https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3472

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELCA E166 OF 2024** **MATHEW MULI MUTUNGA - 1ST APPELLANT** **SIMON SILA MUTUNGA - 2ND APPELLANT** **VS** **RAEL MULI MUTUNGA alias** **RAEL SYOMBUA MUTUKU - RESPONDENT** **[Being an appeal from the judgment and decree of the Cooperative Tribunal at Nairobi delivered on 31/11/23 in Tribunal Case No CTC 62 of 2021]** **JUDGMENT** **The Introduction and background** 1. The appeal arises from the judgment of the Cooperative Tribunal [hereinafter called the Learned Tribunal] dated 31/11/23, in which the Appellants were the Respondents and the current Respondent was the claimant in the tribunal proceedings. 2. In her statement of claim, the Respondent sought orders that a declaration be made that she is the sole owner of plot No 11-036 [hereinafter called the suit land] and of membership No 883 within Muka Mukuu Farmers’ Cooperative Society Limited [hereinafter called the Society]; a permanent injunction restraining the Appellants from interfering with the suit land in any way; eviction orders; and costs of the suit. 3. That the suit land was owned by Musya Nthenge, deceased member No 883, until his demise in 1973, after which the share and ownership of the land were transferred to her on 9/4/96, and a new membership No 873 was allocated to her. Unknown to her, the Appellant's father, Mutunga Nthenge, her deceased husband's brother, fraudulently transferred the suit land to himself without her consent and knowledge. Upon reporting the matter to the Society, the Arbitral Committee revoked the transaction and ordered him to return the Yellow card and all relevant documents in respect of the suit land. That Mutunga Nthenge refused to heed the directives of the Arbitral Committee. The Appellants thereafter trespassed onto the land without any colour of right, constructed structures and carried out other activities, all with the intent of depriving her of her family land and occasioning her loss and damages. 4. In their defence and counterclaim, the Appellants denied the Respondents' claim and contended that the suit land belonged to Mutunga Nthenge, their deceased father, who purchased [redeemed] the land after the death of his brother, Musya Nthenge. They denied any fraud on their father's part and asserted that their occupation and possession, and all activities thereon, are lawful and legal. 5. They further averred that their father redeemed the land from the Society after the Respondent’s husband failed to pay for it. This occurred after the Respondent had been absent from the land for a long period and after her husband’s death. They faulted the Respondent for remaining uncooperative by refusing to attend the Society meetings called to resolve the dispute that led to the transfer of the land in their father’s name. They further averred that they have occupied the land since 1983 to date and have therefore acquired title by adverse possession. They accused the Respondent of fraud in causing the land to be registered in her name and sought orders that a declaration be made that the Respondents are the rightful owners of share No 883 and plot No 11-036, having acquired the same by adverse possession, and that costs of the suit be awarded. 6. Upon hearing the matter, the Hon Tribunal delivered its judgment on 30/11/2023, which judgment has triggered this first appeal. 7. On the issue of whether the Respondent had proved her case, the Tribunal held that she was the wife of Muasya Nthenge, the original owner of the suit land. The Tribunal held as follows; “From the evidence, we can confirm from the membership copy of the records that upon Muasya Nthenge's death, his membership was transferred to his next of kin, who is the claimant. The claimant has availed evidence in Court to show receipts of payment for the share certificate and the plot of land. Also, before the Court is the evidence from the arbitration committee ordering the Respondent's father, Mutunga Nthenge, to return the yellow card and identification badge to the society for the same to be handed back to the Respondent. The tribunal is not convinced by the Respondent’s version of events that their father paid for the plot. 1. The Tribunal further held that the Respondent had proven her claim against the Appellants and allowed her claim as follows; “We declare the claimant Rael Wakeli Muasya as the sole owner of the suit land.” 1. Aggrieved by the above decision, the Appellants brought this appeal on the grounds that the Respondent's claim was extinguished by adverse possession, as the Respondent had occupied the suit land since 1996; that the Respondent had abandoned her claim to the suit land and that the attempted suits instituted later came after the right to adverse possession had crystallized in favour of the Appellants; that there was overwhelming evidence in support of adverse possession, yet the tribunal erred in disregarding it; that their father paid for the land, leading to its registration in his name, and that the alleged revocation of the same by the arbitral committee was null and void, as it had no power to do so; and that the society had no power to revert the land to the Respondent without letters of grant of administration having been petitioned and obtained in the estate of Muasya Nthenge, the original owner. 