[2024] KEELC 6076 (KLR)

Githuni & another v Muigai & another (Environment and Land Appeal E021 of 2021) [2024] KEELC 6076 (KLR) (23 September 2024) (Judgment)

Neutral citation: [2024] KEELC 6076 (KLR)

Republic of Kenya

In the Environment and Land Court at Muranga

Environment and Land Appeal E021 of 2021

LN Gacheru, J

September 23, 2024

Between

Jackson Mwangi Githuni

1st Appellant

Hudson Maina Githuni

2nd Appellant

and

Lucy Wagechi Muigai

1st Respondent

Lydia Njeri Muigai

2nd Respondent

(Being an Appeal from the Judgement and Decree of the Senior Principal Magistrates Honourable E Muriuki Nyagah delivered on 2nd December, 2021 in Murang’a Chief Magistrate Court Civil Case Number 149 of 2015)

Judgment

1. This Appeal is dated 14th December, 2021 and it challenges the Judgement of the trial Court (Muranga Chief Magistrate’s Court) delivered on 2nd December, 2021, in Civil Suit No.149 of 2015. The Appellants are seeking the following Orders:1. That the Decree and Orders in Murang’a Chief Magistrate’s Court Civil Case Number 149 0f 2015 dated 2nd December 2021, be set aside and be substituted with an order allowing the Appellants claim by dissolving the trust in Title number LOC.2/Makomboki/1804 and 1805. 2.That the costs here and below be borne by the Respondents.

2. The Appellants were the Plaintiffs in Civil Suit No.149 of 2015 (Murang’a Chief Magistrate’s Court) wherein, they claimed that land parcel numbers LOC.2/Makomboki/1804 and 1805, which parcels are registered in the names of the 1st and 2nd Respondents, are subdivisions of land parcel number LOC.2/Makomboki/1301. According to the Witness Statement of the 1st Plaintiff dated 20th April, 2015 on record, land parcel number LOC.2/Makomboki/1301, is a family or ancestral land, whose history he recounted as follows: that his grandfather Karanja Chege was the original registered owner of land parcel number LOC.2/Makomboki/154.

3. In their Plaint dated 20th April, 2015, the Plaintiffs(Applicants) stated that their grandfather Karanja Chege, was engaged in a lawsuit involving land parcel number LOC.2/Makomboki/154; that during the pendency of the said suit, three of his sons died, namely: MwangiKaranja, Jackson MwangiKaranja And Joseph MwangiKaranja, leaving one son alive namely, Eutycus Mwangi.

4. The Plaintiffs (now Appellants) and the 1st Defendant in the suit before the trial Court, David Muigai Mwangi(deceased), are the sons of Jackson MwangiKaranja (deceased). The Respondents in the present suit are the children of David Muigai Mwangi(deceased), which makes them nieces to the Appellants.

5. The 1st Plaintiff further alleged that the deceased persons were subsequently substituted with their sons. The Plaintiffs further stated that the outcome of the said suit was in favour of his grandfather’s estate as the Court ruled that the parcel of land in contention shall devolve to the five sons of Karanja Chege. The Plaintiffs further stated that upon substitution, David Muigai Mwangiwas registered as the proprietor of land parcel number LOC.2/Makomboki/1301, comprising 5. 1 Acres to hold in trust for himself and the family of the late Jackson MwangiKaranja in equal shares.

6. The 1st Plaintiff further contended that he resides on that land parcel number LOC.2/Makomboki/1301. The Plaintiffs also claimed that the Defendants unlawfully and without any colour of right subdivided land parcel number LOC.2/Makomboki/1301, into land parcel numbers LOC.2/Makomboki/1804 and 1805, when the said trust was still subsisting, which subdivision attested to the Defendants(Respondents) bad faith.

