1. This is an Appeal from the Judgment of Hon. R. Kefa, Senior Resident Magistrate, Nyeri, dated 24th February 2020, in MCL& E No.185 of 2018. The Appellant filed a Memorandum of Appeal setting out the following Grounds of Appeal –
1. The Learned Trial Magistrate erred in law and fact by relying on the oral evidence of the Respondent, while there was clear documentary evidence of the Appellant's ownership of the suit land.
2. The Learned Trial magistrate erred in fact by failing to determine all issues that were before her.
3. The Learned Trial Magistrate erred in law and fact by finding that the Respondent had proved her case on a balance of probabilities.
4. The Learned Trial Magistrate erred in law and fact by failing to appreciate that the Respondent acquired title pursuant to an award that was set aside and was therefore null and void.
5. The Learned Trial Magistrate erred in law and fact by failing to follow the rules and law relating to the writing of judgment.
6. The Learned Trial Magistrate erred in law and fact by allowing the Respondent to retain land that was received under a void judgment and thereby unjustly enriching the Respondent.
7. The entire judgment was against the weight of the evidence on record.
8. The Trial Magistrate did not properly analyse the evidence on record.
9. The Learned Trial Magistrate erred in law in failing to resolve the Appellant’s counterclaim.
10. The Learned Trial Magistrate erred in law in failing to appreciate and apply the law relating to acquiescence, adverse possession, trespass, rectification of title, limitation of actions and inheritance of shares.
2. The Plaintiff’s claim is set out in the Plaint amended on 31st May 2016; she claims ownership of Land Parcel Gakawa/Kahurura Block IV/239. The ownership arose from her deceased husband’s shares in Mbare ya Mute Company Ltd.
3. The Plaintiff claimed that around 2001, she discovered that the Plaintiff had illegally and without consent entered on her land and started cultivating. She reported the dispute, which was heard and determined by the Kieni Land Disputes Tribunal. The dispute was decided in her favour, and the defendant's title was cancelled and a fresh one issued to her.
4. The Plaintiff sought the following orders inter alia –
(a) A declaration that the defendant is illegally in occupation of the Plaintiff’s land GAKAWA/KAHURURA BLOCK IV/239, and he should be evicted.
5. The Defendant filed a defence and counterclaim amended on 25th May 2016, where he denied the Plaintiff's claim. He averred that the decision of the Land Disputes Tribunal was appealed against, and at the time of filing the defence, the Appeal was still pending the decision in the Appeal.
6. The Defendant claimed that he had been in exclusive, legal, lawful and uninterrupted use, occupation and possession of the suit land since 1990. The defence further put up the defence of acquiescence, overriding interests.
7. The counterclaim sought an order-
“That the title in respect of LR No.Gakawa/Kahurura Block IV/239 be and is hereby rectified by cancelling the name of Annah Nyambura Githenya and inserting the name of Peterson Macharia Muthami as proprietor.”
8. The Trial Court in a Judgment dated 24th February 2020 found that the Plaintiff had proved her case on a balance of probabilities and entered Judgment in her favour and ordered-
“It is hereby declared that the Defendants are illegally in occupation of the Plaintiff's Parcel of Land Gakawa/Kahurura Block IV/239 and should be evicted.”
The Defendant appealed this decision to this court.
Proceedings at the Trial Court
9. The Plaintiff testified and did not call any witnesses. She adopted her witness statement and produced the documents listed in her list of documents. She testified that the suit land was purchased by her late husband, Gitenya Igera, by virtue of being a shareholder of Mbari ya Mute Company, a land buying company comprising people from Mwea. After her husband’s death, the company called for balloting, and she was allocated number 239 and was shown the land. Later on, she learnt that the Defendant was claiming ownership of the land she had cultivated and planted wheat. She reported the matter to the Chief and to the Land Disputes Tribunal, which found in her favour and the Tribunal Judgment was adopted as a Judgment of the court.
10. The Plaintiff produced in evidence, receipts for the purchase of shares and other payments, ballot paper, title deed to the suit land issued on 19th April 1994 and another issued on 27th January 2010, certificate of official search and proceedings of the Kieni East Land Disputes Tribunal. She also produced a Share Certificate issued to her, Receipts for share Capital issued to her dated 4th March 1996 and 5th June 1989.
