https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3170

Mwanzia & another v Olita (Environment and Land Appeal E002 of 2025) [2026] KEELC 3170 (KLR) (19 May 2026) (Judgment) Neutral citation: [2026] KEELC 3170 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Appeal E002 of 2025 AY Koross, J May 19, 2026 Between Annah Agnes Mumbua Mwanzia 1st Appellant Homeward Agencies Limited 2nd Appellant and Crispin Ogonjo Olita Respondent (Appeal from the judgment of Hon. B. A. Ojoo CM, delivered on 17/12/2024 in Mavoko CM’s Court ELC Civil Case No. 27 of 2021 Crispin Ogonjo Olita v. Annah A.W. Mwanzia and Homeward Agencies Limited) Judgment 1.In the lower court, the respondent filed the primary suit through an amended plaint dated 15 December 2021, having previously filed a plaint dated 3 May 2021, asserting that in the 1980s, as an employee of the now-defunct Nairobi City Council, he registered as a member of Water and Sewerage Welfare Association Development Society (“WASWA”). At that time, WASWA membership included employees of the City Council, and its common aim was to pool resources and acquire land for subdivision among its members. 2.That entity purchased approximately 360 plots, each measuring about 50 ft by 100 ft (totalling 40 acres), within a land parcel known as Plot No. 516 Lukenya Ranching and Farming Cooperative Ltd. (“516”), on behalf of its members from Mwalimu Town Properties Ltd (“Mwalimu”). The plots were later allocated to members, including the respondent, who was assigned plot Nos. 516/223 & 224 (“plots”), which, upon registration, became Mavoko Town Block 3/12995 and Block 3/13008 (“suit properties”). 3.He then proceeded to fence the property by erecting a perimeter wall, structures and a metal gate. Nonetheless, sometime in 2007, without any colour of right, the 2nd appellant came to the suit properties, claiming ownership of the mother parcel of land that WASWA had bought for its members. The 2nd appellant went as far as purportedly disposing of portions of the mother parcel to third parties. Among these third parties was the 1st appellant, who claimed to have bought the suit properties. He generally termed the dealings between the appellants as “irregular, null and void having been acquired illegally, by mistake and unprocedural contrary to law.” and urged the court to investigate the root of their title. 4.He stated that the suit properties were not available for sale to the 1st appellant as his interests ranked higher with overriding interests under trust. Therefore, he sought to be declared the owner of land parcel nos. (the suit properties), damages, a permanent injunction, a declaration that the 2nd appellant did not have legal title over the suit properties, and the cancellation of the title documents, with re-issuance in his name. 5.In objection, the 1st appellant filed a defence and counterclaim dated 24 May 2021, in which she denied the allegations made against her and put the respondent to strict proof. She also stated she was a stranger to some of the assertions. She denied that the suit properties were previously the plots. She asserted that she was the rightful and sole proprietor of the suit properties, having purchased them for value from the 2nd appellant via a sale agreement dated 06 August 2009. She also stated that sometime in 2019, the respondent forcibly invaded the suit properties and began construction thereon without any colour of right, remaining a trespasser and denying her access and use. 6.In the counterclaim, she pleaded trespass against the respondent, and she prayed to be declared the proprietor of the suit properties, a permanent injunction, vacant possession and costs of the counterclaim. 7.Respecting the 2nd appellant, it challenged the claim through a defence dated 10 January 2022, whereby it denied the assertions made by the respondent and put him to strict proof. Stated it was a stranger to some of the assertions and maintained the claim did not raise a reasonable cause of action against it. 8.Afterwards, the matter was heard, parties called their respective witnesses, and they relied on witness statements, oral testimonies, and produced documents. In the appellants’ cases, their evidence consisted of the 1st appellant (DW1) and the 2nd appellant’s managing director, Andrew Mbaluto Musila (DW2), whereas the respondent’s evidence was composed of that of himself (PW1) and Newton Kaguata Mkabue, an official of WASWA (PW2). 9.Upon the closure of the cases and the filing of submissions, the impugned judgment was delivered, whereby the learned trial magistrate framed three issues for determination: who between the 1st appellant and the respondent was the legal and rightful owner of the suit properties; whether the 1st appellant was entitled to the reliefs sought in her counterclaim; and what reliefs and/or remedies should be granted. 