(Being an Appeal arising from the judgement and decree of Hon Stephen Munene Nyaga, Principal Magistrate, delivered on 13th July 2023 in Baricho SPMC E & L Case No 24 of 2019)
INTRODUCTION
1. This appeal challenges the Judgement rendered by Hon. S.M. Nyaga, Principal Magistrate, on 13th July 2023 in Baricho SPMC E & L Case No. 24 of 2019. The Appellant is the defendant in the lower court proceedings whereas the respondent was the plaintiff therein.
2. The key question that fell for determination in the suit was who is the owner of plot no. D 97 Kagio market also known as Lock up No.133 [referred to in this Judgment as “the suit parcel”]. This is also the key question that falls for determination in this appeal.
3. Before I analyse and dispose the issue, I will outline, in brief, the background to the appeal; the grounds of appeal; and the parties’ respective submissions in the appeal.
BACKGROUND
4. Through a plaint dated 15th July 2019, the respondent instituted Baricho SPMC E&L Case No. 24 of 2019 against the appellant, seeking for the following reliefs:
(i) A permanent injunction do issue restraining the appellant, her relatives, her employees, servants, agents and/or anyone claiming under her from entering, disposing, constructing thereon and/ or in any other way interfering with the respondent’s proprietary rights over plot no. D 97 Kagio market also known as L/Up No.133
(ii) An order that the respondent is the rightful owner of plot no D 97 Kagio market also known as L/Up No.133
(iii) Removal of all building material placed by the appellant on plot no. D 97 Kagio market also known as L/Up No.133 and in default forcible eviction to issue
(iv) An order that in the event of forcible eviction, the OCS Kagio police post does ensure compliance and that peace prevails
(v) Any other suitable relief the Court may deem fit and just to grant
(vi) Costs of the suit and interest thereon.
5. The case of the respondent was that at all material times to the suit, she was the legal owner of parcel no. D97 Kagio market, also known as L/Up No. 133 Kagio market, which she acquired as a beneficiary of the estate of Josphat Mbogo Karuri in 2004. The respondent contended that her husband bought the parcel from one Isaac Ngari Kagondu, who was the original allottee from the defunct Kirinyaga County Council in the year, 1994.
6. The respondent further contended that in 1995 her husband put up some permanent structures on the suit parcels, which were later demolished by the appellant’s husband who also laid claim of the suit parcel. To unlock the impasse, the respondent admitted to have had series of meetings at the County Council offices as well as the court in Kerugoya, PMCC No. 300 of 2003, between her husband, the appellant, and the appellant’s husband, one, Ephantus Mwangi.
7. The respondent averred that the suit dragged on in court over the years and was substituted as parties after the death of their husbands. However, due to the prolonged delay, communication broke down between the respondent and her advocates, causing the dismissal of their suit in 2017. Around July 2019, when she was ready to develop her plot, the respondent realized that the appellant had encroached on it, causing destruction of the erected beacons and building materials that had been deposited to develop the plot, resulting in the filing of the lower court suit.
8. On her part, the appellant filed a statement of defence dated 24th July 2019 where she denied the respondent’s claim. The appellant contended that she is the lawful owner of Lock up No. 133, Kagio market, which she acquired through transmission from her late husband, Ephantus Mwangi. The appellant further contended that she had exclusive possession of the suit parcel and that Kerugoya PMCC No.300 of 2003 was in respect of the suit parcel, which was subsequently dismissed for want of prosecution.
9. The appellant averred that she has been in exclusive possession of the suit parcel to the exclusion of the respondent and that the suit is time-barred by virtue of Sections 4(2) and 7 of the Limitation of Actions Act Cap 22.
10. The interested party filed a separate statement of defence, where he contested the appellant’s claim. The interested party’s case was that, as per their records in the county, the respondent was the registered owner of the suit parcel, which she acquired through transmission from her husband, one Josphat Mbogo Karuri. The appellant further contended that the change of names was approved vide Minutes extract Minute No. WTPM & H 245/2004 held on 6th December 2004.
11. The interested party further averred that, from their official records, the respondent’s husband had bought the suit parcel from one Isaac Ngari Kondu vide Minutes No. WTPM & H 44/94. They added that the minutes of ownership in possession of the appellant do not indicate the lock-up number, hence cannot claim ownership of plot No. D97 Kagio market also known as Lock up number 133.
12. In conclusion, it was the interested party position that the county surveyor did visit the suit land and ascertained that the disputed property measuring 13 feet by 66 feet by 36 feet, was a plot and not a lock-up. Again, the surveyor, confirmed that the minutes in possession of the appellant have no lock-up number, despite it being indicated as Kagio. The interested party contended that the respondent’s documents are valid since they are the records, available at their offices.