7. In their claim against the Defendants, the Plaintiffs’ (now Appellants) urged the trial Court to cancel the titles of the 2nd and 3rd Defendants (Respondents), and the same to be reverted to the original number LOC.2/Makomboki/1301. They further urged the Court to dissolve the trust encumbering land parcel number LOC.2/Makomboki/1301, and the Plaintiffs(Applicants) to receive a third shares each of land parcel number LOC.2/Makomboki/1301.

8. In dismissing their suit, the trial Court held that the Plaintiffs (Applicants) failed to demonstrate by way of evidence that the suit wherein it was decreed that land parcel number LOC.2/Makomboki/154, registered in the name of their grandfather be subdivided amongst his sons.

9. The trial Court determined that the Plaintiffs(Applicants) failed to establish the existence of a customary trust in respect of land parcel number LOC.2/Makomboki/1301 (the suit property), because the Plaintiffs(Applicants) and the 1st Defendant acquired different titles after sub-division of land parcel number LOC.2/Makomboki/166, from their father.

10. The instant Appeal is premised on the following eight (8) grounds:1. That the trial Court erred in law and in fact by holding that the Plaintiffs failed to establish the existence of a customary trust in respect of the suit land resulting in a miscarriage of justice.2. That the trial Court erred in law in rendering itself as to land parcel number LOC.2/Makomboki/166, whereas the suit before it concerned land parcel number LOC.2/Makomboki/1301 which was later subdivided into land parcel numbers LOC.2/Makomboki/1804 and 1805. 3.That the trial Court erred in law in not holding and finding that David Muigai Mwangi, who is a brother to the Appellants was registered to hold land parcel number LOC.2/Makomboki/1301, in trust for the Appellants and himself in equal shares, which rendered illegal the subdivision of the same into land parcel numbers LOC.2/Makomboki/1804 and 1805. 4.That the trial Court erred in law in not holding and finding that by virtue of the fact that David Muigai Mwangiwas registered as the proprietor of land parcel number LOC.2/Makomboki/1301, in trust for himself and the Appellants in equal shares, therefore, the Respondents are holding land parcel numbers LOC.2/Makomboki/1804, and 1805 for themselves and the Appellants in equal shares.5. That the trial Court erred in law in totally disregarding the 1st Appellant’s evidence and Witness Statement thereby, rendering itself on a different parcel of land from that set out in the Appellants’ evidence and bundle of documents.6. That the trial Court erred in law in not holding and finding that if David Muigai Mwangiwas not registered to hold in trust land parcel number LOC.2/Makomboki/1301, then, the 1st Appellant would not have been in occupation of the same since 1959 as he has been.7. That the trial Court erred in law by failing to interrogate the manner in which the father to the Defendants (now Respondents) became the registered owner of the suit land before he transferred the same to the Respondents.8. That the trial Court’s findings went against the weight of the evidence on record before it.”

11. The Appeal was admitted pursuant to the provisions of Section 79(B) of the Civil Procedure Act, with directions that the same be canvassed by way of written submissions.

The Appellants’ Submissions 12. The Appellants filed written submissions on 12th February, 2024, through the Law Firm of Wahome Gikonyo & Company Advocates. It was submitted that the primary issue for consideration by this Court is whether the Appellants established that a customary trust existed in respect of land parcel number LOC.2/Makomboki/1301.

13. The Appellants reiterated the contention that David Muigai Mwangi(deceased), was registered as the proprietor of land parcel number LOC.2/Makomboki/1301, comprising 5. 1 Acres to hold in trust for himself and the other two (2) sons of the late Jackson MwangiKaranja, namely, the 1st and 2nd Appellants herein, in equal shares. It was submitted that the subdivision of land parcel number LOC.2/Makomboki/1301, which created land parcel numbers LOC.2/Makomboki/1804 and 1805, was illegal as the said land was encumbered by a trust in the Appellants’ favour.

14. It was the Appellants’ further submission that the Respondents have never resided on the suit land. They affirmed that the 1st Appellant resides on the suit property, and added that in the proceedings before the trial Court, the Respondents did not raise a Counter-claim seeking the Appellant’s eviction therefrom.

