[Appeal from the judgment of Hon. K.D. Keiwua, CM, delivered on 30 September 2024 in Kangundo CM’s Court, ELC Civil Suit No. E046 of 2019 (Maurice Muthembwa v Charles Kamau Kanyaru T/ A Igma General Land Consultants)]
1. To put the appeal in context, in the plaint dated 9 July 2018, the appellants sued the respondent for a claim of trespass and fraud over Donyo Sabuk/Koma Rock 1/18570 and 18572 (suit land). The appellant claimed to be the registered owner of the suit land and asserted that the deceased respondent (who died in the course of the appeal), although entitled only to four acres of the suit land, had trespassed upon and interfered with an additional 5 ½ acres of the suit land. The appellant denied the deceased respondent's contention that he had purchased additional land and alleged that the documents supporting these claims were fraudulent and intended to unlawfully deprive the appellant of the suit land. He sought the following prayers: -
a. A permanent injunction restraining the deceased respondent, whether by himself or his agents, employees, servants or subjects, from entering, dividing, constructing, trespassing, interfering, residing, selling, sub-letting, transferring, charging, alienating or in any way dealing with the appellant’s parcel of land number Donyo Sabuk /Koma Rock 1/18570.
b. Cost of this suit.
2. Upon service of the pleadings, the respondent filed a defence and counterclaim dated 21 September 2018, which was largely composed of denials and put the appellant to strict proof. He also contended that on or about 13 April 2006, the appellant and the deceased respondent entered into a sale agreement regarding Donyo Sabuk/Koma Rock 1/18572 (18572) measuring 3 ½ acres for a consideration of Kshs. 945,000. Subsequently, on 26th August 2007, the appellant and the deceased respondent entered into another agreement for the sale of Donyo Sabuk/Koma Rock 1/18570 (18570), measuring 4 acres, for a consideration of Kshs. 460,000. He averred that the appellant freely and voluntarily signed the agreements, making the execution legal. In the counterclaim, the deceased respondent affirmed that he was the bona fide owner of the suit land and that, therefore, his possession, occupation, or use thereof could not amount to trespass and maintained he had occupied the suit land for over 12 years. He sought the following orders: -
a. A declaration that the deceased respondent was the bona fide owner of 3 1/½ acres within Donyo Sabuk /Komarok Block 1/18572.
b. A declaration that the deceased respondent was the bona fide owner of 4 acres within Donyo Sabuk /Komarok Block 1/18570.
c. An order compelling the appellant to hive off 3 ½ acres from the title number Donyo Sabuk /Komarok Block 1/18572 and to transfer the same to the deceased respondent forthwith.
d. An order compelling the appellant to hive off 4 acres from title number Donyo Sabuk /Komarok Block 1/18570 and to transfer the same to the deceased respondent forthwith.
e. A permanent injunction restraining the appellant, whether by himself, his agents, representatives and/or whomsoever, from entering, dividing, constructing, trespassing, interfering, residing, selling, subletting, transferring, charging or in any way dealing with the deceased respondent's parcels of land as per order (c) and (d) above.
3. Subsequently, on 7 June, 2023 parties recorded a consent on 4 acres of land, and the only parcel of land that remained in contention was the 6½ acres, which was left for determination on the merits. The case proceeded to hearing before the trial court, where the appellant gave evidence and relied on his witness statement, oral testimony and several documents he produced in support of his case. This documentary evidence was a sale agreement dated 23 December 2003, and 26 August 2007, a copy of the title deed for 18570, a land control board (LCB) application, LCB consent and a mutation form.
4. The deceased respondent also testified, and his evidence was led by his wife, Grace Njeri Mwaura, who gave evidence as PW2. They relied on their witness statements, oral testimony, and several documents the deceased respondent produced in support of his case. These documents comprised bank deposit slips, Mpesa statements, copies of the title deeds for 18570 and 18572, a sale agreement dated 23 December 2003, and correspondence amongst several law firms.
5. Thereafter, in the impugned judgment, the learned trial magistrate found that the defence and counterclaim merited and allowed them with costs.
6. Dissatisfied with this decision, the appellant appealed to this court and filed a memorandum of appeal dated 4 October 2025 and amended on 28 February 2026, where he questioned the impugned judgment on ten grounds which can adequately be collapsed into the singular ground that the learned trial magistrate erred in law and in fact in finding that the appellant did not prove his case and that the deceased respondent proved his case.
7. Accordingly, the appellant urged this court to allow the appeal with costs, overturn the impugned judgment and substitute with an order that the appellant's suit before the trial court be allowed with costs, and dismiss the deceased respondent’s counterclaim with costs.
