https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4116

Maguta v Wainaina (Environment and Land Appeal E035 of 2024) [2026] KEELC 4116 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELC 4116 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Environment and Land Appeal E035 of 2024 MN Gicheru, J June 30, 2026 Between Agnes Wangari Maguta Applicant and Mariko Mwangi Wainaina Respondent (Being an appeal from the judgment of Hon. Joan Irura –SPM at Kigumo Law Courts delivered on 25th July, 2024 in ELC No. E017 of 2024.) Judgment 1.The Appellant seeks the following orders in her appeal dated 3-8-2024.a.Her appeal be allowed.b.The judgment in favour of the Respondent be set aside.c.The Court be pleased to rehear the case filed by the Respondent.d.In the alternative to No. 3 above, the Court be pleased to declare the suit land belongs to the Defendant’s father and that the Defendant is free to bury the remains of her late brother Daniel Waweru Riano in the suit land.e.The costs of the Appeal be awarded to the Appellant. 2.The Appellant has framed forty five (45) grounds of appeal.The learned trial magistrate erred in law and in fact in-1.Dismissing the Appellant preliminary objection while the said objection was based on pure points of law.2.Failing to appreciate the urgency of the matter as it involved stoppage of the Appellant’s brother in land parcel No. Loc.18/Gachocho/415 claiming that he had an interest in the land.3.Not finding that the Respondent’s suit, being a claim on land was time barred having been filed over 12 years since the alleged judgment issued in favour of his deceased mother in 1979, alleged subdivision of the land in 1997 pursuant to a judgment issued in favour of a cousin of Zephania Waweru Mwangi and alleged grant of letters of administration obtained in Succession Cause No. 12 of 2005 which he did not produce in Court.4.Finding that the suit was filed in the wrong court instead of a Probate and Administration Court.5.Not finding as stated in the preliminary objection that the Court sitting as an ELC Court and not a Succession Court had no jurisdiction to hear the suit as the Plaintiff was claiming ownership of land from the estate of his deceased mother and without jurisdiction, the Court had no alternative but to down its tools.6.Not finding that the Respondent had no capacity to file the suit since he was not an administrator of the estate of his deceased mother and had no letters of administration to her estate. Neither had he obtained authority from his other siblings to file the suit on their behalf.7.Finding that the Respondent had locus standi to bring the suit without producing any evidence of grant of letters of administration and accepting the Respondent’s claim that he was the administrator of the estate of his mother, Phyllis Wanjiru Wainaina is Succession Cause No 12 of 2005 and was issued with letters of administration in 2006 without producing evidence in Court.8.Failing to note that the Respondent’s claim for an interest in the estate of his deceased mother lay in the law of succession and not in the ELC.9.Equating capacity to file suit with the right to be heard.10.Expunging the Appellant’s counterclaim from the Court record for allegedly being filed without the court’s leave while it is the court itself when delivering the ruling on the Defendant’s preliminary objection on 16th May 2024 which directed both parties to comply fully with the provisions of Order 11 of the Civil Procedure Rules by filing all the documents and pleadings they intended to rely on within seven (7) days by the date of the pretrial conference due to the expeditious nature of this case… and a hearing date to be set upon full compliance.11.Not considering that the pretrial conference held on 27-5-2024 when the hearing date was set, the Appellant had fully complied and filed the counterclaim as per the Court’s direction and no issue was raised either by the court or by the Respondent’s advocate over the Appellant’s counterclaim having been filed and served without leave of the Court while counterclaim was on record before the pretrial date.12.For failing to find that the Respondent had waived his right to take issue with the counterclaim already on record having failed to do so during the pretrial conference on 26-6-2024 when the hearing date was set.13.By applying double standards and applying administration of justice selectively for admitting the Respondents further affidavit in objection to the Appellant’s preliminary objection filed together with submissions in response to one of the Appellant’s ground that the Respondent had no capacity to file the suit yet the Respondent, nevertheless, never produced proof of having been made administrator to the estate of his mother in 2005.14.Not directing her mind to the Appellant’s preliminary objection dated 26-4-2024 (date set for the burial)but instead dealt with extraneous issues not before her hence arriving at the wrong decision which caused miscarriage of justice resulting in unnecessary delay in expediting a dispute of such nature as burial, unnecessary expenses, mental anguish and psychological trauma