15. The Appellants urged the Court to allow the instant Appeal and set aside the decision of the trial Court dated 2nd December, 2021. Further, they urged the Court to cancel the titles of the 2nd and 3rd Defendants, and the same be reverted to the original number LOC.2/Makomboki/1301. Further, they urged the Court to dissolve the trust encumbering land parcel number LOC.2/Makomboki/1301, and the 1st and 2nd Plaintiffs to receive a third shares each of land parcel number LOC.2/Makomboki/1301.

The Respondents’ Submissions 16. The Respondents filed written submission on 5th March, 2024, through the Law Firm of Mbiyu Kamau & Company Advocates. They set out the background of the present dispute as follows: that the late Karanja Chege was their great-grandfather and grandfather to the Appellants, and the registered owner of land parcel number LOC.2/Makomboki/154. They submitted that a dispute arose between Karanja Chege and Mokomboki tea factory regarding land parcel number LOC.2/Makomboki/154.

17. It was the Respondents’ further submission that land parcel number LOC.2/Makomboki/166, was registered in the name of MwangiMutogoni Alias Jackson MwangiKaranja Alias Jackson MwangiKaranja, who was father to the Appellants and grandfather to the Respondents.

18. Further, that land parcel number LOC.2/Makomboki/166, was subsequently divided into LOC.2/Makomboki/965, 966 and 967, which three (3) parcels were bequeathed to the 1st and 2nd Appellants and their brother David Muigai Mwangi(the father to the Respondents), as part of their inheritance from their father Jackson MwangiKaranja.

19. The Respondents submitted that land parcel number LOC.2/Makomboki/1301, emanated from land parcel number LOC.2/Makomboki/154, which parcel of land was forcefully taken by Makomboki tea factory, from their great grandfather Karanja Chege (deceased). That the late Karanja Chege being too advanced in terms of age to engage Makomboki tea factory in Court concerning the ownership of land parcel number LOC.2/Makomboki/154, tasked his sons to prosecute the matter wherein, only one of his sons namely, Jackson MwangiKaranja alias Jackson MwangiKaranja who is their grandfather and father to the Appellants took up the same.

20. The Respondents added that their father David Muigai Mwangi(deceased) subsequently took over the said suit from his father Jackson MwangiKaranja alias Jackson MwangiKaranja. They further submitted that at the conclusion of the said suit, land parcel number LOC.2/Makomboki/154, is what became land parcel number LOC.2/Makomboki/1301, which parcel was registered in the name of their father David Muigai Mwangi, and it does not form part of the estate to which the Appellants are the beneficiaries.

21. It was the Respondents’ further submissions that the Court should not allow the Appellants to benefit from their brother’s fruits of struggle, expenditure and hardship of litigation, because the Appellants were not privy to the process leading up to the acquisition and registration of land parcel number LOC.2/Makomboki/1301.

22. It was further submitted that a customary trust is proved by adducing evidence in support of the same which obligation the Appellants failed to meet at the trial Court. Reliance was placed on the provisions of Section 108 of the Evidence Act, and on the decision of the Court in the case of Mbui Mukangu V Gerald Mutwiri Mbui, C.A. No. 281 of 2000.

23. The Respondents submitted that the subdivision of land parcel number LOC.2/Makomboki/1301, which created land parcel number LOC.2/Makomboki/1804, and land parcel number LOC.2/Makomboki/1805, was lawful because their father David Muigai Mwangiwas the absolute owner of land parcel number LOC.2/Makomboki/1301.

24. It was further submitted that the present matter was filed in the year 2015, and litigation must come to an end. Reliance was sought in the holding of the Court in the case of Thuo V Gichina (Civil Misc. Appl. No E007 OF 2022) [2022] KEHC 16501 (KLR) (15 December 2022) (Ruling).

25. The court has considered the instant Appeal, the Record of Appeal and the rival written submissions and finds the issues for determination are;-i.Whether the Appellants are entitled to the Orders sought?ii.Who shall bear the costs of the Appeal?