8. As this is a first appeal, the authority of this court is outlined in Order 42 Rule 32 of the Civil Procedure Rules. Additionally, as an appellate court, this court will not interfere with the impugned judgment unless it is satisfied that the learned trial magistrate misdirected himself and thereby reached an incorrect decision, exercised his discretion wrongly, and caused injustice through such erroneous exercise of discretion. The role of an appellate court was aptly described in the decision of Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR), thus: -
‘Before adverting to the origin of the dispute it is appropriate to reiterate that before this Court can interfere with the exercise of a discretion of a judge, it must be shown that the judge has either erred in principle in his approach or has left out of account factors he ought to have considered or has taken into account some factors that he should not have considered or that his decision was wholly wrong, or that the decision was so aberrant that no reasonable judge, aware of his duty to act judicially could have reached it. These are the words of Sir Charles Newbold, P. expressed in this often-cited Mbogo & Another V. Shah [1968] EA 98 decision as follows:
“…….a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.” ‘
9. Regarding the matter at hand, this court has carefully reviewed the records, the impugned judgment, and the written submissions filed by Ms. Nzuki Nzioka & Co. Advocates for the appellant, dated 30 April 2026, which dealt with condensed grounds of appeal and in doing so, dealt with the issue of adverse possession and maintained that the counterclaim was statute barred by dint of Section 4(1)(a) of the Limitation of Actions Act.
10. However, and imperatively, the issue of adverse possession was never pleaded, canvassed or made an issue for determination, as the deceased respondent in his counterclaim merely stated that he had occupied the suit land for over 12 years. Consequently, this court finds that this new issue is untenable and was introduced on appeal. See the Court of Appeal decision of Kenya Hotels Ltd vs. Oriental Commercial Bank Ltd (Formerly known as The Delphis Bank Limited) [2019] eKLR. Now, having considered the record, grounds of appeal, and submissions, the issues for determination are: a) whether the learned trial magistrate erred in exercising jurisdiction over the matter and b) whether the learned trial magistrate erred in law and in fact in finding that the appellant did not prove his case and that the deceased respondent proved his case. We now proceed to deal with these issues sequentially.
a. Whether the learned trial magistrate erred in exercising jurisdiction over the matter
11. Concerning the jurisprudence on this issue, it is now settled law that jurisdiction is everything and without which a court must put down its tools immediately. A court’s jurisdiction derives from the Constitution, statute, precedent, or a combination of these. Such jurisdiction cannot be assumed or conferred by the parties or by the court’s fiat. In the Supreme Court decision of Samwel Kamau Macharia v Kenya Commercial Bank & 2 Others, Civil Application No. 2 of 2011, the court expressed itself on this issue in the following terms:-
“A court’s jurisdiction flows form either the Constitution or Legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
12. Even if parties do not raise the issue of jurisdiction, the court can suo moto, even on appeal, address the issue. This court adopts the position in the Supreme Court of Kenya decision of Aramat & another v Lempaka & 3 others [2014] KESC 21 (KLR), which held: -
“176.Consequently, where such a jurisdictional question is raised, a challenge of parties being bound by their proceedings cannot rightly lie. The law is the preserve of the courts which courts take judicial notice of. A party does not have a ‘monopoly’ of the law. The court does have this monopoly as it applies the law to a set of facts in reaching its decision. Hence, a court of law can rightly raise a legal question of jurisdiction even where no party raises such a question.”
13. Similarly, the Court of Appeal decision in Hafswa Omar Abdalla Taib & 2 others v Swaleh Abdalla Taib [2015] KECA 871 (KLR) stated: -
“Unfortunately for the parties and despite their industry in ventilating the issue of goodwill, the determination of the appeal will disappoint them as it turns on the question of jurisdiction; that is, whether this Court has jurisdiction to entertain this appeal in the first place. We appreciate that it is an issue that was not raised by any of the parties. However, it is an issue of law that has long been settled and the parties and indeed their legal teams are deemed to know. Accordingly, this Court can suo moto raise and determine the same.”
14. This court, of its own motion, has considered a court order in the record, contained in the deceased respondents' list of documents, issued by Lenaola J. (as he then was) in Machakos Succession Cause No. 539 of 2007 concerning the estate of Isaac Muthembwa Kithome (Isaac), dated 16 April 2008. The order specifically barred the appellant, his wife, and children from dealing with land parcels Nos. Donyo Sabuk/Koma Rock Block 1/470 and 1/178, including selling to third parties, pending distribution of Isaac’s estate to his beneficiaries. At the time of issuance of the order, land parcels Nos. Donyo Sabuk/Koma Rock Block 1/470 and 1/178 had unlawfully and unprocedurally been subdivided to create the suit land and two additional parcels, namely Donyo Sabuk/Koma Rock 1/18571 and 18571. It is uncertain if the deceased respondent, as an alleged purchaser, was a beneficiary of these illegalities.
