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JudgmentHANNAH WAMUYU WERU VS KEBIBA49 min read

HANNAH WAMUYU WERU VS KEBIBA

Environment and Land Court at Naivasha Environment and Land Court · · Oundo M Clausina

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIVASHA

ELC LAND APPEAL NO. E011 OF 2024

AMWEMA KEBIBA…………...…………………………….…..…………….APPELLANT

VERSUS

HANNAH WAMUYU WERU…………………………….…....…………..RESPONDENT

(Being an Appeal from the decision of Justice Y.M Barasa (P.M) Principal Magistrate  in Naivasha CM ELC No. 100 of 2019 delivered on 2nd August 2024 at Naivasha)

BETWEEN

HANNAH WAMUYU WERU……………………………………………………PLAINTIFF

VERSUS

ROBINSON MUHUHU KIMANI………………………………………1ST DEFENDANT

AMWEMA KEBIBA……………………………………………………..2ND DEFENDANT

JUDGMENT.

  1. Coming up for determination on Appeal is a matter which was heard and determined by Hon. Y.M Barasa, Principal Magistrate wherein upon considering the evidence of both parties, vide his Judgment dated 2nd August, 2024, the learned Magistrate found in favour of the Plaintiff’s case and went ahead to enter judgement for the Plaintiff as against the Defendants jointly and severally thereby dismissing the 1st Defendant’s counterclaim.
  2. The 2nd Defendant/Appellant, being dissatisfied with the Judgement and Decree of the trial Magistrate has now filed the present Appeal based on the following grounds in his Memorandum of Appeal:
  3. The learned Magistrate erred in law and fact in failing to consider adequately or at all the submissions by the Appellant and the authorities submitted.
  4. That the learned Magistrate erred in not to finding that the 1983 transfer was from the Chemi Chemi farmers to one Wanjohi after the father to the Plaintiff failed to pay the Kshs. 60,000/= he owed the Company as damages and later Mr. Wanjohi transferred to the Appellant.
  5. That the learned Magistrate erred in law and fact in failing to put into consideration the existence of an agreement and ignoring to consider the payment made by the Appellant and all other documents attached.
  6. That the learned Magistrate failed to consider the fact that the Appellant is claiming a share of the suit land which is equal to one acre and not the whole suit land measuring approximately 5 acres.
  7. The learned Magistrate erred in law and in fact in failing to consider the actual number of shares owned by the parties and one share represented which size of land.
  8. That the learned Magistrate erred in law by failing to consider that the Appellant had lived for five years in the suit land before the demise of the Plaintiff’s father and no complaint had been lodged by the Plaintiff’s deceased father on the same and that by the time the Plaintiff was being issued with the title deed, the Appellant had been in occupation of the said land for a period of over 15 years.
  9. That the learned Magistrate erred in law and fact by failing to consider who had the original and authentic documents for plot no. 72 yet the Appellant also presented original sealed documents.
  10. That the learned Magistrate erred in law and fact by failing to consider that the Chairman of Chemi Chemi Farmers Company Ltd intentionally decided to give Daniel ballot No. 72 not considering that there were original documents on the side of Wanjohi and the Appellant in this matter.
  11. That the learned Magistrate erred in law and fact in failing to consider that there were several maps being Nos. 9 and 10 and the fact that the Chairman of Chemi Chemi Farmers Ltd never denied their existence where the Appellants parcel of land changed from 72 (old) to 57 (New) yet in the Plaintiff’s land as they say remained constant.
  12. That the learned trial Magistrate erred in law and in fact in failing to award the Appellant for the monetary loss incurred and for the period he lived on the land parcel Gilgil/Karunga Block 13/202 (Chemi Chemi).
  13. The Appellant thus sought for the following orders:
      1. That a declaration that had been made that the Plaintiff was the lawful owner be set aside and substituted with a finding that the Appellant has a legal right to the suit land.
      2. That the eviction order be quashed and or be set aside and substituted with a finding that the Defendant has a right to occupy whole or part of the suit land known as Gilgil/Karunga Block 13/202 (Chemi Chemi) as the order of eviction is too harsh.
      3. That an order be issued to the Naivasha land survey to excise one acre of land from land parcel No. Gilgil/Karunga Block 13/202 (Chemic Chemi) and the same be Registered to the Appellant.
      4. That the court do consider the fact as laid in the instant appeal and award cost to the Appellant.
      5. That the Respondents bear the costs of the appeal.
  14. In response and in opposition to the Appellant’s Grounds of Appeal, the Respondent filed her Replying Affidavit dated 13th January, 2025 wherein she deponed that the Appeal lacked merit. That whereas the Appellant had been the 2nd Defendant in the lower court case, the 1st Defendant in the lower court case did not file any Appeal and had vacated the portion of land that he had been illegally occupying for which she had taken possession and occupation.
  15. She explained that the land she lay claim to was Land Parcel No. Gilgil/Karunga Block 13/202 (Chemi Chemi) which land initially belonged to her father one Daniel Weru Karaya (Deceased) who had been a Director of the Company and had the original documents being the Share Certificate, Ballot Papers and Receipts. That she had been issued with its title deed on 6th August, 2019.
  16. That two letters from the Company dated 27th September, 2019 and 16th October, 2019 were evident that Plot No. 57 (New), and 72 (Old) formed part of Land Parcel No. Gilgil/Karunga Block 13/202 (Chemi Chemi), to which the Appellant had been illegally occupying.
  17. That it was strange that the purported transfer of Plot No. 57 (New), 72 (Old) land from John B. Wanjohi Waigwa to the Appellant on 19th November 1983 could be effected before the sale Agreement of 29th February, 2002. That the Appellant did not produce the ballot papers of John Wanjohi Waigwa who had purportedly sold him the Plot No. 57 (New), 72 (Old).
  18. That the main issue in the instant case had been the ownership of land which the Learned Trial Magistrate had considered. That there had been neither a Counter-claim or defence of adverse possession raised in the trial court which issues were being raised for the first time in the Appeal and therefore the Appellant was not entitled to the prayers sought herein.
  19. That the Appellant had neither claimed the land nor demonstrated that he had suffered any damages as required in law; general or special damages and his Appeal ought to be dismissed with costs for lack of merit.
  20. Directions were taken for the Appeal to be disposed of by way of written submissions wherein the Appellant’s submission was that he had produced documents in support of his case including a Sale Agreement dated 29th February 2000, Certificate of Ordinary Shares from Chemi Chemi Farmers Company Ltd and various receipts issued by Chemi Chemi Farmers Company which evidence had been corroborated by Mr. John Wanjohi who had been allocated shares in the suit parcel for which he had disposed one (1) acre to the Appellant herein vide a valid sale agreement.
  21. That he had also produced a further list of documents being a Letter from Chemi Chemi Farmers Co. Ltd, Chemi Chemi Farmers Co. Ltd directors meeting held on 30th May, 1984 as well as Chemi Chemi Farmers Co. Ltd Directors meeting held on 6th September 1984 showing how the he had validly become the owner of the one -acre portion of parcel of land No. Gilgil/Karunga Block 13/202 (Chemi Chemi) land which he had been in peaceful occupation.
  22. He relied on the decided case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123 to submit that the court had the legal basis of evaluating afresh the evidence tendered in the lower court and give its own finding.
  23. It was his submission that the Respondent herein had become the owner of the land parcel No. Gilgil/Karunga Block 13/202 (Chemi Chemi) after he had already purchased one acre. That there had been no evidence adduced in court that the said sale had been fraudulent, illegal or a nullity for which he had become a bona fide purchaser for value. He placed reliance, on the definition of a bona fide purchaser, on the Black’s Law Dictionary 8th Edition and the decided case of Samuel Kamere v Land Registrar, Kajiado, Civil Appeal No. 28 of 2005 [2015] eKLR.
  24. He also placed reliance in the decided case of Munyu Maina v Hiram Gathiha Maina Civil Appeal No. 239 of 2009 [2013] eKLR to submit that whereas the Respondent claimed that the land parcel No. Gilgil/Karunga Block 13/202 (Chemi Chemi) was Registered in her name on 6th August 2019, she had only been Registered proprietor as a trustee. That since Succession proceedings hadn’t been conducted whereby the alleged shareholder of plot No. 72 (Old) or 5(New) had died at the point of issuance of the title, the process that had led to the issuance of the title in favor of the Respondent had been irregular hence invalid.
  25. Further Reliance was paced in the Supreme Court’s decision in the case of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment) to submit that the Hon. Magistrate had failed to consider that the Appellant had been in actual possession of the one-acre portion of land prior to the Respondent acquiring the title.
  26. That whereas the Court did not find any irregularity or illegality on the part of the Appellant in the purchase of the one (1) acre portion of the suit land, it had proceeded to enter judgement in favour of the Plaintiff wholly while disregarding the overwhelming evidence that had been presented by the 2nd Defendant, the Appellant herein.
  27. He thus urged the court to allow the Appellant’s Appeal with costs and to grant the payers as prayed in the Memorandum of Appeal.