13. The interested party urged the court to dismiss the appeal with costs as it lacked merit
14. Upon receiving evidence and submissions, the trial court reached a finding that the respondent had proved her case on a balance of probabilities to reiterate that she was the owner of the suit land, with no orders as to costs.
THE APPEAL
15. Aggrieved by the findings and decree of the trial court, the appellant brought this appeal, advancing the following seven (7) grounds of appeal;
1) That the Learned Magistrate erred in law and fact in making judgement against the weight of evidence.
2) That the Learned Magistrate erred in law and in fact in failing to fairly analyse and evaluate the evidence tendered before him.
3) That the Learned Magistrate erred in law and in fact in failing to find that the respondent did not prove her case to the required standard.
4) That the Learned Magistrate erred in law and in fact in disregarding the evidence adduced by the appellant.
5) That the Learned Magistrate erred in law and in fact in disregarding the evidence of replanning of Kagio market by the County council of Kirinyaga.
6) That the Learned Magistrate erred in law and in fact in disregarding the inconsistencies and contradictions in the witness statement recorded by Stephen Wambugu on behalf of the interested party.
7) That the Learned Magistrate erred in law and in fact in disregarding the undisputed fact that the plaintiff’s suit in Kerugoya PMCC no.300 of 2003 had been dismissed.
16. The appellant urged this court to allow the appeal with costs and set aside the impugned Judgement in its entirety with costs.
THE APPELLANT’S SUBMISSIONS
17. The appellant filed written submissions dated 26th June 2026 through M/s Magee Law LLP. Counsel for the appellant identified the following four issues for determination;
(i) Whether the trial magistrate erred in treating plot D97 and Lock -Up No.133 as the same parcel
(ii) Whether the trial court failed to properly evaluate the testimony and evidence before it
(iii) Whether the trial court failed to find that the respondent did not prove her case to the required standard and;
(iv) Whether the trial court erred in failing to determine whether the suit was time barred and res judicata.
18. On whether the trial court erred in treating plot D97 and Lock up no.133 as one parcel, counsel for the appellant submitted that the respondent's claim was founded upon Minute No. WTPM & H 44/94 through which plot D97 had been transferred to her husband, one Josephat Mbogo Karuri and Minute No. WTPM & H 71/2005, where the Works, Town Planning, Markets and Housing Dispute Sub-Committee recommended that plot No. D97 Kagio market be awarded to the respondent.
19. Counsel further submitted that the appellant’s claim was founded upon Minute No. WTPM & H 117/2002, through which Lock Up 133 was allocated to Ephantus Mwangi Wang’ombe. Counsel added that the two properties are distinct and separate and it was not a case of double allocation of the same plot.
20. Counsel contended that the allocation of lock-up no.133 to the appellant’s husband was a result of a re-planning exercise conducted by the County Council pursuant to its statutory powers under Section 166 of the Local Government Act, Cap 265. Counsel argued that the existence of Minute No. WTPM & H 145 of 2003 confirmed that the County Council acknowledged the re-planning of Kagio market and recommended that Josphat Mbogo Karuri be shown an alternative parcel.
21. Counsel added that the trial court assumed that plot D97 and Lock Up No.133 were the same property and failed to consider the re-planning exercise as well as the evidence of the surveyor who testified in his cross-examination that the Lock Up No. 133 Kagio market is not plot D97.
22. On whether the trial court failed to evaluate the evidence before it, Counsel submitted that during cross-examination, the surveyor testified that there was no lock-up in the suit parcel since the ground measured 13 feet by 66 feet by 36 feet, which qualified as a plot. Counsel averred that the surveyor’s opinion was not supported by evidence and went ahead to support this proposition vide the findings made in the case of Mutonvi versus Republic (1982) KLR 203 AT 201.
23. On whether the trial court erred in finding that the respondent did not prove her case to the required standards, Counsel argued that the burden of proof was upon the respondent. Counsel relied on the case of Karugi & another =V= Kabiya & 3 others (1987) KLR 347.
24. On whether the trial court erred in failing to decide on whether the suit was time-barred and res judicata, counsel argued that the appellant raised the defence of res judicata whilst factoring in the preceding suit, being Kerugoya PMCC No.300 of 2003, that was dismissed for non-attendance. Counsel contended that the respondent did not apply to have the dismissal order set aside. Instead, she filed a fresh suit over the same subject matter, thus, the suit was res judicata. Counsel relied on the case of Thomas K. Sambu =v= Paul k. Chepkwony alias Paul Chepkwony Koskei (2015) eKLR.
