[2025] KEELC 3808 (KLR)

Ngombo & 2 others v Njiraini (Environment and Land Appeal 33 of 2023) [2025] KEELC 3808 (KLR) (15 May 2025) (Judgment)

Neutral citation: [2025] KEELC 3808 (KLR)

Republic of Kenya

In the Environment and Land Court at Kerugoya

Environment and Land Appeal 33 of 2023

JM Mutungi, J

May 15, 2025

Between

Charles Nyamu Ngombo

1st Appellant

Charles Mwangi Ngimbo

2nd Appellant

Dan Kinyua Ngombo

3rd Appellant

and

Bernard Mwai Njiraini

Respondent

(An Appeal from the Judgment of the Principal Magistrate’s Court at Baricho in PMC No. 12 of 2019 delivered on 18/10/2023 by Hon. David I. Muchangi – Principal Magistrate)

Judgment

1. The instant appeal is against the judgment delivered on 18th October 2023, by Hon. David I. Muchangi, Principal Magistrate, in Baricho PMC No. 12 of 2019. In his Judgment, the Trial Magistrate determined that the Respondent, the Plaintiff in the Lower Court, had successfully proved his case against the Appellants, who were the Defendants in Lower Court suit. The Court ordered that the Appellants, along with their families and anyone claiming through them, vacate Land Parcel No. Mwerua/Gitaku/1853 (the suit land) within six months from the date of the Judgment. The Court further ordered that if they failed to vacate, they be forcefully evicted after the expiry of the six-month period. Additionally, the Trial Magistrate dismissed the Appellants Counterclaim and awarded costs to the Respondent.

2. Aggrieved and dissatisfied with the Judgment, the Appellants appealed to this Court against the Judgement and set out four grounds of Appeal as follows:1. That the Learned Magistrate erred in law in making Judgment against the weight of evidence.2. That the Learned Magistrate erred in law and fact in failing to fairly evaluate and analyze the evidence adduced by the Appellants.3. That the Learned Magistrate erred in law and fact in disregarding the fact the Respondent did not prove his case on a balance of probabilities.4. That the learned Magistrate erred in law and fact in disregarding all the evidence adduced by and on behalf of the Appellant thereby arriving at an erroneous finding.

3. The Appellants thus prayed that their Appeal be allowed and the Judgment of the Lower Court be set aside and substituted with an order dismissing the Respondent’s case with costs.

4. In the present matter, the Respondent initiated legal action against the Appellants in the Lower Court where he sought the forceful eviction of the Appellants, their families, and anyone claiming rights under them from the suit land. The Respondent asserted that he was the legal owner of land parcel Mwerua/Gitaku/1853 and that the Appellants had refused to leave the property.

5. The Appellants by a further amended statement of defence and Counterclaim dated 24th January 2023, asserted that they are the beneficial owners of the suit land, which was a partition of Land Parcel Mwerua/Gitaku/96. They contended that the partitioning of Land parcel Mwerua/Gitaku/96 was unlawful, as there was an interlocutory order in place that prohibited any transactions relating to the same. Additionally, the Appellants claimed that the Respondent had no proprietary rights over the land they occupy.

6. The Appellants by the Counterclaim averred that on 27th June 2018, the Court issued Interlocutory Orders of inhibition and status quo concerning Land Reference (LR) Mwerua/Gitaku/96 in Succession Cause No. 30 of 2013. They further averred that on 17th July 2018, while the proceedings in High Court Succession Cause No. 30 of 2013 were still ongoing, the Respondent caused the subdivision of Land Parcel LR Mwerua/Gitaku/96 and registered a new parcel, LR Mwerua/Gitaku/1853, in his name.

7. The Appellants averred that at the time the Court issued the inhibition orders on 7th February 2019,after interpartes hearing of the application dated 25th June 2018 in the succession case they were unaware that LR Mwerua/Gitaku/96 had already been subdivided and that the suit land had been transferred to the Respondent. The Appellants sought an order declaring that the Respondent unlawfully dealt with LR Mwerua/Gitaku/96 by subdividing it and transferring the suit land to himself. They also sought an order directing the District Land Registrar to cancel Entry No. 8 in the register of LR Mwerua/Gitaku/96, thereby nullifying the title deeds for LR Mwerua/Gitaku/1852, 1853, 1854, and 1855. The Appellants further prayed for costs of the suit and/or alternatively they be declared the beneficial owners of LR Mwerua/Gitaku/96 and an order for it to be transferred to them do issue.

8. The Respondent filed his Reply to Defence and Counterclaim on 19th January 2023. In his response, he stated that LR Mwerua/Gataku/96 did not exist and that the land from which he sought to have the Appellants evicted was actually LR Mwerua/Gataku/1853. He further asserted that there was no inhibition order issued against him on 27th June 2018, or on any other date that he disobeyed.