Respondent’s Submissions.

  1. In response to and in opposition to the Appellant’s Appeal, the Respondent, vide her submissions dated 7th February 2025 summarized the factual background of the matter then proceeded to submit that the Appellant was not entitled to the prayers sought in the instant Appeal because he had neither pleaded a counter-claim for the land nor was he entitled to the Respondent’s land or part of it thereof. That further, the Appellant had not sought for any land to be declared as his land nor for the District Land Surveyor to be ordered to excise for him an acre of land from the Rrspondent’s land. It was thus her submission that the prayers that the Appellant was seeking in the Appeal herein were never canvassed in the lower court thus the Appellant could not come before the court on appeal to seek for land or any other matter which had neither been pleaded nor canvassed in the lower court.
  2. She reiterated the contents of her Replying Affidavit on the Appellant’s claim that he had bought the Plot No. 72 (old), 57 (new) herein vide a sale Agreement dated 29th February, 2000 from one John Wanjohi Waigwa which plot had also been claimed by the 1st Defendant and the Plaintiff herein, to submit that the learned Trial Magistrate had rightfully found that the Appellant did not produce the proper records to show that he owned the said plot.
  3. That the Appellant did not produce documents like the Ballot Papers, Share Certificate or the Receipt of John Wanjohi Waigwa whom he claimed to have bought the land from and further, that he had failed to call the said John Wanjohi Waigwa as a witness or explain why he did not testify despite having listed him as one of the witnesses wherein he had even recorded his statement.
  4. She reiterated that the learned Trial Magistrate had clearly considered how the land had been Registered in the Respondent’s name and found that it lawfully belonged to her. That vide an Affidavit dated 4th May, 2019 produced in evidence, her family members had agreed for the land herein to be Registered in her name wherein the Company had not objected to the same. That indeed, the learned Trial Magistrate had also fully considered the submissions that had been made by the Appellant and all the issues that had been raised therein.
  5. That she had laid basis on how the land had been transferred to her through the evidence adduced by the current Company’s chairman wherein the Appellant’s Pleadings at the Lower Court neither contained a counter-claim nor a claim for any land by way of adverse possession.
  6. That there were procedures laid down for the sale by a Company, as a legal entity, of a parcel of land belonging to a shareholder or a member which was not the position in the present case. That the maps that had been produced by the current Company’s Chairman did not support the existence of the Respondent’s land on the ground. Further, the Appellant did not demonstrate that he had suffered any loss and damages to enable him obtain an award form the learned Trial Magistrate. She thus urged the court to find that the Appellant’s Appeal had no merit and to proceed and dismiss the same with costs.

Summary of evidence tendered before the trial court;