Whether the Appellants are entitled to the Orders sought? 26. This being a first Appeal, the Court is guided by the holding of the Court in the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) (Judgment), where the Court stated as follows:A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.”

27. The duty of a first Appellate Court was elaborated in the case of Peter M. Kariuki v Attorney General [2014] eKLR, where it was held that:“We have also, as we are duty bound to do as a first appellate Court, re-consider the evidence adduced before the trial Court and re-evaluate it to draw our own independent conclusions, and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence.”

28. See also the decision of the Court in Selle & another v Associated Motor Boat Co. Ltd.& Others [1968] EA 123 where the Court declared as follows:“...this 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..."

29. In the proceedings before the trial Court, the parties adverted to the long and protracted history leading to the issuance of title to land parcel number LOC.2/Makomboki/1301. The 1st Plaintiff in his Witness Statement dated 20th April, 2015, appearing on page 8 of the Record of Appeal, stated that his grandfather Karanja Chege was the owner of 60 Acres of land which he shared amongst his sons as follows:MwangiKaranja – 24. 5 Acres.Jackson MwangiKaranja – 9. 3 Acres.Eutycus MwangiKaranja – 18. 5 Acres.Joseph MwangiKaranja – 8. 3 Acres.

30. That the total acreage tabulated from the portions allocated to the four (4) sons of the late Karanja Chege is 60. 6 Acres. And the 1st Plaintiff(Appellant) further claimed that the four (4) sons of the late Karanja Chege sold a total of 19. 8 Acres to Makomboki tea factory as follows:MwangiKaranja – 6. 2 Acres.Jackson MwangiKaranja – 4. 2 Acres.Eutycus MwangiKaranja – 4. 2 Acres.Joseph MwangiKaranja – 5. 2 Acres.

31. It was the 1st Plaintiff’s further contention that following the aforesaid sale of 19. 8 Acres to Makomboki tea factory, the remaining land comprising of 40. 8 Acres was shared out in its entirety among the four (4) brothers as follows:MwangiKaranja – 18. 3 Acres.Jackson MwangiKaranja – 5. 1 Acres.Eutycus MwangiKaranja – 4. 1 Acres.Joseph MwangiKaranja – 13. 3 Acres.

32. The Plaintiffs main contention in the suit before the trial Court and in the instant Appeal is that their brother David Muigai Mwangiwas registered as the proprietor of the suit land comprised of 5. 1 Acres as set out above, to hold in trust for himself and the Appellants, being the successors-in-title of Jackson MwangiKaranja.

33. The Respondents, for their part, urged the Court not to allow the instant Appeal because their father David Muigai Mwangi(deceased), took over the task of litigation in respect of the suit property without any assistance from the Appellants, who are his siblings. They submitted that the Appellants, should not benefit from the fruits of a process to which they were not part and whereby they left their brother to shoulder the entire burden himself.

34. Section 28 (h) of the Land Registration Act, 2012 stipulates as follows:“Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register—(h)rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription;”

35. Section 28 (h) of the Land Registration Act, 2012 mirrors the wording of Section 30 (f) of the Registered Land Act CAP. 300 (Repealed) which provided as follows:“Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register(f)rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription;”

36. The Appellants argued and submitted that land parcel number LOC.2/Makomboki/1301, is family land and is encumbered by a customary trust, therefore, the original registered proprietor David Muigai Mwangi, who was their brother illegally caused the subdivision of the same into land parcel numbers LOC.2/Makomboki/1804 and 1805, in favour of his two daughters (the Respondents herein).

37. The nature of a Customary trust was well explained by the Supreme Court in the case of Isack Kieba M’inanga v Isaaya Theuri M’Lintari & another [2018] eKLR, as follows:“Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are: 1. The land in question was before registration, family, clan or group land.

2. The claimant belongs to such family, clan, or group

3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.

4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.