to the Appellant and the wife and children of the Appellant’s deceased brother.15.By granting injunctive reliefs to the Respondent whose interest did not lay any legal threshold for granting such relief.16.By failing to utilize the overriding objectives of the Court as captured in Sections 1A and 1B of the Civil Procedure Act and Article 159(2) of the Constitution of Kenya 2010 and allow the case to be decided on its merits, and in particular failed to consider the Appellant’s counter claim which was on record thus sending the Appellant from the seat of justice, fair administration of justice and the law.17.Failing to order the Respondent to pay the mortuary charges for the preservation of the body of the deceased since it was orders issued in the Respondent’s favour exparte that caused the body to be preserved and detained in the mortuary since the Appellant had made elaborate plans to bury the body on 26-4-2024.18.Finding that the Appellant was a trespasser on L.R. No. Loc.18/Gachocho/415 (Subdivisions Loc.18/Gachocho/415/4225 and Loc.18/Gachocho/4224 which was initially registered in her father’s name and which she and her late brother Daniel Waweru Riano, whose burial has been frustrated by the Respondent has been lying at Kenyatta University Mortuary since 19th April 2024, have always called home and lived on the land since their childhood and whose original title deed the Appellant produced in Court.19.Agreeing with the Respondent’s Claim that the Appellant had “without any unlawful cause prevented him from exercising or curving out his entitlement during their mother’s Phyllis Wanjiru Wainaina’s lifetime as she had been a successful party in Muranga Civil Appeal No. 21 of 1976.20.Stating that the Respondent was not seeking to enforce the time barred Judgment of 1976 while the Respondent himself pegged his case on the said Judgment.21.Relying on the only part of the Judgement of 1976 favourable because the same Judgment indicated that the Respondent’s mother Phyllis was to hold title “subject to any overriding interests not registered in the title” and failed to take judicial notice that the overriding rights included customary trust rights.22.For swallowing the respondent’s distortion of facts that the Respondent prevented him from exercising his entitlement from the suit land because the appellant was only 15 years old and a minor in 1976 and under the care of her parents having been born in 1961.23.Basing Judgment on the said appeal and at the same time stating that the Respondent was in the instant case not seeking to enforce the judgment since no such Judgement could be enforced after the expiry of 12 years since it was issued.24.Not appreciating that the suit land was one of the three parcels of land initially owned by the Appellant’s grandfather but first registered in the names of the Respondent’s father to hold in trust of his siblings who included the Appellant’s father.25.Accepting a claim that the father of the Respondent had bought the suit land and others registered in his name without prove of purchase of the land.26.When, from whom and for being rdmi (Sic).27.The suit land was registered in the name of the Appellant’s father in 1975 and the Defendant and her deceased brother the subject of the burial dispute, still hold the original title which she produced in Court as the same has never been cancelled or recalled by the Land Registrar.28.Not considering the decision of clan elders captured in the minutes of a meeting held on 3-3-1995 which directed the respondent’s mother to give 3 acres of land to the appellant’s cousin Zephania Waweru Mwangi from her estate which she held in trust and stated that the remaining land belonged to the respondent’s father and the Appellant’s father.29.Failing to appreciate that the Appellant and her late father who died in the year 2015 and her now deceased brother (whose body is still in the mortuary) were not party to Murang’a SRMCC Case No. 218 of 1995 which allegedly led to the subdivision of the appellants land Loc.18/Gachocho/415 whose original title the Defendant produced in Court during the trial.30.No noting that the clan elders’ decision confirmed that the said land was part of family land to be shared by three brothers of the Respondent’s father one of whom was the Appellant’s father.31.Failing to consider in her judgment the findings of Lady Justice Kemei in Murang’a ELC case No. 2 of 2021 that the transfer and registration of the original suit land to the name of Phyllis and the subsequent subdivision were irregular.32.Failing to appreciate that the learned judge had noted that there was no evidence of the owners of the subdivisions and that the succession shown on the green card could not have been that of the Appellant’s father since he was still alive since he died in 2015.33.Holding that the resultant subdivisions of the suit land belonged to the Respondent’s mother and one Thiong’o Chege without being shown a copy of the original title deed for Loc.18/Gachocho/415 in the name of the Respondent’s mother Phyllis and copies of original title deeds for the subsequent subdivisions into Loc.18/Gachocho/4224 and 