25. On whether the suit was statute-barred, counsel submitted that the appellant raised the defence of limitation of time and faulted the trial court for failing to consider the same in its defence. Counsel argued that the suit was filed outside the statutory period and ought to have been dismissed.
THE RESPONDENT’S SUBMISSIONS
26. The respondent filed their set of arguments dated 17th September 2025 through M/s Njue Muriithi & Associates Advocates. Counsel for the respondent identified only two issues for determination;
(i) Whether the trial court disregarded the appellant’s evidence while appreciating that of the respondent
(ii) Whether the suit is res judicata.
27. On whether the trial court considered the appellant’s evidence, counsel submitted that the matter had been subject of litigation for a long period, with the initial dispute, involving the parties’ husbands (both deceased), having been dealt with by the County Council of Kirinyaga. Counsel further submitted that the respondent testified that her late husband, one Josephat Mbogo Karuri, bought plot No. D97 Kagio from Isaac Ngari Magondu vide the minutes dated WTPM & H 14/94 dated 18/5/1994.
28. Counsel added that after the demise of her husband, the respondent filed a succession cause and was registered as the owner of the suit parcel. Counsel contended that when the dispute arose, a committee was formed, which concluded that the suit parcel was awarded to the respondent.
29. Counsel contended that the appellant’s documentation did not prove her ownership and, in her cross-examination, she could not produce receipts to confirm payment of rates to the county government. Further, the minutes produced did not indicate the plot reference number, and there was no explanation of how the appellant acquired the root of title. Counsel added that the county surveyor described the parcel as a plot instead of a lock-up.
30. On whether the case was res judicata, counsel argued that PMCC No.300 of 2003 was dismissed for want of prosecution thus, the suit was not heard on merit. Counsel relied on the case of Sangram Singh v Election Tribunal, Koteh, AIR 1955 sc 664, at 711. Counsel urged the court to dismiss the appeal with costs.
ANALYSIS AND DETERMINATION
31. I have read and considered the original record of the trial court and the record filed in this appeal; the grounds of appeal; and the parties’ respective submissions. The key questions to be determined in this appeal are; -
1) Who between the parties has proved ownership of the suit parcel?
2) Is the suit Res Judicata?
32. Before I analyse and dispose the issue, I will briefly outline the principle that guides this court when exercising appellate jurisdiction. The task of a first appellate court was summarized by the Court of Appeal in the case of Susan Munyi =v= Keshar Shiani (2013) eKLR where the court stated as follows:
“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”
33. The principle was similarly outlined in Abok James Odera T/A A.J Odera & Associates =v=John Patrick Machira t/a Machira & Co Advocates [2013] eKLR where the court opined that:
“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”
1) On who between the parties has proved ownership of the suit parcel.
34. From the pleadings and evidence submitted, I note that the respondent claimed she is the legal owner of plot No. D97 Kagio market also known as Lock up No. 133, which she acquired as a beneficiary of the estate of her late husband, one Josphat Mbogo Karuri in 2004. It was her case that in 1995 her husband put up some permanent concrete on the plot, which was demolished by the appellant’s husband in the year, 2003 whilst claiming the same plot.
35. A similar plea was equally advanced by the appellant, who claimed she is the lawful owner of the suit parcel which she inherited from her late husband Ephantus Mwangi.
36. The interested party from their end, pleaded that as per the records held at the county, the respondent is the registered owner of the suit parcel which was transmitted to her from her late husband’s estate, one Josephat Mbogo Karuri, following a succession case and an application for change of name, which was approved vide Minutes extract Min No. WTPM & H 245/2004. The interested party added that the alleged minutes of ownership in possession of the appellant, being Min. No. 117/2002, do not indicate the lock-up no.133.
37. Similarly, and while being cross-examined during trial, Mr. Stephen Wambugu, the County Surveyor, Kirinyaga, reiterated that Min. No. 117/2002, is authentic, and the same, confirms there are no lock-ups within the area. The surveyor also confirmed that suit parcel D.97 was registered by Josphat Mbogo Karuri, the deceased husband to the respondent.
38. This witness in my view, irons out a lot of salient and shrouded issues. For instance, he confirms that the documents produced in court by the respondent are authentic and reflect the actual record as held by the interested party in respect to the suit parcel. Secondly, the witness ascertained that Min. No. WTPM & H 117/2020 in possession of the appellant had no lock up number even if the same is indicated to be located in Kagio. This, according to the surveyor, meant that, the same was not authentic and surprisingly, this position was never contested by the appellant herein. Thirdly, he clarified that the respondent owns the suit parcel which had initially been registered to her deceased husband. Lastly, through his testimony, he reiterated that it was the interested party position, that there were no lock-ups over plot D.97. The disputed parcel, measures 13 FT by 66 FT by 36FT which qualifies to be a plot.