15. Neither the appellant nor the deceased respondent produced any subsequent court orders to establish that this court order, which was issued by the probate court, had been vacated through review or appeal, nor demonstrated that it had been superseded by events such as a confirmation of grant. In other words, it is probable that the suit land has long been distributed by the probate court and is no longer registered in the appellant’s name. In the circumstances, this court finds that the suit and counterclaim ran afoul of the court's express orders and were an abuse of the court process.
16. In this case, the deceased respondent contended that he had purchased the suit land from the appellant. It is plausible that, in disposing of the suit land to the deceased respondent, the appellant improperly intermeddled with Isaac's estate. Nonetheless, in light of the explicit orders issued by a superior court prohibiting all dealings with the suit land until further orders from the said court concerning the distribution of Isaac’s estate, the learned trial magistrate was bereft of jurisdiction to entertain the matter on its merits. This court so finds. It further concludes that the matter before the trial court was incompetent. These findings render a determination of the second issue unnecessary.
17. The existence of this suit and appeal has resulted in parallel proceedings on the same subject matter, contravening the principle of the binding force of decisions of a superior court (read trial court), resulting in embarrassment, as there now exist two conflicting orders over the suit land, which is not tenable. The appellant and the deceased respondent could file a suit or counterclaim only after the final determination by the probate court.
18. Flowing from the above, this court sets aside the consent judgment of 7 June 2023, the judgment of 30 September 2024 and the consequential decree emanating therefrom, and substitutes them with an order striking out the appellant’s suit and the deceased respondent’s counterclaim, with each party bearing their respective costs. Since the appeal was not opposed, the appellant shall bear his own costs.
Judgment accordingly.
Delivered and Dated at Machakos this 22nd day of September, 2026.
HON. A. Y. KOROSS
JUDGE
22.09.2026
Judgment delivered virtually through Microsoft Teams Video Conferencing Platform
In the presence of;
Ms. Kanja Court Assistant.
Miss Alubi for Mr Mwangi for respondent.
Mr. Nzioka for appellant.
1. To put the appeal in context, in the plaint dated 9 July 2018, the appellants sued the respondent for a claim of trespass and fraud over Donyo Sabuk/Koma Rock 1/18570 and 18572 (suit land). The appellant claimed to be the registered owner of the suit land and asserted that the deceased respondent (who died in the course of the appeal), although entitled only to four acres of the suit land, had trespassed upon and interfered with an additional 5 ½ acres of the suit land. The appellant denied the deceased respondent's contention that he had purchased additional land and alleged that the documents supporting these claims were fraudulent and intended to unlawfully deprive the appellant of the suit land. He sought the following prayers: -
a. A permanent injunction restraining the deceased respondent, whether by himself or his agents, employees, servants or subjects, from entering, dividing, constructing, trespassing, interfering, residing, selling, sub-letting, transferring, charging, alienating or in any way dealing with the appellant’s parcel of land number Donyo Sabuk /Koma Rock 1/18570.
b. Cost of this suit.
2. Upon service of the pleadings, the respondent filed a defence and counterclaim dated 21 September 2018, which was largely composed of denials and put the appellant to strict proof. He also contended that on or about 13 April 2006, the appellant and the deceased respondent entered into a sale agreement regarding Donyo Sabuk/Koma Rock 1/18572 (18572) measuring 3 ½ acres for a consideration of Kshs. 945,000. Subsequently, on 26th August 2007, the appellant and the deceased respondent entered into another agreement for the sale of Donyo Sabuk/Koma Rock 1/18570 (18570), measuring 4 acres, for a consideration of Kshs. 460,000. He averred that the appellant freely and voluntarily signed the agreements, making the execution legal. In the counterclaim, the deceased respondent affirmed that he was the bona fide owner of the suit land and that, therefore, his possession, occupation, or use thereof could not amount to trespass and maintained he had occupied the suit land for over 12 years. He sought the following orders: -
a. A declaration that the deceased respondent was the bona fide owner of 3 1/½ acres within Donyo Sabuk /Komarok Block 1/18572.
b. A declaration that the deceased respondent was the bona fide owner of 4 acres within Donyo Sabuk /Komarok Block 1/18570.
c. An order compelling the appellant to hive off 3 ½ acres from the title number Donyo Sabuk /Komarok Block 1/18572 and to transfer the same to the deceased respondent forthwith.
d. An order compelling the appellant to hive off 4 acres from title number Donyo Sabuk /Komarok Block 1/18570 and to transfer the same to the deceased respondent forthwith.
e. A permanent injunction restraining the appellant, whether by himself, his agents, representatives and/or whomsoever, from entering, dividing, constructing, trespassing, interfering, residing, selling, subletting, transferring, charging or in any way dealing with the deceased respondent's parcels of land as per order (c) and (d) above.