4225.34.Believing that one of the alleged subdivisions belonged to one Thiong’o Chege who was not a party to the suit and the other to the Respondent’s mother yet the Respondent stated in his evidence he was not aware of any subdivisions or when such subdivision was done.35.Upholding the oral evidence of the respondent that they had filed the succession cause for his mother while the evidence was contradicted by the respondent’s witness, his elder sister Elispher Wangari Njogu and Grace Wairimu Njogu who in their oral and written statements stated they were not aware of any succession cause filed for their mother.36.Failing to consider that the evidence of the Respondent was contradicting and unreliable by instance stating that he could not tell if the 1976 case he had referred to was determined, that he had a relationship with the Appellant and at the same time stating that the Appellant was the daughter of his uncle and brother to his father.37.Stating that the Appellant had not produced the “OB number and the Court records” to prove that her parents were illegally and violently evicted by the Respondent and his siblings while both the Respondent and his witness Elispher Wangari admitted that their elder brother Gerald Waweru was jailed for nine months in 1987 for physically attacking and assaulting the Appellant’s parents.38.Accepting the argument that since the Appellant’s parents were buried in Langata Cemetery in the years 2011 and 2015 respectively, the body of the deceased should not be buried on the suit land.39.Not appreciating that the Appellant’s evidence that the suit land was one of the three parcels of land which belonged to her grandfather Waweru Ndogo but registered in the name of the eldest brother Wainaina Ndogo, the Respondent’s father to hold in trust for his two siblings, Samuel Riano and Nimrod Mwangi who died during the struggle for Kenya’s Independence.40.Failing to consider the Appellant’s evidence that she was born and brought up in the suit land where she has a home and takes care of her late parent’s tea and that she is a beneficial owner of the suit land through customary trust, equally and legally as the administrator of her father’s estate.41.By disregarding the original title deed produced by the Appellant in Court issued to her father in the year 1975 despite the title not having been recalled or cancelled by the issuing authorities.42.For declining to acknowledge that the Defendant and her late brother are the co-administrators of the estate of her father despite producing both letters of administration and certificate of confirmation.43.Ignoring the evidence of the area Senior assistant chief, one Patrick Macharia who said he knew the family of the Appellant since his childhood their occupation of the suit land and the violent eviction by the Respondent and his siblings.44.Failing to take judicial notice of the miscarriage of justice since the Respondent was unable to give evidence due to his senility.45.Not considering that the Respondent stated that it was not his decision to file the suit but that he was told by some people who he did not disclose. 3.The facts of the case according to the Appellant are as follows. Firstly, she is the third child of Samuel Riano Mwangi and Edith Wanjiru Riano who died on 27-6-2015 and 15-11-2025 respectively. The Respondent is her first cousin being a son of her father’s eldest brother Wainaina Ndogo who died in the year 1968. Her grandmother Wangari died in the year 1969. Her father had two brothers Wainaina Ndogo and Nimrod Waweru. Her grandfather, Ndogo Waweru owned three (3) parcels of land. There were Loc.18/Gachocho/415 and 1440 as well as Loc.2/Gacharage63(in Kianyeki). Since Wainaina Ndogo was the eldest son, he was registered as the owner of the three parcels of land to hold in trust for his younger brothers Nimrod Waweru and Samuel Riano. This was the practice during the initial land adjudication exercise in the 1960s. Secondly, Wainaina Ndogo had his home on the suit land but his children including the respondent constructed their homes on L.R. No. Loc.2/Gacharage/63. The suit land was allocated to the appellant’s father by Wainaina Ndogo and the clan. The Appellant’s family occupied the suit land and the appellant’s father was issued with the title deed thereto in the year 1975. The family of the Appellant had planted tea on the land in the year 1971 and they got grower’s number 27025. Thirdly, Zephania Mwangi son of Nimrod Waweru filed Murang’a MCCC No. 218 of 1995 against the Respondent’s mother Phyllis Wanjiru Wainaina for a share of the estate of Ndogo Waweru. Samuel Riano was not a party to this suit and Zephania Mwangi did not disclose to the Court that the Appellant’s father had already been issued with a title deed for the suit land. The Court directed that Phyllis Wanjiru Wainaina should transfer three (3) acres to Zephania Mwangi. These 3 acres ought to have been exercised from L.R No. Loc.2/Gacharage/63 but not from the suit land. All the Respondent’s family members including his mother Phyllis, his brothers Gerald, Macharia and Muiruri are buried on L.R No. Loc.2/Gacharage/63 while the