5. The claim is directed against the registered proprietor who is a member of the family, clan or group.”

38. In the case of Njenga Chogera –vs- Maria Wanjira Kimani & 2 Others [2005] eKLR, which quoted with approval the holding in the case of Muthuita –vs- Muthuita [1982 – 88] 1 KLR 42, the Court of Appeal held that customary law trust is proved by leading evidence.

39. In the case of Kamau v Thiga (Environment and Land Appeal 5 of 2021) [2022] KEELC 2839 (KLR) (21 July 2022) (Judgment), the Court held as follows:The legal burden of proving the existence of the trust rests with the one who is asserting a right under customary trust. To discharge this burden, the person claiming must [prove] that: - the suit properties were ancestral clan land;

during adjudication and consolidation, one member of the family was designated to hold on behalf of the family;

the registered persons were the designated family members who were registered to hold the parcels of land on behalf of the family. In essence, one had to lay bare the root of the title to create the nexus or link of the trust to the title holder and the claimant.”

40. In the case of Mukangu Vs Mbui (2004) 2 KLR 256, the Court of Appeal reasoned as follows:However, since the registration recognizes trusts in general terms without specifically excluding trusts originating from customary law and since African customary laws in Kenya, generally, have the concept or notion of a trust inherent in them where a person holding a piece of land in a fiduciary capacity under any of the customary laws in the piece of land registered in his name under the Act with the relevant instrument of an acquisition either describing him or not describing him by the fiduciary capacity, that registration signifies recognition , by the Registered Land Act of the consequent trust with the legal effect of transforming the trust from customary law to the provisions of the Act because, such registration does not "relieve a Proprietor from any duty or obligation to which he is subject as a trustee .”

41. In the proceedings before the trial Court, did the Appellants present sufficient evidence to establish the claim that the suit property is family/ancestral land? According to the Witness Statement of the 2nd Respondent filed before the trial Court on 24th March 2021, the suit property initially belonged to Karanja Chege, who was grandfather to the Appellants and great-grandfather to the Respondents, before it was illegally acquired by Makomboki tea factory, and subsequently restored to the estate of Karanja Chege vide a decision of the Court.

42. The 2nd Respondent further stated that her grandfather Jackson Mwangialias Jackson MwangiKaranja, is the only son of his father who took up the task of recovering through litigation the said parcel land from Makomboki tea factory. She added that her father David Muigai Mwangisubsequently assumed the same responsibility from his father Jackson Mwangi, without any contribution from his brothers (the Appellants herein). From the foregoing, it is evident that the Respondents do affirm the Appellants’ claim that the suit property is ancestral land.

43. The 2nd Respondent further stated that her grandfather Jackson Mwangialias Jackson MwangiKaranja, subdivided his land parcel number LOC.2/Makomboki/166, into three portions and allocated the same to his three sons namely, the Respondents’ father David Muigai Mwangiand the Appellants herein which subdivisions were registered as: LOC.2/Makomboki/966; LOC.2/Makomboki/967; and, LOC.2/Makomboki/965.

44. The Respondents argued and submitted that the suit land was never held by their father in trust for the Appellants because it formed part of their father’s inheritance. They further argued that the suit land emanated from land parcel number LOC.2/Makomboki/154, which is a separate parcel of land from land parcel number LOC.2/Makomboki/166.

45. It is the finding and holding of the Court that the suit property originally registered as land parcel number LOC.2/Makomboki/154, belonged to Karanja Chege who was the grandfather to the Appellants and great-grandfather to the Respondents hence the same is family/ancestral land.

46. The trial Court in its decision dated 2nd December, 2021, entered the finding that the 1st Plaintiff(Appellant) established that he has been residing on the suit property. The Court considers the 1st Plaintiff(Appellant)’s occupation of the suit property as constituting additional evidence that the suit property is ancestral land.

47. The trial Court in its Judgment delivered on 2nd December, 2021, determined that the Defendants (now Respondents) failed to establish the High Court case that decreed in their favour in the dispute with Makomboki tea factory over land parcel number LOC.2/Makomboki/154, which later was registered as land parcel number LOC.2/Makomboki/1301, and subsequently subdivided into land parcel number LOC.2/Makomboki/1804 and 1805.

