Nduati v Kionga (Environment and Land Appeal E007 of 2025) [2026] KEELC 4851 (KLR) (28 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCA NO E007 OF 2025** **BETH WANJIKU NDUATI……………………….............................................APPELLANT** **VERSUS** **DUNCAN KIONGA.............................................................................................RESPONDENT** ***(Being an Appeal from the Judgment of the Magistrate’s Court at Kenol (Hon. Dr. Sheilla Nyaga-SRM) dated 17th day of February, 2025 in MCECL No. E018 of 2023).*** **JUDGMENT** 1. In the Memorandum of appeal dated 20-2-2025, the Appellants seek the following orders. 2. **This appeal be allowed with costs.** 3. **The Judgment of the trial court dismissing the Plaintiffs’ suit be set aside and be substituted with an order of this court allowing it.** 4. **The costs of this appeal and of the lower court be borne by the Respondent.** 5. **Such further or other relief that this court may deem fit and just in the circumstances.** 6. The facts of the case according to the Appellant are as follows. Firstly, she is the adminsitratix of the estates of Naftali Nduati Mwangi and Philisila Wambui Macharia who are both deceased. Naftali Nduati was her husband and Philisila was her mother. The two deceased persons were members of Pundamilia Farmers’ Cooperative Society. Naftali was bearer of share certificate No. 1941 while Philisila had share certificate No. 1958. When Pundamilia stopped growing coffee on their land at Mogera estate, the shareholders were allocated land which had been subdivided for allocation to members. At the balloting, Naftali was issued with Plot No. 1975 and Philisila with ballot No. 1976. To get the title number, one would add the figure of 3500 to the ballot number. For Naftali ballot number 1975 added 3500 came to title No. 5475. For Priscilla ballot number 1975 plus 3500 came to title number 5476. The two members were officially allocated L.R. Nos. Makuyu/Makuyu/ Block 1/5475 and 5476 respectively. 1. Secondly, the Defendant who is not a bonafide member of Pundamilia Mogera estate holds title deeds for the land parcels lawfully allocated to Naftali and Philisila. This is affirmed by the decision of the High Court in Civil Appeal No. 24 of 2012. 2. Thirdly, the Respondent has never been in possession of the suit parcels and it was always the deceased in occupation of the same. 3. Fourthly, when the deceased learnt of the fraudulent registration of the Respondent as the owner of the suit parcels, they cautioned the suit parcels and their cautions were unlawfully lifted. The original owners of the land Pundamilia Farmers’ Cooperative Society Limited recognize the deceased as their genuine members and shareholders and the lawful owners of the suit parcels. No such recognition is accorded to the Respondent. 4. Fifthly, the deceased had filed Murang’a ELC Case No. 105 of 2017 which was withdrawn by consent on 20-3-2018. The reason for withdrawing the case was that the court did not allow the deceased to call the Chairman of Pundamilia Farmers Co-operative Society Ltd to testify in Court on the hearing date because he had not recorded a witness statement in good time. Fearing that the case could be dismissed, their advocate decided to withdraw it so that they could file another case in future. 5. The facts of the case according to the Respondent are as follows. One, he is the registered owner of the suit parcels Makuyu/Makuyu/Block 1/5475 and 5476 respectively. Two, he joined Pundamilia Cooperative Society in the year 1983 and he was issued with share certificate No. 1663. He paid Kshs. 5000/= for each of the two parcels and he was issued with receipts. He followed due process in acquiring the suit parcels and that is why he was issued with the title deeds for the said parcels. Two, in ELC Case No. 105 of 2017, the ownership of the suit land was decided after the Appellant’s late husband withdrew the case as per the consent order dated 20-3-2018. On 28-6-2021, an application by the Appellant to review the decision to withdraw the suit was dismissed by the Court. Three, the Appellant’s husband was unable to prove adverse possession in Case No. 105 of 2017 at Murang’a ELC. 6. In her Judgment dated 17-2-2025, the learned magistrate found that the suit was res judicata because the issue in this suit was directly and substantially in issue in Murang’a ELC Case No. 105 of 2017 and the issue was heard and finally determined vide the consent and the ruling dated 28-6-2021. She proceeded to dismiss the Appellant’s suit with costs. 7. Counsel for the parties filed written submissions dated 7-6-2026 and 8-6-2026 respectively. Unfortunately none of the learned Counsel for the parties framed any issues for determination though both of them submitted on the issue of res judicata which was the single issue that the trial magistrate relied upon in making her decision. 