youngest brother Stephen Kimemia was on 7-4-2011 buried on L.R. Loc.18/Gachocho/1440. It is only Wainaina Ndogo and the grandmother of the parties who are buried on the suit land. Fourthly, even though the Appellant’s parents kept away from the suit land after the Respondent and his family members became hostile to them, they remained in possession since their tea is growing thereon. They manage the tea and the land generally where they have homes. The parents of the Appellant and her younger brother Simon Mwangi Riano were buried at Langata Cemetery to avoid igniting the hostility shown to them in 1987. There is no reason why the remains of the Appellant’s brother should not be buried on the suit land. Fifthly, in the year of 2015 and 2016, the Respondent’s brother visited the office of Patrick Macharia who was the chief of Gacharage Location and informed the chief that he wished to return the tea bushes to the family of the Appellant. The chief contacted the appellant and the suit land was handed over to the Appellant who has been in occupation ever since. The Respondent and his family have a much bigger parcel of land at Kianyeki where they live. Finally, the appellant and the extended family of the father have suffered financially, mentally and continue to suffer more anguish following the order that restrained them from burying the deceased Daniel Waweru Riano on the suit land for no good reason. 4.The facts of the case according to the Respondent are as follows. One, the Appellant is a trespasser on the suit land which was Loc.18/Gachocho/415 now subdivided into parcels numbers Loc.18/Gachocho/4224 and 4225. She intends to bury the remains of her brother Waweru Riano on the suit land. Two, the rightful heirs of the registered owner of the land Phyllis Wanjiru Wainaina alias Wanjiru Ndogo are her children who include Gerald Waweru, Elispha Wangari, Obadiah Macharia, Mariko Mwangi, Esther Wambui, Joseph Muiruri and Stephen Kimemia. Three, the Respondents father owned the following parcels.a.Loc.2/Gacharage/63 (Kianyeki) registered in the name of Ndogo Waweru alias Wainaina Mwangi.b.Loc.18/Gachocho/415 (GaKumburu) registered in the name of Ndogo Waweru alias Wainaina Mwangi.c.Loc.18/Gachocho/1440(Gakumburu) registered under Wanjiru Ndogo alias Phyllis Wanjiru Wainaina since during demarcation, one could not register more than one land at the same scheme.Four, their late father died in the year 1968 and left his wife and children on the suit land where he is buried. Five, the suit land is now registered in the name of their late mother. The Appellant and her family were evicted from the suit land vide a court order issued at the High Court of Kenya at Murang’a. Finally, the father of the Respondent did not have any land to pass to or to sell to the Appellant or her family. 5.In her judgment dated 25-7-2024 the learned trial Magistrate found in favour of the Respondent for the following reasons. Firstly, though the Appellant implied that there was a trust, the Appellant did not plead any such trust and parties are bound by their pleadings. Secondly, the issue of the Appellant having the original title deed when the suit land register had been closed on subdivision. Thirdly, the learned trial Magistrate held that the resultant parcels numbers Loc.18/Gachocho/4224 and 4225 were not held in trust for the Appellant because they belonged to their rightful owners Thiongo Chege and Phyllis Wanjiru. She therefore found that the deceased could not be buried on the suit land, the Appellant be evicted from the said land and the costs of the suit and interest be awarded to the Respondent. 6.Counsel for the parties did not file any written submissions.I have carefully considered the appeal in its entirety especially the record. I find that the following issues arise.i.Whether the preliminary objection should have been allowed.ii.Whether it was fair to expunge the Appellant’s defence and counterclaim.iii.Whether the trial Magistrate had sufficient evidence to enter a finding that the register for the suit parcel had been procedurally closed on subdivision.iv.Whether the trial Magistrate was justified in finding first that the issue of trust had not been pleaded and then finding that the suit parcel and the resultant subdivisions were not held in trust for the Appellant and her family. 7.Regarding the preliminary objection raised by the Appellant, I find that the learned trial magistrate was justified in dismissing it. The preliminary objection was based on contested facts such as whether the Respondent was the legal representative of the estate of Phyllis Wanjiru Wainaina, whether the suit was time barred and whether the suit was a land or succession case. All these were disputed facts calling for proof by way of evidence at the trial. As it was held in the case of Oraro Vs Mbaya [2005] eKLR a preliminary objection must not be blurred with factual details liable to be contested and, in any event to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not a true preliminary objection.Similarly in this case, since all the above-mentioned facts were contested, the Appellant was not justified in