  1. According to the proceedings, the Respondent herein instituted the suit against the 1st Defendant and 2nd Defendant (the Appellant herein) in CMCELC No. 100 of 2019, vide a Plaint dated 11th November, 2019 and Amended on 4th March 2020 wherein she had sought for the following orders;
  2. A declaration that the Land Parcel No. Gilgil/Karunga Block 13/202 (Chemi Chemi) belongs to the Plaintiff.
  3. An order of eviction of both Defendants from Land Parcel No. Gilgil/Karunga Block 13/202 (Chemi Chemi).
  4. Permanent injunction restraining the Defendant from entering or remaining or interfering with Land Parcel No. Gilgil/Karunga Block 13/202 (Chemi Chemi).
  5. General damages
  6. Mesne profits
  7. Costs of the suit and interest thereof at court rate.
  8. Any other appropriate relief the court may deem fit to grant.
  9. Subsequent to the filing of the suit, the 1st Defendant had filed his Statement of Defence and Counterclaim to the Amended Plaint dated 19th March, 2020 wherein he had denied the allegations contained in the Plaint putting the Plaintiff to strict proof while stating that the Plaintiff’s title had been fraudulent as he was the legal and proper owner of the suit land herein and that he had lived therein uninterrupted for a period in excess of thirty (30) years hence the Plaintiff lacked any colour of right. That he had never received any letter/document from the management of Chemi Chemi Farmers’ Company Limited warning him to cease interfering with the Plaintiff’s land.
  10. In his Counterclaim the 1st Defendant (now Plaintiff) claimed ownership all the land known as Gilgil/Karunga Block 13/202 (Chemi Chemi) which had originally been subject plot share number 72 and 76 and sought cancellation of any irregularly, fraudulent and illegal title deed that had been issued to the Plaintiff or any other third party so that the same be reinstated to his name.
  11. The 1st Defendant had thus prayed for judgement against the Plaintiff as follows:
      1. The 1st Defendant seeks cancellation of any title deed to the Plaintiff or any third party in respect of Gilgil/Karunga Block 13/202 (Chemi Chemi).
      2. That the subject suit be declared as owned by the 1st Defendant.
      3. The 1st Defendant prays for dismissal of the Plaintiff’s suit with costs.
  12. The 2nd Defendant on the other hand vide his statement of Defence dated 9th April, 2020 also denied the allegations contained in the Plaint putting the Plaintiff to strict proof while stating that he was only aware of his pot No. 57N and 72 (Old) which he had purchased from John Wanjohi Waigwa who was one of the Directors of Chemi Chemi Farmers Company Limited vide an Agreement dated 29th February 2000. That he had paid all necessary dues and had been issued with payment receipts, member’s ballot card and share certificate. That he had ploughed and planted crops in his plot 57N and 72 (Old) and not the Plaintiff’s alleged plot.
  13. The case then proceeded for hearing wherein Hannah Wamuyu Weru, the Plaintiff herein testified as PW1 to the effect that Land Parcel No. Gilgil/Karunga 13/202 (Chemi Chemi) had initially belonged to her deceased father one Daniel Weru who had died on 21st May, 2005. That she had a title deed to the said land which she had obtained on 6th August, 2019 having been issued to her by Chemi Chemi Farmers’ Company Limited, a Company founded by her deceased father who had been its Director and a shareholder having 16 shares. That upon payment for his shares as per the payment receipts produced in evidence her father had been issued with certificate of shares.
  14. That her father had been given a member’s ballot cards in the year 1981 for numbers 71, 72, 73 and 74 which numbers had also reflected in the Share Certificate. That subsequently after voting, her father had been shown a card wherein the numbers had been joined giving rise to the number in the title deed being number 202. That it had been after the demise of her father, that they had agreed as a family that she takes the suit land herein measuring 0.9 Hectares wherein she had taken possession and proceeded to plant maize and beans.
  15. That while utilizing the land wherein she had dug trenches and planted a live fence some people had claimed ownership of the same wherein the 2nd Defendant had even cut down the fence. That she had reported the matter with the Gilgil Police wherein the 1st Defendant had been summoned. He had denied cutting the fence. That thereafter, in the year 2015, the said 1st Defendant had entered into the land and cultivated ½ an acre therein.
  16. That she had reported him to the chief who had summoned him but he did not cease. That the chief had then referred her to the District Officer (DO) who had issued summons to the Directors of Chemi Chemi Farmers Company Limited, Stanley Nganga, James Nganga Wanjohi, Theuri, Stephen and Elizabeth as he had wanted to know whether she(Plaintiff) had land with the Company. That also in attendance was herself and one Mzee Kisetu whom the 1st Defendant claimed to have given him the land. That the DO had directed the Directors of the Company to show her the land and later it had been discovered that Mzee Kisetu had no land with the Company as he had not paid the money for him to be issued a with a ballot.
  17. That subsequently, the DO had written a letter dated the 28th October, 2015 confirming that her father had been a shareholder of Chemi Chemi Farmers Company Limited and that he had been allocated plot Nos. 71, 72, 73 and 74 and that she had been shown the land by the Company Directors.
  18. That she was however unable to enter into and utilize the land because the Defendants had invaded it and threatened her. That upon completing the payments, she had gone before the board wherein she had been given the Land Control Board Consent after which she had been issued with a title deed. That the Company did not object to her registration as the owner of the suit land herein.
  19. That nonetheless, even after obtaining the title deed, she was still unable to utilize the land as the Defendants had invaded the same. That she had reported the matter to the Chief and the Company’s Directors wherein her Advocate had also notified the Defendants to vacate from the land. When the Defendants failed to comply, she filed suit. That the money that Mzee Kisetu had paid had been refunded to him wherein he had been warned from entering into the land. That there had also been a letter that had been addressed to John Wanjohi informing him that he had no land. That despite this, the 2nd Defendant did not move out of the land but continued utilizing the same. That on the 9th September 2012 she had made a report to the police concerning the 2nd Defendant wherein he had been summoned by the police and informed that the land was the Plaintiff’s.
  20. She confirmed that the 2nd Defendant was still cultivating the land whereas the 1st Defendant had taken ½ an acre of the land and blocked the route to the land. That despite several demand letters to the Defendants to vacate the land, they had not complied. That a search revealed that the land was still hers. That the 1st Defendant had not produced any proof of ownership, was not a member of Chemi Chemi Farmers Company Limited and had nothing to show that Mzee Kisetu had given him the land.
  21. That whereas the 2nd Defendant’s claim was that a Director by the name John Wanjohi had sold the land to him, the said John had denied the claim when he had been summoned by the District officer (D.O). That whilst John Wanjohi had still been a Director in February 2019, only an individual with ballot and certificate could sell land. Balloting had been done in the year 1991 and not in the year 2000.
  22. That she was not aware of the receipts in the 2nd Defendant’s possession. That land No. 57 (new) which he lay claim upon had not been in her father’s certificate as her father’s plot had been No. 72. That she did not know where the 2nd Defendant had obtained his documents from.
  23. The Plaintiff sought for an order of eviction against the Defendants, for costs of suit and the mesne profits since the year 2010 when could not utilize the land due to the invasion by the Defendants. She had thus urged the court to declare the land hers and for a permanent injunction against the Defendants.
  24. The Plaintiff relied on the following documents, in her list and Further lists of documents dated 23rd July 2021, 11th January, 2022 and 2nd February 2023, as her exhibits.
  25. Title deed to land parcel No. Gilgil/Karunga Block 13/202 (Chemi Chemi).
  26. Bundles of Receipts paid to Chemi Chemi Farmers’ Co-operative Ltd by the Plaintiff’s late father.
  27. Members ballot card issued to the Plaintiff’s late father.
  28. Share Certificate issued to the Plaintiff’s late father by the Chemi Chemi Farmers’ Co-operative Ltd.
  29. Letter of Summons that the Assistant Deputy Commissioner has summoned the Directors of Chemi Chemi Ltd.
  30. Letter of Assistant Deputy Commissioner introducing the Plaintiff to the office of Chemi Chemi Ltd.
  31. Death Certificate of Daniel Weru Karaya.
  32. Application for Consent of the Land Control Board.
  33. Letter of Consent of Land Control Board.
  34. Affidavit of Family members.
  35. Demand Notice.
  36. Letter by Maina Wairimu Advocates dated 27th September, 2019.
  37. Latter by Maina Wairimu & Associates dated 23rd May, 2019.
  38. Certificate of Official Search of Land Parcel No. Gilgil/Karunga Block 13/202 (Chemi Chemi)
  39. Receipt dated 28th March 2014 for Kshs. 3,000/=.
  40. Receipt dated 4th April 2014 for Kshs. 2,000/=.
  41. Receipt dated 4th April 2013 for Kshs. 2,000/=.
  42. Receipt dated 1st February 2013 for Kshs. 2,000/=.
  43. Receipt dated 5th October 2012 for Kshs. 4,000/=.
  44. On cross examination by the 1st Defendant, the Plaintiff denied knowing one Jimmy. She confirmed that the 1st Defendant had entered into her land in the year 2015 and that he had not been cultivating the land in the year 2014. That whereas the land was farrow in the year 2012, she was not aware that it had another dispute. That the dispute had been the 1st Defendant and Jimmy whose land bordered the suit land and that Jimmy had been with her father when they had acquired the title.
  45. When she was referred to the 1st Defendant’s documents, she stated that they were fake. Her evidence was that whereas the Director could show someone their respective land and that the ballots had been put in a box, yet she did not know how the ballots had followed each other as numbers 71, 72, 73 and 74. She maintained that as a family, they had agreed that she be given the land. That regardless of the map, the position of the land could not change. That whereas it had been her testimony that the title to the land herein had been Registered on 24th May, 2017, the mother title had been surrendered on 9th January 2018.