3. Subsequently, on 7 June, 2023 parties recorded a consent on 4 acres of land, and the only parcel of land that remained in contention was the 6½ acres, which was left for determination on the merits. The case proceeded to hearing before the trial court, where the appellant gave evidence and relied on his witness statement, oral testimony and several documents he produced in support of his case. This documentary evidence was a sale agreement dated 23 December 2003, and 26 August 2007, a copy of the title deed for 18570, a land control board (LCB) application, LCB consent and a mutation form.
4. The deceased respondent also testified, and his evidence was led by his wife, Grace Njeri Mwaura, who gave evidence as PW2. They relied on their witness statements, oral testimony, and several documents the deceased respondent produced in support of his case. These documents comprised bank deposit slips, Mpesa statements, copies of the title deeds for 18570 and 18572, a sale agreement dated 23 December 2003, and correspondence amongst several law firms.
5. Thereafter, in the impugned judgment, the learned trial magistrate found that the defence and counterclaim merited and allowed them with costs.
6. Dissatisfied with this decision, the appellant appealed to this court and filed a memorandum of appeal dated 4 October 2025 and amended on 28 February 2026, where he questioned the impugned judgment on ten grounds which can adequately be collapsed into the singular ground that the learned trial magistrate erred in law and in fact in finding that the appellant did not prove his case and that the deceased respondent proved his case.
7. Accordingly, the appellant urged this court to allow the appeal with costs, overturn the impugned judgment and substitute with an order that the appellant's suit before the trial court be allowed with costs, and dismiss the deceased respondent’s counterclaim with costs.
8. As this is a first appeal, the authority of this court is outlined in Order 42 Rule 32 of the Civil Procedure Rules. Additionally, as an appellate court, this court will not interfere with the impugned judgment unless it is satisfied that the learned trial magistrate misdirected himself and thereby reached an incorrect decision, exercised his discretion wrongly, and caused injustice through such erroneous exercise of discretion. The role of an appellate court was aptly described in the decision of Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR), thus: -
‘Before adverting to the origin of the dispute it is appropriate to reiterate that before this Court can interfere with the exercise of a discretion of a judge, it must be shown that the judge has either erred in principle in his approach or has left out of account factors he ought to have considered or has taken into account some factors that he should not have considered or that his decision was wholly wrong, or that the decision was so aberrant that no reasonable judge, aware of his duty to act judicially could have reached it. These are the words of Sir Charles Newbold, P. expressed in this often-cited Mbogo & Another V. Shah [1968] EA 98 decision as follows:
“…….a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.” ‘
9. Regarding the matter at hand, this court has carefully reviewed the records, the impugned judgment, and the written submissions filed by Ms. Nzuki Nzioka & Co. Advocates for the appellant, dated 30 April 2026, which dealt with condensed grounds of appeal and in doing so, dealt with the issue of adverse possession and maintained that the counterclaim was statute barred by dint of Section 4(1)(a) of the Limitation of Actions Act.
10. However, and imperatively, the issue of adverse possession was never pleaded, canvassed or made an issue for determination, as the deceased respondent in his counterclaim merely stated that he had occupied the suit land for over 12 years. Consequently, this court finds that this new issue is untenable and was introduced on appeal. See the Court of Appeal decision of Kenya Hotels Ltd vs. Oriental Commercial Bank Ltd (Formerly known as The Delphis Bank Limited) [2019] eKLR. Now, having considered the record, grounds of appeal, and submissions, the issues for determination are: a) whether the learned trial magistrate erred in exercising jurisdiction over the matter and b) whether the learned trial magistrate erred in law and in fact in finding that the appellant did not prove his case and that the deceased respondent proved his case. We now proceed to deal with these issues sequentially.