8. This being a first appeal, I have a duty to reconsider, re-evaluate and analyse the entire record and draw my own independent conclusions but bearing in mind that I neither saw, nor heard the witnesses testify and give allowance for the trial Court’s advantage in observing the credibility of the witnesses. **See Selle and Another vs. Associated Motor Boat Co. Ltd.[1968]EA, 12**. So as to leave no stone unturned, I will treat the entire record as my point of reference in framing the issues. I do so under **Order 15 rule 2 of the Civil Procedure Rules** which provides as follows. **2. “ The Court may frame the issues from all or any of the following materials-** **(a) allegations made on oath by the parties, or by any persons present on their behalf or made by the advocates of such parties;** **(b) allegations made in the pleadings or in answers to interrogatories or in answers to interrogatories delivered in the suit;** **(c ) the contents of documents produced by either party.”** 1. In his written submissions before the lower court and which are dated 24-1-2025, the Respondent’s Counsel had identified six issues. The Appellant’s counsel’s written submissions dated 22-1-2025 did not identify any issues. The issues identified by the Respondent’s Counsel are as follows. 1. **Whether the Plaintiff was a member of Pundamilia Farmers Co-operative Society Limited. If so, was her late husband issued with share certificate and receipt of payment of twenty thousand five hundred by Pundamilia Farmers Cooperative Society as prove of membership (sic).** 2. **Whether the Plaintiff paid five thousand for each plot being payment of subdivision Mogera and issued receipt thereof by Pundamilia Farmers Cooperative Society Ltd.** 3. **Whether there was fraud, if so, was it proved by the Plaintiff.** 4. **Whether land parcels Makuyu/Makuyu/5475 and 5476 is the same filed by R.M. Njiraini on behalf of the Plaintiff’s late husband by way of originating summons, if so what was the final order of the High Court Judge J.G. Kemei (sic).** 5. **Whether the same subject matter involving the same parties dealt at the superior court can be filed at with the magistrates Court as over rule what has already substantially and conclusively determined by the High Court (sic).** 6. **Whether the Plaintiff is entitled to the orders sought.** I find that these issues identified by the Respondent’s counsel will indeed determine the dispute. 1. On the first issue, I find overwhelming evidence to prove that the Appellant’s husband, Naftali and her mother Philisila were members of Pundamilia Farmers Cooperative Society and the Respondent was not a member for the following reasons. Firstly, there is the judgment in Murang’a SPMC Case No. 488 of 2006. In that Judgment it was held that the subdivision ended in the year 1995 and not in 1988 as claimed by the Respondent. The court also found that his acquisition of title deeds to the plots in that case raised more questions than answers. Secondly, the above decision is confirmed by Civil Appeal No. 24 of 2012 of Murang’a High Court. The Judgment said in part of paragraph 17 **“ Upon my own evaluation of the evidence placed before the trial court, it is clear that the Plaintiff (Duncan Kionga) cannot have used genuine documents to obtain title to the two suit parcels. The process by which he obtained title was clearly not sourced at Pundamilia and was not lawful. The documents he presented to the land registry in order to obtain title cannot have been genuine and must have been fraudulent or otherwise illegally obtained. He therefore cannot have acquired good title to the two parcels of title even of a first registration”.** Thirdly, there is evidence to show that both Naftali and Philisila paid Kshs. 5000/= and Kshs.1200/- each to Pundamilia on 26-11-1994 and a further Kshs. 1400/= on 17-12-1999. This was confirmed by the evidence of Nelson Ndung’u Wainaina in his testimony before the trial Court on 22-11-2024 when he said that it is the deceased and not the Respondent who were the lawful allottees of the suit parcels. Fourthly, the proceedings and judgment in Makuyu Land Disputes Tribunal Case No. 125 of 2006 dated 27-3-2007 found that Naftali Nduati and his mother in law were the lawful owners of the suit parcels and the Defendant(Duncan Kionga) became the registered owner at the lands office. He was summoned by the tribunal several times but he refused to attend. A copy of summons dated 3-10-2006 requiring his attendance on 24-10-2006 is also on record. Finally, also on record is a letter by the Chairman of Punda Milia dated 30-5-2006 confirming both Priscilla Wambui and Naftali Nduati as the owners of the suit parcels. The letter explains that the fraud bringing in the Respondent as the owner of the suit parcels was perpetrated by Kibue Kiori and his committee. This finding covers the second issue. 