  46. She confirmed that her father had 16 shares in the Company and that they had begun cultivating the suit land. She also confirmed that the 1st Defendant had been cultivating ½ an acre portion of the suit land. When she was referred to a Share Certificate, she confirmed that the same had indicated that Jason Seteu had shares which reflected on the receipt as 8 shares.
  47. She further confirmed that she had all the receipts and that her title deed had gone through the right process. she confirmed that the document she was referred to indicated that there had been an agreement that the land be transferred to the 1st Defendant for free. She confirmed that the 1st Defendant had planted trees on the suit land during the pendency of the case. She also confirmed that the 1st Defendant had sued the Company’s Directors wherein Mzee Kisetu had been summoned by the District Officer.
  48. When cross examined by the Counsel for the 2nd Defendant, she confirmed that her father had died in the year 2005. That whereas the 2nd Defendant had trespassed on the suit land in the year 2001 when her father had still been alive, he did not complain. That whilst she had entered the suit land in the year 2011, she had started utilizing the same in the year 2015. She confirmed that the 2nd Defendant’s Agreement had been for the year 2000.
  49. That she had raised complaint in the year 2015 upon entering the suit land although she had obtained the title deed in the year 2017. That the 2nd Defendant had invaded the land in the year 2001. That according to the ballots, her father had 16 shares. She confirmed that both her father and John had been Directors of the Company. That her father had acquired shares in the year 1967 wherein he had been issued with a share certificate that had a seal. She confirmed that the 2nd Defendant’s ballot had a seal too. That while her father’s receipts had been issued between the years 1976 and 1982, the 2nd Defendant’s receipts also had dates and had been signed.
  50. That she was not an employee of Chemi Chemi Farmers Company Limited but a member therein. When she was referred to a Share Certificate, she confirmed that the same was in the 2nd Defendant’s name and that the same had originated from Chemi Chemi Farmers’ Company Limited. She confirmed having complained about the 1st Defendant to the Sub-chief and the District Officer. That whereas the summons from the District Officer had been issued to the Directors, the Defendants had not been summoned thus the District Officer had made a decision in their absence. That whilst she had not seen the Register of members, she was sure that the Defendants did not reflect in the same.
  51. She admitted that she had no proof that the 2nd Defendant had destroyed her fence, the OB did not indicate any name and neither had the 2nd Defendant been charged. She also confirmed that father used to cultivate wheat and beans on the land.
  52. She further confirmed that whereas she had testified that she used to cultivate maize wherein she would get 10 bags of maize per acre, she had nothing to prove the allegation nor that she used to farm or earn from the farm. She however maintained that they had paid for the title had the receipt wherein she had been shown where the land was.
  53. She also confirmed that although she had reported to the Chief that she had been threatened, the Defendants had not been summoned and further that whilst she had photographs showing that the 2nd Defendant had cultivated on her land, the photos did not show the 2nd Defendant digging.
  54. In re-examination, she reiterated as follows; that she had paid the charges before she had been issued with the title and that she was in possession of the receipts to that effect. That when she had reported the Defendants to the District Officer, Mzee Kisetu had been summoned. That whereas the 1st Defendant had been told to file and serve her with documents, he did not comply. That although she was not aware of what a ‘surrender’ was, the document had not involved her land.
  55. When she was referred to the 2nd Defendant’s ballot, she confirmed that although the same had been done in the year 2000, no balloting had been carried out in the said year. When she was referred to the 2nd Defendant’s bundle of receipts, she confirmed that plot No. 90 had been cancelled and No. 72 indicated therein. That her receipts were printed and had a seal with the name of Chemi Chemi.
  56. She reiterated that Jimmy was a neighbor and that it had been ‘Mama’ Jimmy who had had a dispute with the 1st Defendant. That the letter of transfer that she had been shown had not indicated any land parcel number. That whereas her father had shown her the parcel of land herein the Company’s Directors had also taken her to the same land. She confirmed that she had started cultivating the land between the years 2011 and 2012 but she had not utilized the land since the year 2015
  57. PW2, one Eliud Muiruri Karanja, a businessman and the Chairman of Chemi Chemi Farmers’ Company Limited testified that the Company used to buy land and subdivide it to its shareholders. That he became the Chairman in the year 2015. That the Plaintiff was a daughter of Mzee Daniel Kaheru (Deceased) who had been a Director and a shareholder in the Company. That upon Daniel’s demise, his shares had been given to the Plaintiff wherein land parcel No. Gilgil/Karunga Block 13/202 (Chemi Chemi) was the one that had been transferred to the Plaintiff. That the Share Certificate in Daniel’s name showed that he had 16 shares in the Company.
  58. That the Register of shareholders was opened in the year 1965 wherein Daniel had been member number 593 with shares numbers 71, 72, 73 and 74 which numbers had been Registered in the Share Certificate. That before the titles had been produced, members had been shown their land and beacons. That the shares had shown that Daniel owed the Company Kshs. 9,000/= and therefor he could not sell his land before paying the debt. His evidence was that Daniel had demolished Company house and removed items worth Kshs. 60,000/= without the Company’s authority.
  59. That they did not however have any document in the Company showing that Daniel had a debt that had been the reason why the Plaintiff had been given the title deed. His evidence was that the 1st Defendant was not a member of the Company. That he knew Jason Kisetu who had 4 shares as per the Register in the Company but who he did not have a ballot and therefore was to be refunded his money. He explained where a member did not ballot, he did not have land on the ground. That further, had Jason Kisetu transferred land to the 1st Defendant, the Register would have reflected so. That indeed the 1st Defendant had trespassed onto someone else’s land. He however confirmed that the 2nd Defendant was member number 684 as per the Register.
  60. He confirmed that Wanjohi was a member No. 155 and that he had sold all his shares numbers 43, 44, 90, 268, 269, 72 and 164 after which he had bought other shares. That whereas the said Wanjohi had been a Director, he had no authority to sell another Director’s shares. That whilst both Daniel and Wanjohi had share No. 72, the Company had decided to give the said share to Daniel because he had the original documents being the Share Certificate, ballot papers and receipts.
  61. That further, whereas the 2nd Defendant had the Share Certificate, he did not have copy of Company certificate showing Wajohi’s names neither did he have the copies of the documents that had been used in selling plot No. 72 to him. He explained that whilst it had been shown that the 2nd Defendant owned number 72 (old) 57 (new), it had not been shown that the plot had been sold to him. That further, although in Wanjohi’s page it had been shown that plot 72 had been transferred, it had not been shown to whom the said plot had been transferred to.
  62. That whereas Jason Kisetu had been member Number 237, his name reflected in the refund list because he did not ballot. That the Company’s Advocate, one Maina Wairimu had written to the 2nd Defendant informing him that the land did not belong to him. That further, the Company had decided that Wanjohi was not the owner of plot No. 72 (old), 57 (new) hence he had no land to sell to the 2nd Defendant. That he was aware that the Defendants had been in the land since they had refused to move out.
  63. That a letter dated 16th October 2019 had been written to Obae Advocate which letter had clarified that plot number 72 (old) and 57 (new) had not been the same land being claimed on the ground. That on the other hand, the letter dated 16th September 2019 had been for plot number 72 demanding vacation from the land. That they did not have in their documents, the minutes that were in possession of the 2nd Defendant. He explained that for the land to be sold, there would have to be an amendment in the AGM and the same removed from the Register, in their own Register, that he had all the shares.
  64. In cross examination by the 1st Defendant, he explained that the Register, did not indicate when Jason Seteru entered into the land although there had been a receipt to the effect that he had 2 shares. That there had been ballot for Jason K. Seteru and receipts for Robinson. He confirmed that he had been elected in the year 2010. That Jason was a member who had been issued with a receipt and whereas his certificate had the name of Chemi Chemi it was not been genuine because he had not been present when people had signed on the certificates. That the receipt for surveyor that had been paid by Jason and the one for school had shown that he had paid Share Certificate of Kshs. 50/= and Kshs. 1000/= respectively.
  65. His testimony was that the ballot for 72 and 76 showed that Jason had paid surveyor fee, school and water project. That they were ones who had written the letter for the refund of Kshs. 1000/=. That further, they had informed everyone with a debt to come forward so that they could consider what title to be issued. That they had agreed in the meeting that they would open an office to serve people. He also confirmed that whereas he was not the one who had drawn the map, yet it had shown each plot as per share.
  66. That John’s title had been issued on 24th May, 2017. That according to Chemi Chemi, titles had been issued in 2 folds. That the parcels of land with dispute were read in the meeting of the Company and once proved, the Company would transfer title to a member. That the mother title had been surrendered on 1st September 2018, 7 months before their title were issued.
  67. That the title in the Company’s name was not fake as all subsequent titles had been issued. That Jason had been removed from the Register and therefore was not a member. He clarified that Chemi Chemi and Kilunga was one and the same Company. That since he had not been the Chair in the year 2014, he did not know if there was a case in court and he could also not recall whether he had appeared before the District Commissioner in the year 2011.