10.On these issues, the learned trial magistrate found that the 2nd appellant intermeddled with the estate of a deceased person, and the transfer to the 1st appellant was tainted with illegality or fraud. She also satisfied herself that the respondent had explained the root of his title and found that the documents established the respondent’s beneficial interest in the suit properties. On the last issue, she entered judgment for the respondent as follows:a.A declaration that the respondent is the lawful owner of the suit properties.b.A permanent injunction is hereby issued restraining the appellants from interfering with the respondent’s peaceful possession and use of the suit properties henceforth.c.An order is hereby issued for the cancellation/revocation of the title deeds issued for the suit properties in the 1st appellant’s name and the same to be issued in the names of the respondent, upon payment of all requisite fees.d.Each party to bear its costs of the suit. 11.Dissatisfied, the appellants, in exercise of their right to appeal, invoked this court’s jurisdiction by filing a memorandum of appeal dated 9 January 2025 and filed on 13 January 2025, questioning the judgment on 19 grounds that faulted the learned trial magistrate. Nevertheless, the memorandum of appeal fell short in many aspects. Significantly, the nature and form of a memorandum of appeal is set out in Order 42 Rule 1 (2) of the Civil Procedure Rules in the following manner: -“The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.” 12.The purpose of this legislation is to aid the court and the involved parties in accurately framing the issues and to identify the fundamental grounds of dissatisfaction. With all due respect to the appellants, several grounds of appeal set out in the memorandum of appeal fail to meet this criterion, as they introduce new evidence on appeal, which is impermissible, given that the individual named therein, Samuel Kalovoto Seke, was neither featured in the impugned judgment nor decree. See Kenya Hotels Ltd vs. Oriental Commercial Bank Ltd (Formerly known as The Delphis Bank Limited) [2019] eKLR. Accordingly, the court finds that grounds 6, 7, and 8 of the appeal are unsustainable. 13.Ground 5, which questions the purported holding of the learned trial magistrate in Machakos HC Succession Cause No. 231 of 2008, is also unsustainable, as the court has not encountered such a holding but rather an obiter dictum, which cannot be raised as a ground of appeal. See Attorney General v Bala (Civil Appeal 223 of 2017) [2023] KECA 117 (KLR) (3 February 2023) (Judgment). Finally, ground 15, which challenges the impugned judgment on the purported failure to consider their submissions, can be adequately addressed in this court’s judgment, as the court will re-evaluate the record. In any case, this court finds these submissions were considered. 14.Furthermore, recognising this shortcoming in their submissions, including their lack of conciseness, argumentative nature, and narrative style of presenting evidence, the appellants, in their written submissions dated 10 February 2026 by Ms. King’oo & Associates Advocates, abandoned some grounds of appeal and condensed others into three main grounds, thus:a.The learned trial magistrate erred both in law and in fact in finding that the respondent had proved his case against the appellants and was the rightful proprietor of the suit properties.b.That the learned trial magistrate erred in law and in fact in deciding the case against the weight of the evidence on record and misdirected herself when she allowed the respondent’s claim and dismissed the 1st appellant’s counterclaim.c.The learned trial magistrate erred in law and in fact in failing to uphold the sanctity of the 1st appellant’s titles to the suit properties. 15.Following the appeal, the appellants, in their memorandum of appeal, urged this court to allow the appeal, set aside the impugned judgment, and substitute it with an order dismissing the respondent's claim. They also sought that the court award the costs of the appeal and make such further and other appropriate orders as it may deem just in the circumstances of the case. 16.As directed by the court, the appeal was canvassed on the appellants’ submissions above and the written submissions received from the law firm of Ms. Nyende & Co. Advocates for the respondent, dated 30 March 2026. The court appreciates the counsel's insightful submissions. 17.As this is a first appeal, the authority of this court is outlined in Order 42 Rule 32 of the Civil Procedure Rules. Additionally, as an appellate court, this court will not interfere with the impugned judgment unless it is satisfied that the learned trial magistrate misdirected herself, thereby reaching an incorrect decision and exercising her discretion wrongly, causing injustice. The role of an appellate court was aptly described in the decision of Watt v Thomas [1947] AC, 484 at p 485, which was cited with approval in the Court of Appeal decision of Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] eKLR, thus: -“Lord Simon’s speech in Watt v Thomas [1947] AC, 484 at p 485 as follows:“….an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide.But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight…” 18.Regarding the matter in question, this court has thoroughly reviewed the memorandum of appeal, the records of appeal, submissions, the applicable legal provisions, and the authorities cited therein. In the court’s considered opinion, the appeal can be effectively determined by addressing two primary issues: whether the learned trial magistrate erred in law and fact in concluding that the 1st appellant failed to prove her case, and whether the respondent successfully proved his case to the required standards. These two issues shall be handled concomitantly shortly. 