raising the preliminary objection as it was not on a pure point of law. 8.It is my finding that it was not fair or just to expunge the Appellant’s defence and Counterclaim from the record. What was at stake was ancestral land where the appellant sought to bury her deceased brother and from where she was eventually ordered to be evicted. Knowing of the very harsh consequences that the Appellant was faced with and which eventually came to be, it was draconian for the trial Court to strike out the Appellant’s pleadings. In the case of D.T Dobie and Company (Kenya) Ltd Vs. Joseph Mbaria Muchina and another. Madan JA stated:“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment”.In this case the Appellant’s counterclaim was a suit in which she sought a declaration that the suit land belonged to her father. She also sought orders for the rectification of the register among other prayers. From the record it would seem that the Appellant had complied with the directions dated 16-5-2024 which required the parties to close their pleadings before 27-5-2024. When the case came up for mention, the Appellant’s counsel is on record as saying the following.“We have filed extra documents pursuant to order 11 which I have duly served via email”.This was the point at which the objection should have been raised. The counterclaim had been filed within the period given for complying with order 11 of the Civil Procedure Rules. Even if it had been filed outside this period it was within the discretion of the Court to extend time in order to give the Appellant a fair hearing as required by Article 50(1) of the Constitution. After the Respondent got the order to stay the burial on the suit land, the urgency to hear the suit seems to have ended and he resulted to asking for time to comply yet he should have complied before he filed the suit. The Appellant was not at fault at all and she was denied a fair hearing of her counterclaim by the expunging of her counterclaim. 9.Regarding the third issue, I find that the trial magistrate did not have sufficient evidence to enter a finding that the register for the suit land had been closed procedurally. No evidence was adduced of how the suit land was subdivided. No witness came to testify and for cross examination. No land registrar, no surveyor and records were ever filed by the Respondent. Without any tangible evidence it was not proper for the learned trial magistrate to find as she did that title deed for the suit land was closed for subdivision in the year 1999, without any explanation by the Respondent on oath as to how this happened. It was especially necessary for the Court to interrogate this question considering that the appellant still retains the original title deed for the suit land which ought to have been surrendered at the time of closing of the register. 10.On the final issue, I find that the learned trial magistrate was inconsistent on the issue of the pleading on the trust and the finding that the resultant subdivisions of the suit land were not held in trust for the Appellant and her family by the registered owners. At page 13, the second line from the bottom of the Judgement dated 25/7/2024, the learned magistrate stated:-“Although they implied in the suit their claim was based on customary trust, parties are bound by their pleadings and in that case, they had pleaded fraud and illegalities on the part of Phyllis … with the above, it is evident that their claim herein also automatically fails despite the defendant being in possession of an alleged original title deed for land parcel No. Loc.18/Gachocho/415…”At paragraph 3 on page 14 of the same Judgment the learned magistrate said:“The resultant parcels being Loc.18/Gachocho/4224 and 4225 were therefore not being held in trust for her and the deceased but they belonged to the registered owners being Thiongo Chege and Phyllis Wanjiru and/or her legal representatives exclusively …”In the plaint dated 24-4-2024, there is no mention of a trust. Similarly, in the defendant’s response dated 26-4-2024 there is no mention of trust. It is not clear how the learned trial magistrate made such a fundamental finding without any party pleading it and no evidence being adduced. The Court was bound by the pleadings filed by the parties. 9.In conclusion and for the reasons given in paragraphs (8), (9) and (10) above, I find merit in the appeal dated 3-8-2024 and I allow it in the following terms.a.The Appellant’s appeal is allowed.b.The judgement of Lower Court dated 25-7-2024 is hereby set aside.c.The case to be re-heard by a different magistrate at Kigumo Law Courts.d.Parties to be allowed to plead on the counterclaim and against it as per the provisions of the Civil Procedure Rules.e.The Appellant to remain in occupation of the suit land until the Lower Court suit is heard and determined.f.The costs of the Lower Court suit and those of this appeal to be borne by the Respondent. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 30TH DAY OF JUNE, 2026.M.N. GICHERU JUDGE.Delivered online in the presence of; -Court Assistant– AntonyAppellant’s Counsel – Mr. KimemiaRespondent’s Counsel – Mr. T.M. Njoroge