  68. He explained that they had conducted many AGM which all depended on the agenda to be discussed. That one could not be issued with title deed if they had not surrendered returns. He confirmed that the parcels of land had been private and that the Company had authority to enter names as per the Register. That whereas the 1st Defendant had been on the land when he had been elected Chairman, yet he did not know which year he had entered into the land. That everyone had been required to contribute Kshs. 1500/= to be issued with the title. He confirmed that Mercy was the Company lawyer.
  69. When he was cross examined by the 2nd Defendant, he confirmed that the Company had started in the year 1975 and that he had been elected as the Company’s Chairman in the year 2015. That nonetheless, he had not seen agreement and certificates.
  70. When he was referred to DMFI 1, 2, 3, 4, 5, 6 (a), (b) and 7 (a), (b), (c) and (d), he confirmed that the same had been the 2nd Defendant’s Certificate, Agreement for Sale, ballot card, receipt for transfer, Share Certificate, receipt for survey fee and the receipts showing that the 2nd Defendant had paid for the title deed.
  71. He confirmed that one had to ballot before they could be given title and that the Plaintiff had her original documents. He maintained that Daniel had been owing the Company a sum of Kshs. 9000/= and that according to the Register, he had taken Company’s items worth Kshs. 60,000/=. That they had issued the title deed on the strength of the documents that the Plaintiff had. That whereas they had made resolution based on the documents that had been presented to them, the handing over of Daniel’s debt had not been done.
  72. He confirmed that John Wanjohi had a share in the Company. He also confirmed that the documents that the 2nd Defendant had produced were in the name of Chemi Chemi and that the map was well known. That whereas the 2nd Defendant’s plot read No. 72, he did not have the original documents to prove ownership of the same. He confirmed that each person had been given one ballot.
  73. That it had not been shown how John got plot No. 72 because he did not ballot. That further, it had not been true that they had refused to give the 2nd Defendant land because of his tribe. He confirmed that the Memorandum of Understanding had shown that each Director had 2 shares and that the same had not indicated that some Directors had more than 2 shares in the Company. That the cancelled entries had been for the shares that had not been used.
  74. In re-examination, he confirmed that he had 3 maps wherein the first map had shown demarcations, the second map had shown a combination of the first map showing new numbers while the third map had shown numbers 72 and 202 which had been the titles that had been generated for Gilgil Karunga 115. That the District Commissioner had no authority to order the Company property to be sold since they did not have the minutes to that effect in their office. He confirmed that the 1st Defendant was refunded the money that he had paid. That the 2nd Defendant had written to him and demanded to be refunded his money for which they were willing to refund.
  75. That they had forwarded the Register and the documents that the Plaintiff had before they had issued the title. That however, the Register did not indicate the party to which plot number 72 had been transferred to. That Wanjohi did not produce any document and that the Company did not have a parcel of land to give to the 2nd Defendant.
  76. He confirmed that he had been elected Chairman in the year 2015 but before then, he had been a member. That whereas he did not have documents to the mother title, the document that he had been shown by the 1st Defendant called ‘surrender’ did not have a seal. He however confirmed that the mother title had been surrendered to the lands office. He maintained that Jason did not have the land to sell and that notices had been served to all members. He maintained that Jason did not ballot and that the Plaintiff’s father had 4 acres of land since one acre was equal to 4 shares.
  77. On 8th February, 2024, PW2 had been recalled for further cross-examination wherein upon being cross-examined by the 1st Defendant, he confirmed that as per the 2nd Defendant’s Further List of documents, the names contained therein had been of the members. That however, only two of the said members were concerned with the 1st Defendant’s case, that is Daniel Weru and Seteo. That whereas Daniel Weru had been a shareholder, Seteo had not participated in the balloting hence he was not a shareholder. He explained that a member had to pick a ballot from the ballot box. That whereas all the people had picked ballots, he was not present to know which ballot number had been picked by Daniel.
  78. That they had 2 Registers and that Seteo was No. 237. That the Government had issued the parcels of land as per the Register. That No. 237 was Joseph Ng’anga and Joseph Mungai had been in the main Register. He maintained that they had a secretary to whom everyone took their documents for verification. That Seteo had been in the Registered list although he did not participate in the balloting.
  79. That according to the Register, there had been members who had taken their documents as required, for the processing of the title documents. That whereas he had been the Chairman, he did not renew his CR12 wherein the previous CR 12 had been used in the elections conducted in August.
  80. On further cross-examination by the 2nd Defendant, he confirmed that a letter dated 7th April 2015 had come from Tarakea. He confirmed that the signatures in the documents did not resemble and that the same had been signed by the Deputy Commissioner. He clarified that whereas the document had been for the Deputy Commissioner, the order had been for the Assistant (sic).
  81. That they had not been in the office on 19th June 2015 but had handed over on 16th October 2015. That he had used the Register to get the titles and that the Plaintiff had done a transfer and acquired the title for land parcel measuring 0.9 hectares. He confirmed that nobody had two titles for the same land at Chemi Chemi.
  82. That the Plaintiff had been a member of Chemi Chemi through her father wherein her title had been No. 202 and that two green cards could not be generated for the same title. He confirmed that Daniel Weru’s parcel of land measured 0.90 hectares. That whereas the title from the Register had been 297, he did not have the mutation for the title. He confirmed that exhibit 6 had emanated from the County Commissioner. That whereas there had been a receipt which the 2nd Defendant had used to pay for the transfer, physical planning and the title deed, he had not issued the 2nd Defendant with the title. That whilst there had been No. 72 in the first map, the said number was missing in the third map.
  83. That members were not involved in drawing the maps, but the Chairman although members knew everything that happened. That whereas the 2nd Defendant was member number 684, he did not explain how he got the suit land. He confirmed John Wanjohi had sold plot No. 72 and had been member No. 155. That whereas the 2nd Defendant had been given an opportunity to explain how the said John got the title, he did not do so. He also confirmed that Sara had been given 4 acres.
  84. In re-examination, he confirmed that the Defendant had filed suit on 29th February 2000 concerning plot number 72 old number. That the ballot had been for the 29th February 2000. That if indeed plot 72 had been transferred, it would have been indicated in the Register and the 2nd Defendant would have had two ballots, his and Wajohi’s. That however, he had not been shown Wanjohi’s ballot. That further, if Wanjohi had sold his plot to the 2nd Defendant, the said 2nd Defendant would have had 2 share certificates but he had not been shown Wanjohi’s certificates.
  85. That Weru’s certificate had shown that he had balloted on 11th July, 1984 for numbers 71, 72, 73 and 74. That the 2nd Defendant had not explained how he had acquired plot number 72 since the map had not indicated to whom the said plot had belonged to. That whereas No. 57 was a new number, it had also not been indicated to whom it had belonged to.
  86. He confirmed that the third map had been the final map where members had been combined so as to reduce fees and therefore the same become plot No. 202 which had then been issued in the name of Hannah Wamuyu to whom only one title, which was opened on 24th September 2012 while he had been in the office, had been issued to. That the title could either be in the name of the Company or an individual. That Wamuyu’s land measured 4 acres for which the third map did not show the acreage. That the size of the land depended on the shares one had and that Daniel had 16 shares.
  87. That whereas he was the Chairman and the Defendants had been present during election, they did not ask him to avail CR 12 for the minutes. He maintained that they had not issued the title to the 2nd Defendant and that their lawyer had communicated the same to the said 2nd Defendant.
  88. That the whole of the Company’s land measured 406 acres and that there had been no mutation. He maintained that the summons, exhibit 6, had emanated from the Deputy County Commissioner and had been signed and dated that the signature in the handing over report, exhibit 5, resembled the one in exhibit 6.
  89. He also confirmed that he had attended the meeting with the County Commissioner. That he and the Deputy County Commissioner had been present during the handing over and that the CR 12 had been available. That the Plaintiff had been given the land by the family. That since Seteo did not ballot, he had not been given any parcel of land for which he had been placed on the refund list.
  90. PW 3 one Kingstone Karayo Weru, the Plaintiff’s older brother adopted his witness statement wherein at cross-examination by the 1st Defendant, he confirmed that after the demise of their parents, they had agreed that the Plaintiff would take the suit land herein. That whereas he did not have the land transfer form, the Plaintiff had been cultivating the land between the years 2010 and 2011.
  91. When cross-examined by the 2nd Defendant, his response was that he was not aware of a letter that had been written by his father. He confirmed to have been in a meeting where Stanley had been nominated in the year 2009. He confirmed that a letter he was referred to had been written by the Commissioner.
  92. In re-examination, he confirmed that they had written a letter confirming that the family members did not object to the land being given to their sister for which they had produced an affidavit to that effect. He confirmed that their father used to cultivate the land. That he did not attend the District Officer’s meeting and neither had he been in the meeting at Gilgil. That further, he had neither seen the letter dated 4th May, 1984 nor the minutes.