The Defence Case
11. The Defendant testified and called 2 witnesses. DW1, SUSAN MULEI, the Land Registrar of Nyeri, testified and stated that she held titles to the suit land and a Green Card. They showed that the current owner from 9th January 2009 was Annah Nyambura Githenya, while the immediate former owner was Peterson Macharia. The initial transfer from the Government of Kenya was through a transfer by the Land Buying Company, Mbari ya Mute, in favour of Peterson Macharia. The transfer was supported by a Members List, Share Certificate and Ballot. Annah Nyambura got the land through an award in Case Number 21 of 2008. She produced in evidence the Ballot Register and Share Certificate.
12. On cross-examination, the witness confirmed that the Title reading the Plaintiff's names, which was dated 19th April 1994, was not registered in their offices and was surrendered for her to be issued with the title dated 9th January 2009. She also confirmed that the Register for the land was opened in September 1994 when the Members List was forwarded by the Company.
13. DW2, the Defendant herein, testified and relied on his witness statement dated 28th June 2018. He also filed 2 lists of documents dated 16th February 2017 and 28th June 2017. He stated that he bought the suit land from Waweru Kamau and has lived on the land since 1990. He lost the ballot paper and receipts given to him at his place of work, but had a Share Certificate. He was issued with a title deed on 9th November 2005.
14. He testified that the award of the Land Disputes Tribunal that gave the land to the Plaintiff was set aside by the Court. He also stated that the Plaintiff did not have the capacity to sue since she was not an Administrator of her husband’s estate, and that the case is time-barred.
15. The Defendant produced a title deed to the suit land issued on 9th November 2005, Memorandum of Appeal in Nyeri Central Appeals Committee Appeal No.7 of 2008 dated 24th July 2005, Letter from Waweru Macharia & Company Advocates, Letter from Deputy Registrar High Court, Judgment in Nyeri ELCA No.42 of 2014, Decree and Share Certificate No.1018 in the name of Waweru Kamau with an incomplete date 5th February.
16. On cross-examination, he did not know the company member's number for Waweru Kamau. He confirmed that Waweru Kamau’s name did not appear on the list, and he never noted it, and that though he reported loss of his papers to the company, he did not report it to the police. He voted in 1990, and the day after, he found the ballot paper was missing. He further stated that his agreement with Waweru was taken by Mbari ya Mute Company.
17. DW3, JULIUS MWETHYA, stated that he was one of the Directors of Mbari ya Mute Company. He adopted his witness statement and confirmed the list of members of the company dated 20th June 2015, where it shows the Defendant was a member. He confirmed that the suit land belonged to the Defendant, having bought it from a Shareholder, Waweru Kamau, in 1990. The company had 2500 members, and only 430 acres of land were available; those who did not get ballot papers were refunded their money.
Appellants Written Submissions
18. Counsel submitted that the Land Disputes Tribunal Award that awarded the suit land to the Respondent was set aside vide Nyeri ELCA No.42 of 2017, and the Trial Court erred in upholding a title issued as a result of the Tribunal Award.
19. Counsel submitted that the Trial court failed to consider the issues set out in the pleadings before her and only dealt with the issue of whether the Defendant was in illegal occupation of the suit land, who is entitled to registration as owner of the suit land and whether the Plaintiff’s claims are barred.
20. Counsel faulted the Trial Court for failure to address the issue of the Defendant's exclusive legal, active and uninterrupted use and occupation of the suit land since 1990, the Plaintiff's capacity to sue, and whether the Plaintiff was guilty of acquiescence. The Trial Court was also accused of failure to address the issue of whether the Plaintiff's title was subject to the Defendant's overriding interests under Section 28 of the Land Registration Act.
21. The Appellant’s counsel submitted that the Respondent had not proved her case on a balance of probabilities, especially considering that her title was obtained through an award that was set aside. He relied on Nsato Moraa Vs. Mageto Sabure (2020)eKLR, Mary Kerubo Vs. Chief Magistrate's Court, Kisii Law Courts & 5 Others (2017)eKLR.
22. Counsel claimed that the Judgment was against the weight of evidence as the Trial Court failed to properly analyse the evidence on record.
23. The Trial Court was further faulted for failure to properly address issues of acquiescence, Adverse Possession, Trespass, Rectification of Title, Limitation of Actions and Inheritance of Shares.
