https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4345

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELCLA NO. E008 OF 2025** **ANTONINA NDUGU NGARI..................................................APPELLANT** **VERSUS** **ALIKAN NJERU NJAGI........................................................RESPONDENT** **(*Being an appeal from the Judgment of Hon. R. Njoki Kahara (Principal Magistrate) delivered on 29th January 2025 in Siakago PM-ELC Case No. 82 of 2019)*** **JUDGMENT** This is a first appeal arising from the judgment of the Principal Magistrate in Siakago PM-ELC Case No. 82 of 2019. As a first appellate court, this Court is under a duty to re-evaluate, reconsider and analyse the evidence tendered before the trial court and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. That duty was succinctly stated in *Selle & Another v Associated Motor Boat Co. Ltd & Others* [1968] EA 123. The Appellant instituted the suit seeking removal of a restriction/caution lodged by the Respondent against land parcel No. NTHAWA/SIAKAGO/5617. Her case was that she purchased one acre out of the original parcel No. NTHAWA/SIAKAGO/40, that the purchase was recognized during the administration of the estate of the deceased proprietor in Embu High Court Succession Cause No. 626 of 2014, and that following confirmation of grant, the parcel allocated to her became land parcel No. NTHAWA/SIAKAGO/5617. She contended that despite the administrator being ready to transfer the parcel to her, the Respondent lodged a restriction thereby frustrating the transfer without any lawful basis. The Respondent, on the other hand, maintained that although the sale agreement named the Appellant as purchaser, he was the actual financier of the transaction, having paid the entire purchase price while the Appellant was his wife. He asserted that the land beneficially belonged to him and that the caution was intended to protect his interest. Upon considering the evidence, the learned trial magistrate declined to order removal of the restriction immediately but directed the Respondent to institute a suit within one hundred and twenty (120) days to determine ownership of the land, failing which the Land Registrar would remove the restriction. Having carefully reconsidered the entire record, the Court is of the respectful view that the learned trial magistrate fell into error both in law and in fact. The starting point is that the suit before the subordinate court was neither a claim for declaration of ownership nor a dispute over matrimonial property. It was a straightforward suit seeking removal of a restriction lodged under the Land Registration Act. Consequently, the court was required to determine whether, on the evidence presented, the Respondent had established a legally recognizable interest sufficient to justify maintenance of the restriction. The evidence before the trial court established that the sale agreement dated 21st March 2015 identified the Appellant as the purchaser. Although the Respondent signed the agreement, he did so merely as a witness. No clause in the agreement reserved any beneficial interest in his favour or indicated that he was purchasing through a nominee. Indeed, both the documentary evidence and the testimony of DW2 confirmed that the transaction was concluded in the Appellant's name and that upon confirmation of grant she became entitled to receive one acre from the estate. Equally significant is the evidence of DW2, the administrator of the estate. He confirmed that the confirmed grant allocated the disputed portion to the Appellant and that the only impediment to registration was the restriction lodged by the Respondent. There was no evidence that the confirmation of grant had ever been revoked, reviewed or successfully challenged before the succession court. Under Sections 79 and 82 of the Law of Succession Act, the administrator was legally entitled to complete transmission in accordance with the confirmed grant. Until that grant is set aside by a competent court, its provisions remain binding. The Respondent's defence was essentially founded upon the assertion that he paid the purchase price. Even assuming that to be true, payment of the purchase price alone could not confer legal ownership where the contractual purchaser was another person and no trust, resulting trust or constructive trust had been pleaded or proved. Kenyan civil litigation is adversarial. Parties are bound by their pleadings and a court cannot determine issues which have neither been pleaded nor properly placed before it for adjudication. The Respondent filed no counterclaim seeking declaration of ownership, beneficial interest or cancellation of the Appellant's entitlement under the confirmed grant. The burden of proving the alleged beneficial ownership rested upon the Respondent. Sections 107, 109 and 112 of the Evidence Act place the burden upon the party asserting a particular fact. Apart from his own testimony that he financed the purchase because he was working in South Sudan, no documentary evidence was produced demonstrating that the Appellant was merely holding the property in trust for him. Equally, no evidence was tendered to challenge the validity of the sale agreement or the succession proceedings through which the Appellant acquired her entitlement. The learned trial magistrate appears to have been persuaded by the Respondent's occupation and developments on the land. Occupation, however, does not by itself establish ownership. It is merely one factual circumstance which may support an otherwise legally cognizable claim. Without a pleaded and proved legal interest, occupation alone could not justify continued encumbrance of another person's entitlement under a confirmed grant. The Land Registration Act permits registration of cautions and restrictions only where a person demonstrates a claim or interest capable of protection. Sections 71 and 73 of the Act contemplate the existence of an identifiable legal or equitable interest. The Respondent's assertions remained unadjudicated allegations unsupported by any declaratory relief sought before the trial court. Consequently, the evidential threshold necessary to justify maintenance of the restriction was not met. This Court also finds that the learned magistrate exceeded the issues placed before the court by directing the Respondent to institute a fresh suit within one hundred and twenty days. Courts determine disputes brought before them; they do not direct litigants to commence future proceedings. Since no counterclaim had been filed and no prayer seeking declaration of ownership was before the trial court, there existed no legal basis upon which the court could reserve to the Respondent an opportunity to litigate afresh while simultaneously preserving the restriction. Such an order effectively granted relief not sought by either party and offended the settled principle that a court should confine itself to the pleadings and issues presented by the parties. The Respondent argued that a subsequent suit would otherwise be rendered res judicata. While that question may arise should such proceedings ever be instituted, it was not an issue requiring determination in the suit before the subordinate court. The trial court's duty was confined to deciding the pleaded dispute on the evidence presented. Having independently evaluated the evidence, this Court is satisfied that the Appellant established on a balance of probabilities that her entitlement to land parcel No. NTHAWA/SIAKAGO/5617 emanated from a valid sale transaction and a confirmed grant which has never been impugned. Conversely, the Respondent failed to establish any legally enforceable proprietary interest capable of sustaining the restriction lodged against the suit property. Accordingly, the appeal succeeds and the judgment of the trial court is hereby set aside. In its place, this Court enters judgment for the Appellant and makes the following orders: 1. A declaration is hereby issued that the Respondent failed to establish any lawful proprietary interest capable of sustaining the Caution and or restriction lodged against land parcel No. NTHAWA/SIAKAGO/5617. 2. An order is hereby issued directing the Land Registrar, Mbeere, to forthwith remove the restriction and/or caution registered against land parcel No. NTHAWA/SIAKAGO/5617 at the instance of the Respondent. 3. The administrator of the estate shall thereafter be at liberty to complete transmission and transfer of the suit property in accordance with the Certificate of Confirmation of Grant issued in Embu High Court Succession Cause No. 626 of 2014 and the applicable law. 4. The Appellant shall have the costs of the suit before the subordinate court and the costs of this appeal together with interest thereon at court rates. It is so ordered. **DATED, DELIVERED AND SIGNED AT EMBU THIS 09TH DAY OF JULY, 2026** …………………………………………. **HON. E.C.CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. M/S Kimathi H/B for Mr. Okwaro for the Appellant 2. Mr. Joe Kathungu for the Respondent 3. Ruth – Court Assistant