The Plaintiff had thus closed her case.

  1. The 1st Defendant, Robinson Kahuhu Kimani, adopted his witness statement and sought to rely on his list of documents dated the 19th March, 2020 and 7th December 2021 as his evidence;
  2. Receipts of Chemi Chemi Farmers’ Co-operative Limited.
  3. Directors meetings’ minutes dated 30th May 1984 and 6th September 1984.
  4. Court proceeding, Criminal Case No. 315 of 2014.
  5. Loan Transfer-Chemi Chemi Farmers’ Co-operative Limited.
  6. Letter from Chemi Chemi farmers Co. Ltd to Jason K. Seteu dated 15th May 1981.
  7. Bundle of receipts issued to Jason K. Seteu by Chemi Chemi Farmers Co. Ltd.
  8. Clients account for Jason K. Seteu by Chemi Chemi Farmers Co. Ltd dated 26th May 1975.
  9. Ballot card issued to Jason K. Seteu by Chemi Chemi Farmers Co. Ltd.
  10. Share Certificate issued to Jason K. Seteu by Chemi Chemi Farmers Co. Ltd.
  11. Transfer agreement dated 30th June 2011.
  12. Survey fee map plan receipt for plot No. 72 and 76 issued by land surveyor.
  13. Bundle of receipts issued to the 1st Defendant by Chemi Chemi Farmers Co. Ltd.
  14. Letter dated 7th October, 2019 to Chemi Chemi Farmers’ Co. Ltd.
  15. Proceedings in Naivasha criminal case 315 of 2014 (R versus Jimmy Gichuru).
  16. Judgement in Naivasha criminal case 315 of 2014 (R versus Jimmy Gichuru).
  17. Photographs for plot No. 72 and 76 Chemi Chemi Farmers Co. Ltd.
  18. Letter from Director of Chemi Chemi Farmers Co. Ltd to Assistant County Commissioner Nyahururu dated 28th August 2013.
  19. Application for copy of LR 7092 and LR 3777/232 by Stanley Nganga.
  20. In cross-examination by the Counsel for the Plaintiff, he confirmed that his land was plots No. 72 and 76 and that he had seen the title in court. He confirmed that he had seen the Share Certificate for plot Numbers 71-74 which plots had been amalgamated. That whereas he had not been a shareholder of Chemi Chemi Farmers’ Company Limited, his in-law had been a shareholder. That he did not buy the suit land herein as the same had been given to him free of charge by Jason K. Seteu pursuant to the letter dated 30th June which had been written and executed at the Assistant Chief’s office.
  21. That whereas the land in dispute was in Gilgil, he did not go to Gilgil because he lived in Kimende. That further, they had appeared before the Directors of the Company to draw an agreement to the effect that Seteu had transferred his land to him. That indeed, a Register containing Seteu’s name had indicated that the said Seteu had been among the people to be refunded. That whereas the ballot had a stamp and seal, the owner of the land had not signed on the same.
  22. He confirmed that he had been refunded his money by the Company and that his name had not been entered into the Register book. He maintained that he was in occupation of plot No. 72 which was the same land that was in the Plaintiff father’s share certificate. That he was not however aware whether the 2nd Defendant had also lay claim to the same plot. That he had not joined the Company in the instant case because he was waiting for it to issue him with the title.
  23. He confirmed that they had executed the letter at the chief’s office while the case was pending in court and that it had not been indicated that Seteu had been refunded his money. He also confirmed that the Assistant Chief was not a Director in the Company.
  24. He also confirmed that there had been a criminal case in relation to destroying crops. He acknowledged that Seteu was not a witness in the instant case and that he had been served with an order by the OCS wherein he had been asked to vacate from the land herein.