Respondent’s Written Submissions
24. Counsel for the Respondent submitted on all the Grounds of Appeal. On ground 1, counsel submitted that whereas the Respondent produced documentary evidence to prove ownership of the suit land, the Appellant alleged that all the documents to prove ownership were lost.
25. Counsel submitted that the Trial Court dealt with all the issues pleaded on time bar, adverse possession and legal capacity of the Respondent.
26. On whether the Respondent proved her case on a balance of probabilities, counsel relied on Humbert L. Martin & 2 Others Vs. Margaret J. Kamar & 2 Others (2016) eKLR that one has to prove that the title to land was acquired lawfully. He stated that despite the setting aside of the Tribunal Award, the Respondent proved ownership of the suit land. Counsel further submitted that the Trial Court did not fail to follow the rules of Judgment writing and that the Judgment was in accordance with the evidence adduced.
27. It was submitted that the Trial Court had the power of rectification of a title as provided under Section 80(1) of the Land Registration Act.
Analysis and Determination
28. The court has carefully considered the Grounds of Appeal, the Record of Appeal and the submission by counsel for the parties. Since this is the first appeal, this court is enjoined by the provisions of section 78 of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) to evaluate and examine the trial court’s record and the evidence presented before it in order to arrive at its own conclusion. The said section sets out the Powers of an appellate court:
(1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require the evidence to be taken;
(e) to order a new trial.
(2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.
29. This principle of law was well settled in the case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123, where the Court of Appeal outlined the duties of a first appellate court as follows:
“[An appellate court] is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...
30. The court is of the view that the Grounds of Appeal may be summarised into the following issues for determination –
i) Grounds 1, 3, 7, & 8 - whether the Learned Trial Magistrate erred in law and fact and decided the case against the weight of evidence.
ii) Grounds 4 & 6 – whether the Trial Magistrate erred by failing to appreciate that the Respondent’s title was acquired through an award that was set aside.
iii) Ground 2 & 10– whether the Learned Magistrate erred in failing to determine all the issues that were before her, including acquiescence, adverse possession, trespass, rectification of title, limitation of actions and inheritance of shares.
iv) Ground 9 – whether the Trial Court erred in failing to resolve the Appellant’s counterclaim.
31. On issue No.1, Grounds 1, 3, 7, & 8 - whether the Learned Trial Magistrate erred in law and fact and decided the case against the weight of evidence, the court has considered the rival submissions by counsel as set out earlier. The Respondent filed the suit before the Trial Court as the absolute registered proprietor of the suit parcel of land, claiming that she was registered as such on 4th November 2009. She also traced her ownership of the land to the fact that her husband, Githenya Igeria, bought some shares in Mbari ya Mute Company Ltd, and after his death, she pursued the shares and was awarded the suit parcel of land. In support of her claim she produced in evidence receipts from the Company dated 6th May 1973 for entry fee, 5th June 1984, 5th November 1984, 27th March, 1984, 10th October, 1977, 15th July 1976, 22nd May 1974, 23rd May 1973, 10th October 1973, 15th July 1976, 22nd May 1974, 23rd May 1972 for share capital all issued in the name of Githenya Igeria. A receipt dated 4th March 1986 was issued to the Respondent for Registration Fees.
32. The Respondent also produced a ballot for Plot No.239 in the name of Mbari ya Mute Farmers Company Ltd and a Share Certificate No.1472, in her name, dated 4th March 1986, showing that she held 444 shares of 20= each. The Certificate was signed by the Secretary and Chairman of the Company.
33. The Appellant did not at any time claim that the above documents were not genuine or authentic, and neither did he claim that they did not originate from the Company. The Appellant’s witness, DW3 Julius Mwebia, who claimed to have been a Director of the Company, also did not at any point claim that the above documents were not issued by the Company. Indeed, the said witness stated that "there were 2,500 members, but only 430 acres were available for distribution after removing the public utilities (50 acres). Those who got ballots are the ones who were given land. Those who never got ballots were refunded their share capital.”
34. The above statement was in itself a confirmation that the Respondent got land from the Company since she got a ballot showing the allocation of Plot No.239. The said witness's denial of knowledge of Githenya Igeria or that the Respondent was a Shareholder of the company flies in the face of all the documents produced by the Respondent, which emanated from the Company.