19.In her claim, the respondent argued that the appellants’ titles were obtained unlawfully, unprocedurally, illegally, irregularly, and by mistake; that he was in possession with lawful, equitable, constructive, and overriding interests; and that upon allotment to him, the suit properties were not available to the appellants, with his ownership described as having a higher priority. As for the appellants, they maintained that they were strangers to the respondent’s assertions, with the 1st appellant asserting that the respondent was a trespasser. 20 .In the case before the trial court, each party elaborated on how they acquired ownership of the suit properties. Regarding the respondent, he stated that he was a member of WASWA, which allocated the plots to him. He confirmed that he made payments to WASWA through direct deductions from his pay slip and other payment methods. Accordingly, this court is satisfied with the evidence of such payments and recognises that he holds the allotment letters for the plots, which were issued on 24 June 1996. These plots were described as originating from 516. 21.In demonstrating how WASWA acquired ownership of 516, he submitted several documents showing that Samuel Kavoloto Seke (“Samuel”) was a member of Lukenya Ranching and Co-operative Society (“Lukenya”) and possessed an allotment letter for 516. However, this allotment letter indicates that a different plot was cancelled in Samuel’s name and that plot 516 was inserted. The respondent did not explain this discrepancy. 22.Later, Samuel sold 516 to Mwalimu via an agreement dated 8 November 1995 for a consideration of Kshs 1,520,000/-, with a deposit of Kshs 300,000/- paid, and a completion date set for 31 March 1996. There is no record indicating that the remaining Kshs 1,220,000/- was ever paid. 23.Subsequently, Mwalimu sold 516 to WASWA pursuant to an agreement dated 10 January 1996. This agreement stipulated that Mwalimu would subdivide 516 into 304 plots measuring 50 by 100 units, with each plot being sold at a price of Kshs. 18,000. The aggregate consideration was set at Kshs. 5,472,000. An initial payment of Kshs. 2,000,000 had been made prior to the execution of the agreement, with the remaining balance of Kshs. 3,472,000 to be paid in equal monthly installments of Kshs. 360,000 until the full amount was settled. Additionally, the agreement specified that should WASWA choose to purchase fewer plots, this would constitute rescission of the agreement concerning the plots for which payment had not been made. 24.However, there is no evidence that the balance was paid, as receipts adduced by the respondent showed that Kshs. 800,000/- was paid to G.M. Muhoro Advocate to Mwalimu for undisclosed plots between 28 November 1994 and 12 April 1995, which was before the agreement was executed. Evidence shows that WASWA was in default in settling balances on various plots, as evidenced by an agreement dated 14 November 2006. 25.Turning to the appellants, 516, which is also allegedly the land reference no. Mavoko Town Block 3/1976 (“1976”) was allotted to the late Benjamin Wambua Kavoloto (Benjamin). Without a confirmation of the grant over his estate, some of his alleged beneficiaries sold part of 516 measuring 36½ acres to the 2nd appellant under an agreement dated 30 July 2007 for Ksh 4,380,000/-, of which a deposit of Ksh 1,000,000/- was made. The remaining balance of Ksh 3,380,000 was to be paid within six months. Several receipts were presented to substantiate these payments; however, the copies are not legible, except for one showing evidence of a Ksh 100,000 payment made to Catherine Wambua. 26.Subsequently, 516 (now 1976) was officially registered on 16 August 2007 in the name of the 2nd appellant. It was subdivided to establish Mavoko Town Blocks 3/7355 and 7356, covering 15.98 hectares (approximately 40 acres), exceeding the size specified in the agreement. Nevertheless, this additional 3½ acres was later addressed in an agreement dated 5 June 2009 between the 2nd appellant and Wilson Morris Wambua, a beneficiary of Benjamin. The agreement stipulated a consideration of Kshs. 700,000, of which Kshs. 340,000 was paid as a deposit, with a 120-day completion period from 20 May 2009. Although the agreement references completion documents such as consents, stamp duty, and others, it is clear that this was not feasible, as the land was already registered in the name of the 2nd appellant. It remains uncertain whether the remaining balance was paid, as the receipts were illegible. 