The 1st Defendant had thus closed its case.

  1. The 2nd Defendant, one Amwema Kebiba also adopted his witness statement as his evidence in chief and produced as evidence, his list and further lists of dated 11th April 2020, 8th October, 2021 and 31st May, 2023 being;
  2. Sell Agreement dated 29th February 2000.
  3. Share Certificate issued to the 2nd Defendant by Chemi Chemi Farmers’ Co. Ltd.
  4. Bundle of receipts issued to the 2nd Defendant by Chemi Chemi Farmers’ Co. Ltd.
  5. Ballot card issued to the 2nd Defendant by Chemi Chemi Farmers’ Co. Ltd.
  6. Letter dated 7th October 2019 to Chemi Chemi Farmers’ Co. Ltd.
  7. Letter from Chemi Chemi Farmers’ Co. Ltd to Daniel Weru Karaya dated 4th April, 1984.
  8. Chemi Chemi Farmers’ Co. Ltd Directors’ Meeting held on 30th May 1984.
  9. Chemi Chemi Farmers’ Co. Ltd Directors’ Meeting held on 6th September 1984.
  10. Letter dated 7th April 2015.Letter dated 28th October 2015.
  11. Chemi Chemi Company Limited members’ Register.
  12. Minutes for handing over and taking over dated 16th October 2015
  13. In cross examination by the Counsel for the Plaintiff, he testified that he had bought plot No. 72 from John Wanjohi Waigwa. That according to the Register, plot No. 72 had been transferred on 19th July, 1983. That whereas his agreement with Wanjohi had been executed on 29th February 2000, he did not ask the Chairman of the Company why the said land had been transferred before he bought it.
  14. He also confirmed that whereas Wanjohi had given him all the land documents, he had not been issued with either a fresh Share Certificate, a fresh ballot box or fresh documents. That that while his ballot was dated 29th February 2000, the balloting had been done in the year 1998. He also confirmed that he did not have Wanjohi’s ballot.
  15. He admitted that he did not see any Company book in the Register containing Wanjohi’s name. That Wanjohi, who had been the Company’s Director and had split his shares. That whereas Daniel Waweru had also been a Director in the Company, it had been Wajohi who had done the transfer although the Register had not mentioned his name.
  16. That Wanjohi had taken him to the ground when he had sold the land to him. He confirmed that he and the 1st Defendant were living in separate plots. He refuted the claim that Wanjohi lacked the capacity to transfer the plot to him. He also acknowledged that there had been no indication anywhere that the minutes had been adopted. That the letter that had been written by Advocate Wairimu had been responded to by his Advocate although he did not have the said response in court.
  17. He denied having been served with any order of injunction. He insisted that he had the right to stay on the suit land. That whereas the Plaintiff had produced a title in court, the same had not been genuine. He confirmed that there had been no court order before the plot was sold.

The 2nd Defendant had thus closed his case.

Determination.

  1. Having considered the record of Appeal, the holding by the trial Magistrate, the proceedings in the trial Court, the written submissions by learned Counsel and the applicable law. Conscious of my duty as the first Appellate Court in this matter, I have to reconsider the decision Appealed against, assess it and make my own conclusions as was stated by the Court of Appeal in Paramount Bank Limited vs. First National Bank Limited & 2 Others (Civil Appeal 468 of 2018) [2023] KECA 1424 (KLR) where the court held as follows;

“A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. A first Appellate Court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. While considering the scope of section 78 of the Civil Procedure Act, a first Appellate Court can appreciate the entire evidence and come to a different conclusion.”