35. The Appellant on his part, produced in evidence documents in support of his ownership of the suit land, a title deed in his name issued on 9th November 2005, Memorandum of Appeal in Nyeri Central Province Appeals Committee Appeal No.7 of 2008, Judgment and Decree in ELCA No.42/2004, Ballot Register for Mbari ya Mute Company Ltd, Share Certificate No.1051 issued by Mbari ya Mute Company Ltd.
36. Looking at the Trial Court Judgment, it is clear that the Magistrate considered the oral and documentary evidence adduced, analysed it and came to the conclusion that:
"The Plaintiff has produced genuine documents, including the Share Certificate and the Receipts proving payment of the Shares, and she was first issued with a Title Deed. However, the Defendant alluded to the fact that his documents got lost, which I find suspicious since the company keeps copies of documents. A former director testified, stating that the Plaintiff was not a member of the company. However, he failed to challenge the authenticity of the Share Certificate produced by the Plaintiff. He admitted that the Defendant's name was inserted after a name appearing on the Register was cancelled."
37. From the foregoing and the entire Judgment, this court is satisfied that the Trial Court considered the oral and documentary evidence adduced by both parties to the suit in arriving at the Judgment and that the evidence adduced by the Respondent was more compelling and persuasive than the evidence adduced by the Appellant. The Court thus finds that the Trial Court did not decide the case against the weight of evidence and thus grounds 1, 3, 7, & 8 of the Memorandum of Appeal fail.
38. On issue No. 2, Grounds 4 & 6 – whether the Trial Magistrate erred by failing to appreciate that the Respondent’s title was acquired through an award that was set aside, the court has looked at the title deed issued to the Respondent on 27th October 2010 and is satisfied that part of the basis upon which it had been issued was challenged successfully and the award of the Land Disputes Tribunal was set aside through the Judgment in Nyeri ELCA 42 of 2014 where Justice L.N. Waithaka stated that –
“Since the dispute preferred before the Tribunal could not be determined without considering and determining the rights of the parties to the suit property, which was registered land, I find and hold that the Tribunal lacked jurisdiction to hear and determine the dispute before it. The upshot of the foregoing is that the appeal herein has merit and is allowed as prayed.”
39. As a result of the above finding of this Court, the title deed issued to the Respondent on the strength of the Tribunal award was left in limbo since the Court did not order its cancellation not to mention that on the strenghth of the decision of the Tribunal, the Appellant’s title had been cancelled to pave way for issuance of a title deed to the Respondent. It is noted that this Court did not order reinstatement of the title issued to the Appellant.
40. In the court’s view, this meant that the Trial Court was left with the responsibility to decide which of the two parties to the suit the legitimate owner of the suit land was.
41. Section 26 of the Land Registration Act and all the authorities cited above confirm the position that it is not sufficient to dangle the instrument of title as proof of ownership when the registered proprietor’s root of title is under challenge. In the circumstances, it was the duty of both parties to the suit to prove the legality of acquisition of their respective titles and show that the acquisition was legal, formal and free from any encumbrances. They both had a duty to prove that they acquired rights and interests in the suit land by following the right procedure. Section 26 (1) states as follows;
The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
42. In the court's view, the Respondent showed, through evidence, that she had acquired every right to be issued with a title deed to the suit land. She showed that her husband was a shareholder of Mbari ya Mute Company Ltd from the time he paid an entry fee on 6th May 1973 until the time of his death. The Respondent showed that she took over the shareholding of the company from her husband and paid registration fees and share capital arrears. She was issued a share certificate on 4th May 1986. She was also issued a ballot for Plot No.239. From the foregoing, it becomes a mystery how her name was missing from the Register of Members issued by the Company and forwarded to the Land Registrar, Nyeri.
43. On the other hand, the Appellant failed to convince the Trial Court and has failed to convince this court that his title deed was acquired procedurally and/or legally. He did not show the court that Waweru Kamau, whom he alleged sold him the land, was even a shareholder of the company. The authenticity of the Share Certificate produced by the Appellant in the name of Waweru Kamau is doubtful as it is undated and unsupported by receipts for the purchase of shares in the company. It is also noted that his name does not appear in the Ballot Register that was produced by DW1. The court also observed a trend on the register produced in evidence that where there was a change in other names on the Register, the original name was visible, but cancellation was made and the new name written, countersigned and stamped beside the change made. It is also noted that the Identity Card Number of the person whose entry was cancelled was also cancelled, and a new Identity Card number was inserted. However, where the Appellant’s name appears on the register, there is no name of the original owner, and there is no signature and stamp that countersigned the change.