27.Mavoko Town Blocks 3/7355 and 7356 were allegedly amalgamated to form Mavoko Town Blocks 3/12914. There is no evidence demonstrating that a register for Mavoko Town Blocks 3/12914 was established as required by Section 22 (1) of the Land Registration Act, and it remains uncertain how the subdivisions Mavoko Town Blocks 3/12915-13118 were formed. The 1st appellant, in an agreement dated 6 August 2009, purchased the suit properties from the 2nd appellant and settled the full purchase price of Ksh. 400,000/-. 28.Upon examining this evidence, the learned trial magistrate articulated that it was the responsibility of the 1st respondent to substantiate the authenticity of her title, given that it is contested, and expressed herself thus: -“By operation of section 45 Law of Succession Act, the alleged act of selling the suit land, or portions of it, belonging to the deceased was an act of illegality and intermeddling with the estate of the deceased. On that basis, as a purchaser 1st defendant could only acquire a good title if the 2nd defendant's root title is valid.” 29.Notwithstanding this court's concurrence with the conclusion of the learned trial magistrate that no dealings could be conducted on 516 without obtaining letters of administration and a confirmation of grant on Benjamin’s estate, such an arrival could only be reached upon the respondent particularising his grounds of unlawfulness, unprocedural manner, illegality, irregularity, and mistake against the 1st appellant’s proprietorship, in accordance with Order 2 Rule 10 (1) (a) of the Civil Procedure Act. See Court of Appeal decision of Bruce Joseph Bockle v Coquero Limited (Civil Appeal 94 of 2016) [2017] KECA 265 (KLR) (21 September 2017). Absent this, it was erroneous for the learned trial magistrate to venture beyond the pleadings of the parties and to infer such a finding from the facts. See Muthuuri & 4 others v Attorney General & 2 others [2023] KESC 52 (KLR). 30.Following the lack of proper particularisation of the grounds, an analysis of the doctrine of the root of title as affirmed in Dina Management Ltd v County Government of Mombasa & 5 others and Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR) could not suffice and inspite of the fact that numerous gaps existed in the manner in which the appellants acquired the suit properties, it was erroneous for the learned trial magistrate to decide on the root of title and to find that the respondent had proved his case. This court so finds. 31.Based on the evidence, the 1st appellant is prima facie the registered owner of the suit properties. The respondent, who has fenced the suit property without her authorisation as evidenced by photographs and confirmed by a site visit, is therefore deemed a trespasser as he is not the registered owner of the suit property. 32.It is well established that trespass is actionable per se without the need to prove actual damage. In the circumstances of this case, considering the size and location of the disputed portion, the court hereby awards the 1st appellant Kshs 400,000/= for general damages. 33.Ultimately, based on the reasons and findings outlined above, this court finds that the 1st appellant’s counterclaim was for allowance with costs, and the respondent’s suit was for dismissal. Therefore, the appeal is upheld with costs awarded to the appellants. The judgment of 17 December 2024 is hereby set aside and replaced with a judgment granting the reliefs sought by the appellants in their pleadings. In conclusion, this court issues the following final orders for disposal: -a.The 1st appellant is declared the legal and legitimate proprietor of the parcels of land known as Mavoko Town Block 3/12995 And Mavoko Town Block 3/13008.b.An order of permanent injunction is hereby issued restraining the respondent, by himself, his servants, agents, workmen, licensees, or any other person acting on his behalf, from entering, trespassing, constructing, erecting structures, remaining thereon, disposing of, alienating, dealing with, or otherwise interfering with the 1st appellant’s quiet enjoyment, possession, ownership, and occupation of the parcels of land known as Land reference numbers Mavoko Town Block 3/12995 and Mavoko Town Block 3/13008, situated within Mavoko Sub-county in Machakos County.c.General damages for trespass are ordered in the sum of kshs. 400,000/- payable by the respondent to the 1st appellant.d.The respondent is hereby granted 90 days from the date of service of this court's orders to remove himself and his developments from land reference numbers Mavoko Town Block 3/12995 and Mavoko Town Block 3/13008 and to give the 1st appellant vacant possession, and in default, the 1st appellant shall have the right to evict the respondent by force, along with his servants or agents.e.The respondent’s claim in the lower court is hereby dismissed with each party bearing their own costs.f.Each party shall bear their respective costs of the lower court suit in respect of the counterclaim.g.The costs of the appeal are awarded to the appellants.Judgment accordingly. DELIVERED AND DATED AT MACHAKOS THIS 19TH DAY OF MAY, 2026.HON. A. Y. KOROSSJUDGE19.05.2026Judgment delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Mr. Nyende for the respondent.Mr. Mwangi for appellant.