  1. With the background of the proceedings herein above in mind, I find the issues arising for determination as follows:
  2. Whether the Appellant was a bonafide purchaser of one-acre piece of land for value.
  3. Whether the Appellant’s Appeal has merit.
  4. The Appellant in his Appeal, seeks to be declared as proprietor of one acre of land comprised in Gilgil/Karunga Block 13/202 (Chemi Chemi) having bought Plot No. 72 (old), 57 (new) vide a sale Agreement dated 29th February, 2000 from one John Wanjohi Waigwa who was one of the Directors of Chemi Chemi Farmers Company Limited who had then transferred the Plot to him.
  5. That although John Wanjohi Waigwa had given him all the documents, he had not been issued with a fresh share certificate, ballot or any documents. He admitted that he did not see any Company book in the Register containing Wanjohi’s name. That Wajohi had done the transfer although the Register had not mentioned his name, and lastly that Wanjohi had taken him to the ground when he had sold the land to him. That having purchased the one-acre piece of land, he had therefore become a bona fide purchaser for value.
  6. The Respondent’s case on the other hand, which was backed by both oral and documentary evidence herein above, had been that the suit parcels of land initially belonged to her deceased father one Daniel Weru who had balloted for them in the year 1981 at the time when he was a Director, member and shareholder of the Chemi Chemi Farmers Company. That the Appellant had trespassed on the suit land in the year 2001 when her father had still been alive and after his death in the year 2005, she had been issued with the title deed to the land on the 6th August, 2019 as per the wishes of her family.
  7. That whilst she had entered the suit land between the years 2011 and 2012, she had started utilizing it in the year 2015 by cultivating the same, wherein she had even put up a live fence which had been cut down. That she had stopped utilizing the land from the year 2015. That her complaint against the Appellant to the local Administration and the police did not deter him as he continued being in occupation and possession of the land hence she had filed suit to have him evicted.
  8. On the first issue for determination as to whether the Appellant was a bonafide purchaser for value of one acre of land, I find this question was addressed by the Supreme Court in the case of Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) where the court had adopted the Black’s Law Dictionary 9th Edition’s definition of a bona fide purchaser as;

‘one who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims’

  1. The Court had then opined that to establish whether one was a bona fide purchaser for value therefore, it was essential that an inquiry be conducted on the root of the title, right from the first allotment to satisfy oneself of its validity. The court had thus held as follows:

‘Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser.’

  1. It is thus clear from the Supreme Court’s finding which is binding to this court that it is highly unlikely that the Appellant could successfully claim to be a bona fide purchaser for value of land if the title is demonstrably "riddled" with issues. In the present case the Appellant’s case as herein stated was that on 29th February, 2000, he had entered into an agreement with one John Wanjohi Waigwa for the sale of one acre of land comprised in Plot No. 72 (old), 57 (new) for Ksh 19,000/= wherein after he had been shown the land.
  2. The Appellant’s case had been punctuated with the production of the above captioned documents as proof in support of his case. However, during the hearing, it had also emerged that John Wanjohi Waigwa had been a Director in the company. That Plot No 72, had been given by the Company to the Respondent’s father, Daniel Weru Karaya (Deceased) who was a Director and who had the original documents being the Share Certificate, ballot papers and receipts and that John Wanjohi Waigwa herein did not have the authority to sell another Director’s shares.
  3. That whereas the Appellant had the Share Certificate, he did not have the copy of Company certificate showing Wajohi’s names neither did he have the copies of the documents that had been used in selling plot No. 72 to him. Further whereas the alleged transfer of Plot No. 57 (New), 72 (Old) land from John Wanjohi Waigwa to the Appellant had been on 19th November 1983 yet the sale Agreement had been on the 29th February, 2002. The transfer had therefore superseded the sale. Lastly that the said John Wanjohi Waigwa did not ballot and therefore had no land in the company to sell to the Appellant.
  4. In line with the Supreme Court’s finding in Dina Management Limited (case supra) I find that John Wanjohi Waigwa had no valid interest in the land to pass to the Appellant herein.
  5. I have considered anxiously ground (vi) of the Appellants’ Memorandum of appeal for which he faulted the trial Magistrate for not considering that he had been in occupation of the said land for a period of over 15 years.
  6. In Douglas Mbugua Mungai v Harrison Munyi [2019] KECA 376 (KLR) the Court of Appeal observed as follows:

“It is trite law that in civil proceedings, issues are raised by way of pleadings and, as a rule, the court can only lawfully determine issues that are specifically pleaded and proved before it. The court cannot base its decision on an un-pleaded issue. See Gandy v. Caspair Air Charters Ltd. (1956) 23 EACA 139. In the case of Charles C. Sande v. Kenya Cooperative Creameries Ltd Civil Appeal No. 154 of 1992, (UR) this Court stated: -

"We would endorse the well-established view that a Judge has no power to decide an issue not raised before him but having said so, we must revert to the question of how or the manner in which issues are to be raised before a Judge. In our view, the only way to raise issues before a Judge is through the pleadings and as far as we are aware, that has always been the legal position. All the rules of pleading and procedure are designed to crystallise the issues which a Judge is to be called upon to determine and the parties are themselves made aware well in advance as to what the issues between them are."

  1. In the case of Independent Electoral and Boundaries Commission & another vs. Stephen Mutinda Mule & 3 others [2014] eKLR which cited the decision of the Malawi Supreme Court of Appeal in Malawi Railways Limited vs. Nyasulu [1998] MWSC 3, in which the learned judges quoted with approval from an article by Sir Jack Jacob entitled “The Present Importance of Pleadings.” The same was published in [1960] Current Legal problems, at P174 whereof the author had stated;

“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings…for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….

In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”

  1. Order 2 Rule 4 of the Civil Procedure Rules sets out the matters that a party needs to plead. The Court of Appeal in DEN vs PNN [2015] eKLR elaborated on this as follows-

“Generally, the law is that the Courts would determine a case on the issues that flow from the pleadings and judgment would be pronounced on the issues arising from the pleadings or from issues framed for courts’ determination by the parties. It is also a principle of law that parties are generally confined to their pleadings unless pleadings were amended during the hearing of a case. See the Case of Chalicha FCS Ltd Vs Odhiambo & 9 Others [1987] KLR 182 for the proposition that “Cases must be decided on the issues on the record., which is outside the pleadings; the Case of Galaxy Paints Co. Ltd vs Falcon Guards Ltd EALR (2000) 2EA 385 for the proposition that the issues for determination in a suit generally flow from the pleadings and a Court could only pronounce Judgment on the issues arising from the pleadings or such issues as the parties framed for the court’s determination. The Case of Anthony Francis Wareham & Others Vs Kenya Post Office Savings Bank C.A 5 and 48 of 2002. This Court held that a court should not make any findings on matters not pleaded or grant any relief which is not sought by a party in the pleadings; Lastly the Case of Greenfield Investment Limited Vs Baber Alibhai Mainji, Civil Appeal No. 155 of 2004, for the proposition that “…A Court of law cannot pluck issues literally from the air and purport to make determinations on them. It is the pleadings which determine the issues for determination….”

  1. Having found that there had been no counter-claim or defence pleaded on the statute of limitation and/or the doctrine of Adverse possession raised in the proceedings in the trial court, the Court cannot pluck issues literally from the air and purport to make determinations on them or grant any relief herein.
  2. The Appellant’s Appeal lacks merit and is dismissed with costs.

Dated and delivered via Microsoft Teams at Naivasha this 22nd day of May 2025.

M.C. OUNDO

ENVIRONMENT & LAND – JUDGE

    HANNAH WAMUYU WERU VS KEBIBA HANNAH WAMUYU WERU VS KEBIBA