1. Looking at the third issue, I find that the Appellant pleaded six(6) particulars of fraud in the plaint dated 26-7-2023 and all these particulars have been proved by the five reasons that I have given in Paragraph [12] of this judgment. It is also my finding that this fraud on the part of the Respondent was proved to the standard in the case of **Ndolo vs. Ndolo Civil Appeal No. 128 of 1995** where the Court of Appeal set the standard at above margin of probabilities but below proof beyond reasonable doubt as in Criminal cases. The Respondent’s fraud was proved in Court, at the Land Disputes Tribunal and also at Pundamilia. The evidence of fraud on his part is overwhelming and it seems to have been widespread extending to plot numbers Makuyu/Makuyu/Block 1/5502 and 5503 as per the judgments in case numbers Murang’a SPMCC 488 of 2006 and Murang’a HCCC No. 24 of 2012. 2. My finding on the fourth issue is that the suit parcels were indeed the subject matter of Kerugoya ELC Case No. 207/2016 which became Murang’a ELC Case No. 105 of 2017. The final order in that case is the one dated 28-6-2021. The last paragraph of the ruling reads- **“ The application is bereft of merit and the same is dismissed with costs in favour of the Respondent.”** The Application that was dismissed had sought to revive the suit by setting aside the consent record on 20-3-2018. The consent itself said that the suit be marked as withdrawn. The suit had sought orders that both Priscilla Wambui Macharia and Naftali Nduati Mwangi be declared absolute owners of the suit parcels through the doctrine of adverse possession on the ground that they were in occupation of the suit parcels. The final order was therefore that the suit by the two deceased claiming the suit parcels remained withdrawn by consent. The court did not issue any order, ruling or judgment dismissing the suit. There is no decision at all in that case. 1. In answer to the fifth question, I find that the same case could be filed afresh in the magistrates court because the ELC Murang’a did not make any determination on merit. The trial magistrate erred by finding that the suit was res judicata, there being no decision of the ELC on the issue of adverse possession or any other final issue except the one of whether to reinstate the suit or not. 1. Before I decide on the final issue, it is beyond doubt that the Plaintiff is in occupation of the suit parcels as can be seen at page 373 of the record of appeal when she states as follows. **“ …I live in 5475 and 5476…”** This is the reason why in the Kerugoya case which became Murang’a ELC No. 105/2017, they sought to be declared owners of the land because of their long occupation of the same. Now, under Section 116 of the Evidence Act, it is provided as follows. **“When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”** In this case, the Respondent has not explained why he does not occupy the land parcels in question if indeed he was lawfully registered as the owner. He has not explained how he lost possession and why Pundamilia did not put him in possession after he lawfully acquired the suit parcels. It is my finding that he has failed to respond to this because his claim is based on fraud. 1. For the foregoing reasons, I find that the Appellant is entitled to the orders sought in the plaint dated 28-7-2026. I make the following orders. 2. The Appellants appeal in the memorandum dated 20-2-2025 is allowed in the following terms. 3. The judgment in Kenol MELC Case No. E018 of 2023 is set aside and substituted with the following orders. 4. **A declaration that Title deed number Makuyu/Makuyu/Block 1/5475 and 5476 currently registered in the name of the Defendant were fraudulently obtained and therefore illegal, null and void.** 5. **The title deeds for the suit parcels in (i) above in the name of the Respondent and all entries are hereby cancelled.** 6. **The Land Registrar Murang’a to issue the Appellant with title deeds for the suit parcels.** 7. **The Deputy Registrar of this Court shall execute any necessary instrument to give effect to this judgment.** 8. **Costs in this case and in the lower court to the Appellant.** **It is so ordered.** **Dated, signed and delivered virtually at Murang’a this 28th day of July, 2026.** **M. N. GICHERU** **JUDGE** **Delivered online in the presence of:-** **Court Assistant – Antony** **Appellants’ Counsel – Absent** **Respondents’ Counsel – Mr. Omwega**