2. Consequently, the Appellants sought orders that the Tribunal’s judgement delivered on 30/11/23 be set aside and/or quashed; that the Court declare that Mutunga Nthenge acquired the suit premises legally by adverse possession or by producing a proper instrument of transfer from Muka Mukuu Farmers’ Cooperative Society Limited; that the Court declare the applicant to be a beneficiary of the suit premises arising from their father's ownership; and that the appeal be allowed with costs. 3. The Court has read and considered all the submissions filed by the parties in this appeal and will refer to them in the main judgment. **Analysis and determination** 1. Having considered the record of appeal in its entirety, the written submissions and all the material placed before the Court, the issues that fall for determination are; 1. Whether there is a competent appeal 2. Whether the Tribunal erred in making a finding that the land belongs to the Respondent. 3. Costs of the appeal. 2. As a first appellate Court, this Court has a duty to analyze, reconsider and re-evaluate the entire evidence on record so as to satisfy itself as to the correctness or otherwise of the decision of the trial Court. The principles which guide a first appellate Court were summarized in the case of Selle & Another –vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123 at P.126 as follows: “…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 that respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression on the demeanor of a witness is inconsistent with the evidence in the case generally.” 1. Similarly, in the case of Peters –vs- Sunday Post Ltd [1958] EA 424 Sir Kenneth O’ Connor, P. rendered the applicable principles as follows: “...it is strong thing for an appellate Court to differ from the finding, on a question of fact, of the judge who tried the case, and who had the advantage of seeing and hearing the witnesses. An appellate Court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon the evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellate Court might itself have come to a different conclusion...” 1. Bearing the above principles in mind, I shall now undertake the analysis of the instant appeal. 2. Before I delve into the main issue for determination, I wish to inquire as to the competency or otherwise of the appeal before the Court. 3. Section 79G of the Civil Procedure Act provides that appeals from the subordinate Court should be filed within thirty (30) days of the date of the decree or order appealed against. Section 95 of the said Act gives the Court discretion to extend the time as it deems fit, even if the originally fixed time has expired. Order 50 Rule 6 of the Civil Procedure Rules empowers the Court to extend time where sufficient cause is shown. 4. In this case, the Court's judgment was rendered on 30/11/2023, and any appeal was required to be lodged by 30/12/2024. The record indicates that, upon application, the Court granted the applicants seven days to file the memorandum of appeal and a further sixty days to file the record of appeal. The Court is satisfied that the memorandum of appeal dated 25/10/2024 was duly filed within the prescribed timeframe. However, the record of appeal dated 20/02/2025 was filed outside the time allowed by the Court, vide its Orders dated 6/12/2024. Pursuant to the Court's order extending the time, the record of appeal was to be filed no later than 24/01/2024, but it was filed on 20/02/2025, thereby exceeding the prescribed period. 5. The Court finds that the appeal before it is incompetent and, in the absence of a certificate of delay having been obtained and or orders enlarging time for appeal, the Court has no jurisdiction to entertain the appeal. 6. The appeal herein is hereby struck out with costs to the Respondent. 7. **Final orders for disposal** 1. The Appeal is incompetent. It is struck out. 2. The costs are in favour of the Respondent 8. Orders accordingly **DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 4TH JUNE 2026 VIA MICROSOFT TEAMS.** **J G KEMEI** **JUDGE** **Delivered Online in the Presence of:** 1. Mr. Njue for the Appellants 2. N/A for the Respondent 3. CA- Ms. Yvette/Kendi