a. Whether the learned trial magistrate erred in exercising jurisdiction over the matter
11. Concerning the jurisprudence on this issue, it is now settled law that jurisdiction is everything and without which a court must put down its tools immediately. A court’s jurisdiction derives from the Constitution, statute, precedent, or a combination of these. Such jurisdiction cannot be assumed or conferred by the parties or by the court’s fiat. In the Supreme Court decision of Samwel Kamau Macharia v Kenya Commercial Bank & 2 Others, Civil Application No. 2 of 2011, the court expressed itself on this issue in the following terms:-
“A court’s jurisdiction flows form either the Constitution or Legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”
12. Even if parties do not raise the issue of jurisdiction, the court can suo moto, even on appeal, address the issue. This court adopts the position in the Supreme Court of Kenya decision of Aramat & another v Lempaka & 3 others [2014] KESC 21 (KLR), which held: -
“176.Consequently, where such a jurisdictional question is raised, a challenge of parties being bound by their proceedings cannot rightly lie. The law is the preserve of the courts which courts take judicial notice of. A party does not have a ‘monopoly’ of the law. The court does have this monopoly as it applies the law to a set of facts in reaching its decision. Hence, a court of law can rightly raise a legal question of jurisdiction even where no party raises such a question.”
13. Similarly, the Court of Appeal decision in Hafswa Omar Abdalla Taib & 2 others v Swaleh Abdalla Taib [2015] KECA 871 (KLR) stated: -
“Unfortunately for the parties and despite their industry in ventilating the issue of goodwill, the determination of the appeal will disappoint them as it turns on the question of jurisdiction; that is, whether this Court has jurisdiction to entertain this appeal in the first place. We appreciate that it is an issue that was not raised by any of the parties. However, it is an issue of law that has long been settled and the parties and indeed their legal teams are deemed to know. Accordingly, this Court can suo moto raise and determine the same.”
14. This court, of its own motion, has considered a court order in the record, contained in the deceased respondents' list of documents, issued by Lenaola J. (as he then was) in Machakos Succession Cause No. 539 of 2007 concerning the estate of Isaac Muthembwa Kithome (Isaac), dated 16 April 2008. The order specifically barred the appellant, his wife, and children from dealing with land parcels Nos. Donyo Sabuk/Koma Rock Block 1/470 and 1/178, including selling to third parties, pending distribution of Isaac’s estate to his beneficiaries. At the time of issuance of the order, land parcels Nos. Donyo Sabuk/Koma Rock Block 1/470 and 1/178 had unlawfully and unprocedurally been subdivided to create the suit land and two additional parcels, namely Donyo Sabuk/Koma Rock 1/18571 and 18571. It is uncertain if the deceased respondent, as an alleged purchaser, was a beneficiary of these illegalities.
15. Neither the appellant nor the deceased respondent produced any subsequent court orders to establish that this court order, which was issued by the probate court, had been vacated through review or appeal, nor demonstrated that it had been superseded by events such as a confirmation of grant. In other words, it is probable that the suit land has long been distributed by the probate court and is no longer registered in the appellant’s name. In the circumstances, this court finds that the suit and counterclaim ran afoul of the court's express orders and were an abuse of the court process.
16. In this case, the deceased respondent contended that he had purchased the suit land from the appellant. It is plausible that, in disposing of the suit land to the deceased respondent, the appellant improperly intermeddled with Isaac's estate. Nonetheless, in light of the explicit orders issued by a superior court prohibiting all dealings with the suit land until further orders from the said court concerning the distribution of Isaac’s estate, the learned trial magistrate was bereft of jurisdiction to entertain the matter on its merits. This court so finds. It further concludes that the matter before the trial court was incompetent. These findings render a determination of the second issue unnecessary.
17. The existence of this suit and appeal has resulted in parallel proceedings on the same subject matter, contravening the principle of the binding force of decisions of a superior court (read trial court), resulting in embarrassment, as there now exist two conflicting orders over the suit land, which is not tenable. The appellant and the deceased respondent could file a suit or counterclaim only after the final determination by the probate court.
18. Flowing from the above, this court sets aside the consent judgment of 7 June 2023, the judgment of 30 September 2024 and the consequential decree emanating therefrom, and substitutes them with an order striking out the appellant’s suit and the deceased respondent’s counterclaim, with each party bearing their respective costs. Since the appeal was not opposed, the appellant shall bear his own costs.
Judgment accordingly.
Delivered and Dated at Machakos this 22nd day of September, 2026.
HON. A. Y. KOROSS
JUDGE
22.09.2026
Judgment delivered virtually through Microsoft Teams Video Conferencing Platform
In the presence of;
Ms. Kanja Court Assistant.
Miss Alubi for Mr Mwangi for respondent.
Mr. Nzioka for appellant.