purchased the property from NYANDARUA/KITIRI/337 and which property doesn’t exist as the same was subdivided into NYANDARUA 1004, 1005, 1006 and 1007.
11. The learned Magistrate erred in law and in fact when he disregarded the order of surveying of NYANDARUA/KITIRI/339 to confirm its actual ground size compared to the Title.
12. The learned Magistrate erred in law and in fact when he failed to take cognizant that when the 1st Respondent was purchasing the property around 1990 from the Appellant herein, the dispute had long been solved since 1982 and thus there was no standing issue.
13. The learned Magistrate erred in law and in fact when he failed to take cognizant of the fact that the father of the 1st Respondent herein had died in 2020 and failed to explain the unreasonable delay in filing the Suit.
14. The learned Magistrate erred in law and in fact by recognizing that the 1st Respondent herein has capacity to obtain the orders herein in person as reflected in his pleadings and thus lack locus standi.
I asked the parties herein to file their submissions prior to retiring to write this Judgment. I wish to consider whether the Learned Trial Magistrate was justified in locking out the Appellant and disallowing him to adduce evidence. This I will do before analyzing the Evidence to find out whether the Judgment can stand.
The presence in Court of the Appellant on 5/11/2024 when he was said to be unwell and the matter was adjourned to 4/3/2025 when a Mr. Matunda Advocate held brief for the Appellant’s Advocate Mr. Karanja who it was submitted was in hospital attending to a medical emergency. This was not substantiated. However, it was not clear whether, having not attended the previous Hearing due to what was said to be sickness on his part, the Appellant had been informed of the Hearing date. Failure by his Advocate to turn up in Court and again not disclosing the whereabout of his client was the Advocate’s clear negligence. At least the Advocate sent somebody to hold his brief but that was not an excuse for him not to have informed his client to turn up in Court. The Court was blameless. Counsel for the Respondent was also not to blame. The Question that begs answer is, who then was to blame? The then Counsel for the Appellant may not have taken the matter seriously as is expected of a responsible Advocate. I therefore feel that the mistakes of an Advocate which actually amount to negligence on his part and which cost the Client so much should not be visited on the client. Under Section 3A of the Civil Procedure Act:
Nothing in this Act shall limit or otherwise affect the inherent
power of the court to make such orders as may be necessary
for the ends of justice or to prevent abuse of the process of the
court.
I will therefore order for a re-trial of the Suit. Not de novo, but only for the Appellant’s case to be heard and together with the evidence on record, a Judgment to be delivered. This being the case and as I emphasize that the Learned Trial Magistrate was not wrong in locking out the Appellant and disallowing him to adduce evidence, I will therefore not go to the merit or otherwise of the Judgment of the Honourable Trial Magistrate as the case may come back to me on Appeal after further Hearing and Judgment. I will award the throw away costs at Kshs. 15,000/= payable within the next 14 Days to the Respondents.
Judgment dated and delivered at Nyandarua this 2nd Day of March 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson.
Appellant………….Mr. Gathumbi.
Respondent………..Mr. Irungu.