48. Section 107 of the Evidence Act provides as follows:“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any facts it is said that the burden of proof lies on that person.”

49. Furthermore, Sections 109 and 112 of the Evidence Act (CAP. 80) state as follows:S.109. “The burden of proof as to any particular fact lies on the person who wishes the court to believe in the existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”S.112“In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him”.

50. It is the holding of the Court that the Respondents did not tender any evidence attesting to the litigation process which eventuated in the transformation of land parcel number LOC.2/ Makomboki/154 into land parcel number LOC.2/Makomb- Oki/1301.

51. The Court finds and holds that the Respondents failed to adduce any evidence at the trial Court in support of their claim that their father single-handedly and without the input of his siblings (the Appellants herein) managed through litigation to recover land parcel number LOC.2/Makomboki/154, from Makomboki tea factory.

52. Accordingly, the Court holds that the Respondents have not demonstrated why their father should be entitled to the entire land parcel number LOC.2/Makomboki/154, which became land parcel number LOC.2/Makomboki/1301, whereas the Respondents’ father was also a beneficiary of a third of LOC.2/Makomboki/166 alongside the Appellants.

53. Section 80 (1) of the Land Registration Act No. 3 of 2012 provides as follows:“Subject to subsection (2), the court may Order rectification of the registrar by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.”

54. In the case of Mary Ruguru Njoroge –Vs- Samuel Gachumu Mbugua & Others [2014] eKLR, the court held as follows:“The court too has powers to order the rectification of the title or register in appropriate circumstances. The court will under Section 80(1) of the Land Registration Act order the cancellation or amendment of an entry or any registration when it is satisfied that the registration was obtained made or omitted by fraud or mistake. Registration under the said Section, in my view, refer to and includes a title or entry in the register or on the title itself. It is however upto the party seeking rectification to prove to the court’s satisfaction that there has been fraud or a mistake in the registration. In my view, the mistake referred to under section 80(1) includes both a slip like a typographical error and a substantivemistake like the registration of a wrong or erroneous name. in equity, the court also has powers to rectify in suitable circumstances any written instrument to conform with the agreement between the parties, where the instrument, by mistake, does not express the agreement and the mistake justifies the intervention of the court.”

55. This Court finds and holds that the suit land was encumbered by a Customary trust at the time of its registration in the name of David Muigai Mwangi(deceased). It is the further holding of this Court that as David Muigai Mwangi(deceased), was not the absolute owner of the suit property, but a beneficiary of the same together with his brothers (the Appellants herein), and he was not entitled to demise the suit land to the Respondents without the concurrence of the Appellants as he did.

56. The Courts further holds and finds that title numbers LOC.2/Makomboki/1804, and LOC.2/Makomboki/1805 were improperly registered and directs that the same be and are hereby cancelled. The Court further directs the Lands Registrar to issue three title deeds in respect of three equal portions of the suit property as follows: one title in favour of the 1st Appellant, a second title in favour of the 2nd Appellant and a third title in the names of the Respondents jointly.

57. Accordingly, after careful re-consideration, re-evaluation and re-assessment of the evidence before the trial Court as contained in the Record of Appeal, this Court finds and holds that the Appeal herein is merited and it succeeds by allowing prayer No. 1 of the Memo of Appeal dated 14th December 2021.

Who shall bear costs of the Appeal? 58. This appeal concerns family land; accordingly, the Court directs that each party to bear its own costs in respect of the current Appeal and the suit at the trial Court.

59. Appeal is hereby allowed accordingly.

DATED,SIGNED AND DELIVERED VIRTUALLY AT MURANG’A, THIS 23RDDAY OF SEPTEMBER 2024. L. GACHERUJUDGE.23/9/2024Delivered online in the presence of;Joel Njonjo - Court Assistant.M/s Njuguna H/B Mr Wahome Gikonyo for the AppellantsN/A for the Respondents.