39. The Court of Appeal in the case of Munyu Maina =v= Hiram Gathiha Maina [2013] eKLR, held that;-
“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.”
40. During hearing, the respondent claimed the plot was hers and so did the appellant. However, it was the interested party through the records tabled before court, and the testimony of the county surveyor that corroborated the evidence of the respondent in respect to her ownership claim. From the interested party’s evidence, it cannot be clearer to observe that the case for the respondent was proved on a balance of probabilities to merit the finding made by the trial court.
41. As is expected by Section 107 of the Evidence Act, he who pleads must prove. The respondent in this dispute pleaded ownership of the suit parcel. Sufficient evidence was adduced, which was verified and corroborated by the interested party, to the required threshold of proof.
42. In the converse, not much can be said of the appellant’s case in respect of her meeting the thresholds of Sections 107, 108, 109 and 112 of the Evidence Act. The sections provide;
Section 107:
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
Section 109 then provides; -
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.
Section 112 finally surmises the foregoing provisions and state;
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.
43. In the court of appeal case of Evans Nyakwana –versus- Cleophas Bwana Ongaro [2015] eKLR, the Court re - emphasized the application of Sections 107, 108, 109 and 112 of the Evidence Act, by geniusly holding that; -
“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the law, that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides, the burden lies in that person who would fail if no evidence at all were given by either side.”
44. From the foregoing, it is apparent that I am not persuaded, the appellant proved her case within the required threshold of proof, and most importantly, I am not convinced that, the appellant ably proved her root of title to the disputed parcel to lay an ownership claim for the same.
45. By and large, I find the trial court deduction as to who owns the suit parcel correct and more so, the finding that the respondent is the owner of the suit parcel, sound in law, and aligned to the prescriptions of statute
46. On whether the suit parcel is res judicata, it is evident from the respondent’s pleading that Kerugoya PMCC No.300 of 2003 was dismissed for non-prosecution, thus it was not heard on its merits. The test for determining the application of the doctrine of Res Judicata in any given case is spelt out under section 7 of the Civil Procedure Act.
47. In Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017]eKLR, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:
"(a) The suit or issue was directly and substantially in issue in the former suit.
(b) That former suit was between the same parties or parties under whom they or any of them claim.
(c) Those parties were litigating under the same title.
(d) The issue was heard and finally determined in the former suit.
(e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”
48. From the foregoing, it is clear that for the doctrine of res judicata to apply, the suit must have been heard and finally disposed on merit, by a court of competent jurisdiction.
49. In the present case, that was not the position. PMCC NO. 005 OF 2022 was terminated for non-prosecution as revealed by the decree of the trial court issued on 14th August 2017. Thus, the key issues for determination were never heard and canvassed. As such, I am not persuaded to find that the doctrine of res judicata was contravened, meriting striking out of this case, ab initio.
50. As I conclude, I take cognizance of the appellant’s submissions that the suit was wrongfully entertained as it was statute time-barred. Though not pleaded as a concrete ground, I find it will be unjust to conclude my summations without commenting on the same.
51. From the lower court record I do note, that the defendant did raise this issue under paragraph 5 (b) of her statement of defence. Again, through a preliminary objection dated 24/7/2019 the appellant exhaustively raised the same, seeking for the striking out of the suit. This preliminary objection was canvassed extensively, and on 13th May 2020, the trial court delivered her ruling, dismissing the preliminary objection with orders that costs do remain in the cause.
52. I have perused further the record and combed through the documents submitted. I do not find, in the slighted any indication that this ruling was appealed against.
53. Thus, and flowing from the foregoing discourse, I wholly find no justification or basis for this appeal. The appeal is hereby dismissed for lack of merit.
54. On costs, the general principle is that, costs follow the event. From my evaluation, I do not find, any special circumstances to warrant a departure from this principle. Consequently, the appellant shall bear costs of this appeal.
DISPOSAL ORDER
55. In the end, and having re-evaluated the pleadings and the evidence that was before the trial court, I come to the finding that the respondent proved her case to the required standard and that this appeal lacks merit.
56. The appeal is rejected and dismissed for lack of merit. The appellant shall bear costs of the appeal.
57. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JULY, 2026
L.T. LEWA
JUDGE
IN THE PRESENCE OF:
FOR APPELLANT: Mr. Kathigiu Gichobi Holding brief for Mr. Magee
FOR RESPONDENT: Mr. David Mugo
FOR INTERESTED PARTY: No appearance
COURT ASSISTANT: Ms. Nelly
| KERUGOYA ELC APPEAL NO. E008/20232 |