44. The court further notes that the Appellant did not produce in evidence a sale agreement, documents of transfer of the land to him and a ballot in his favour. Just like the Trial Court, this court is not convinced by the Appellant’s contention that he lost all his documents. His claim that he could not obtain copies from the Company was also not convincing. Further, he did not obtain an official document to show that he reported to any authority the loss of such important documents, e.g. a police abstract. The Appellant held the onus to show and convince the court of the legality of the process of acquisition of his title, and in the court's view, he failed to do so.
45. The court is persuaded that even though the Respondent’s title was acquired through an award that was set aside by the Judgment in Nyeri ELCA 42 of 2014, she had proved that she was entitled to ownership of the suit land having proved that the process she and her husband had followed was legal and legitimate and she was entitled to be registered as the proprietor of the suit land while the Appellant’s title had been successfully challenged.
46. Based on the above finding of this court on Issue No.2, the court is satisfied that the Trial court did not base its findings and conclusion on ownership of the suit land on the award of the Land Disputes Tribunal. The fact that the said award was set aside did not negate the fact that the Respondent was found to have produced in court genuine documents including receipts, share certificates and ballot of paper to support her ownership of the parcel suit land while the Appellant’s documents and his evidence did not convince the Trial Court that his title was obtained legally or through the lawful process. It is this court’s finding that the Respondent remains the lawful owner of the suit land.
47. On issue No 3: Ground 2 – whether the Learned Magistrate erred in failing to determine all the issues that were before her, including acquiescence, adverse possession, trespass, rectification of title, limitation of actions and inheritance of shares.
48. The Appellant complained that the Trial Court did not determine whether she had been in exclusive, legal, active and uninterrupted occupation and possession of the suit land since 1990. The Court notes that the Appellant’s defence and Counterclaim did not pray for the determination of his rights as a person in adverse possession of the suit land. From the Trial Court judgement, this court finds that the issue of the Appellant's possession of the suit land was considered and determined by the Trial Court and the submission that this was not considered is false. Indeed, the Trial Court even cited the Court of Appeal case of Mtana Lewa v Kahindi Ngala Mwangandi (2005) Eklr on what constitutes adverse possession. The Trial court concluded that the Appellant’s entry on the suit land was without the Respondent’s permission and thus was not adverse.
49. This Court further finds that following the Court of Appeal decision in Sugawara v Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso, alias Mutaragwa Kiruti Lepaso, alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR) Magistrates Courts have no jurisdiction to determine claims of adverse possession.
50. The Appellant did not provide any proof that he was in occupation and/or possession of the suit land in 1990. He did not tell the Trial Court when he purchased the land or show any activities carried out on the land that would constitute possession from the stated year. All he had was the title deed issued on 19th September 2005.
51. The Respondent, on the other hand, testified that when she got the title deed dated 19th April 1994, she was shown the suit land. It was only in October 2007 that she discovered that the land had been cultivated, and upon inquiry, she discovered that the Appellant had entered her land. Upon inquiry, she filed the suit at the Land Disputes Tribunal, and a decision was made on 20th May 2008. The Respondent exhibited the proceedings and findings of the Tribunal Claim No.K/E/LTD/3/2008, and the claim made was –
"I want Mr Macharia to vacate my land, Gakawa/Kahurura Block IV/239, which I bought from Mbari ya Mute, and the title was issued to me in 1994”
52. In the Appellant’s evidence before the Tribunal, he stated that he started developing the land in the year 2003 when he retired from the Army. That he had not seen anyone claiming the land until 17th October 2007, when the Respondent started claiming the land. The evidence of the Appellant clearly shows that his claim before the Trial Court that he had been in possession of the suit land since 1990 contradicted what he said before the Tribunal. The Court is convinced that his evidence was likely false.
53. On the question of Limitation of Actions, this court is of the view that a claim that the Respondent's suit was time-barred was not pleaded and thus did not fall for determination by the Trial Court.
54. As an ancillary issue to the above, the court also finds that the Appellant did not show that he had overriding interests in the suit land capable of protection under Section 28 of the Land Registration Act.
55. On the question of whether the Respondent had the capacity to institute and prosecute the suit, the Appellant argues on the basis that the Plaintiff inherited her share of the company from her deceased husband, and because she did not sue as administrator, she had no capacity to sue. However, the contents of the Plaint clearly show that the reference to the Respondent’s husband’s share in the suit company was only made to give an explanation and history of her acquisition of the land and not to claim on behalf of her husband. Paragraphs 4 and 4(a) of the Plaint clearly show that she was suing in her personal capacity as the registered proprietor of the suit land. In the Court's view, the fact that the Trial Court did not mention the words capacity to sue did not mean that the issue was not considered. The Trial court clearly demonstrated that the Respondent sued as proprietor of the suit land and not on behalf of her husband. The court thus finds that the Respondent had the capacity to sue.
56. On issue Number 4, Ground 9 – whether the Trial Court erred in failing to resolve the Appellant’s counterclaim, the Court agrees with the Appellant that the Trial Court did not address the counterclaim and did not directly make any orders on the counterclaim, and the consequence of that is that it remains unresolved.
57. This court has power under Section 78 of the Civil Procedure Act to evaluate and examine the trial court's record and the evidence presented before it to arrive at its own conclusion. The case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123 cited above stated that this court, as it has done on other issues raised in this appeal, has reconsidered the evidence, evaluated it and concluded that the Appellant’s counterclaim was for dismissal.
58. The Appellant based his counterclaim on the rights and interests accruing to him as the holder of a title deed issued to him and the fact that the Respondent was registered as proprietor of the suit land on the strength of an award of the Land Disputes Tribunal that was challenged before this court and was finally set aside.
59. The Court has made detailed findings on issues 1, 2 and 3, and determined that on the 1st issue, the weight of evidence before the trial court leaned in favour of the Respondent having acquired rights to the suit land. The Court is further satisfied that the Trial court did not base its findings and conclusion on ownership of the suit land on the award of the Land Disputes Tribunal. The fact that the said award was set aside did not negate the fact that the Respondent was found to have produced genuine documents, including receipts, share certificates and ballot paper to support her ownership of the suit land. The Appellant's evidence, on the other hand, did not convince the Trial Court that his title was obtained legally or through the lawful process. This court agrees and confirms its finding that the Respondent remains the lawful owner of the suit land.
60. Arising from the foregoing, the court has no difficulty in finding that the Appellant's counterclaim lacked merit and the Trial Court ought to have determined the issue and dismissed the counterclaim.
61. On issue No.5, the court finds that the Respondent did not acquiesce to the Appellant's presence in the suit land for the reason that, as stated earlier, immediately the Respondent discovered the trespass, she instituted the claim before the Land Disputes Tribunal.
62. This court thus finds that the Trial Court did not err in its final determination of the suit presented before it, save for the failure to determine the Appellant’s counterclaim.
Who will bear the costs of the Appeal?
63. The court is cognizant of the provisions of Section 27 of the Civil Procedure Act, that costs are in the discretion of the court, provided that the costs shall follow the event unless the Judge shall, for good reason, otherwise order. In this case, the court has faulted the Trial Court for not making a specific finding on the counterclaim filed by the Appellant, thus giving rise to this Appeal. In the circumstances, the court finds it fair and just that the parties will bear their own costs of this Appeal.
64. The final order of the Court is as follows;
1. Grounds 1 – 8 and 10 set out in the Memorandum of Appeal dated 17th March, 2020, are found to have no merit, and consequently the Appeal is hereby dismissed.
2. Ground 9 of the Memorandum of Appeal is hereby determined by an order of this court dismissing the Appellant’s counterclaim before the Trial Court.
3. Each party will bear their costs of this appeal, but the Appellant will bear the costs before the trial court as ordered by the Trial Court.
Dated, Signed and Delivered at Nyeri, this 4th day of December 2025
In the Presence of:-
Ms Kendi - Court Assistant
Mr Macharia - for Appellant
Mrs Maina - for Respondent
JudgmentPETERSON MACHARIA MUTHAMI VS ANNAH NYAMBURA GITHENYA24 min read
PETERSON MACHARIA MUTHAMI VS ANNAH NYAMBURA GITHENYA
Environment and Land Court at Nyeri Environment and Land Court · · L.G. KIMANI