9. The Respondent further claimed that LR Mwerua/Gataku/1853 was legally and properly transferred to him as the son of Samwell Njiraini Ngari (deceased), who was the son of Elijah Ngari, also known as Ngari Ngotho (deceased), whose estate was subject to the proceedings in Kerugoya High Court Succession Cause No. 30 of 2013. The Respondent maintained that the inhibition orders had been issued against a non-existent parcel of land and, as such, lacked legal effect. He further pleaded that High Court dismissed the orders the Appellants sought to be granted in a ruling dated 19th October 2022.

10. Consequently, the Respondent prayed that the Defendant’s Counterclaim be dismissed with costs and that judgment be entered in his favour.

11. The Lower Court heard the Respondent’s case on 16th June, 2023. The Respondent affirmed the existence of the case in the Kerugoya High Court, specifically Succession Cause No. 30 of 2013, which pertained to the estate of his grandfather, Elijah Ngari. He stated that his grandfather had six children, two of whom—Elizabeth Wambui and Mary Njeri—renounced their claim to a share of their father's estate. He testified that the appellants are sons of the late Abednego Ngombo and that he is a son of Samuel Njiraini, who passed away in 2010.

12. The Respondent testified that the Grant of Letters of Administration to the estate of his late grandfather was confirmed in 2016, by which time the last four children of the deceased had already passed away. He stated that the suit land was distributed and the share belonging to Abednego Ngombo was given to Joseph Murimi Ngombo on behalf of Abednego.

13. The Respondent testified that he was not aware of orders issued to stop the subdivision of the land and stated that the orders were issued long after the land had been subdivided and the title deed had been issued. He asserted that he was not served with the order issued on 27th June 2018. He claimed that he had been granted the land by the Court and contended the Appellants should vacate from the land.

14. The Respondent admitted his father had another parcel of land where they were residing and that it was the Appellants were the ones who were residing on the portion of land parcel Mwerua/Gitaku/96 that he was given and had refused to vacate from thereon. He acknowledged the Appellant had built on the suit land.

15. The Appellants' case was heard on 30th August 2023 when the 3rd Appellant testified on behalf of the Appellants. In his evidence he confirmed the Respondent was their Cousin. The Appellants position was that land parcel Mwerua/Gitaku/96, which originally belonged to their grandfather should be reverted to his name to enable all the beneficiaries who included themselves to have their share out of it. The 3rd Appellant testified that although the Respondent's father was a son of their grandfather, he already owned his own land. The Appellants contention was that the Respondent was not entitled to a share of the original suit land. Additionally, the 3rd Appellant in his evidence averred that the Succession Court had halted all transactions relating to the suit land to forestall any interference with the suit land.

16. It is against the foregoing evidence that the Lower Court issued the contested judgment. In reaching its decision, the Trial Magistrate noted, “Based on the evidence presented by the Plaintiff, this court is satisfied that the Plaintiff is the absolute registered proprietor of the subject land, and his rights are therefore protected by sections 24 and 25 of the Land Registration Act.” The Trial Court concluded that the Respondent was entitled to enjoy all rights and privileges associated with ownership by a registered proprietor of land.

17. In dismissing the Appellants' counterclaim, the Trial Court asserted that they failed to provide compelling evidence to justify granting the orders they sought. The Trial Magistrate explained that land parcel No. Mwerua/Gitaki/96 was partitioned according to a grant issued in the Kerugoya High Court Succession Cause No. 13 of 2013. He held that the Appellants did not prove that the Respondent acquired the land fraudulently, illegally, or through misrepresentation, which would justify the cancellation of the title under Section 26 of the Land Registration Act.

18. The Trial Court also noted that the prayers sought by the Appellants in their counterclaim could only be addressed within the ongoing succession cause, which was still pending before the High Court. Ultimately, the Trial Court concluded that the Respondent had successfully proved his case and issued a Judgment in his favour while he dismissed the Appellants Counterclaim.

19. The Appeal was canvassed through written submissions. The Appellants argued that the Trial Magistrate made both legal and factual errors when issuing eviction orders, despite the Appellants providing evidence that the subdivision of land parcel No. Mwerua/Gitaku/96 was unlawful. They asserted that the subdivision took place while there were existing inhibition orders issued by the Succession Court. The Appellants' counsel argued that the Trial Court failed to recognize that this subdivision was done in bad faith, as it occurred while the matter was still pending in the Succession Court, in which the Respondent was a participant.

20. The Appellants’ counsel further submitted that the eviction orders had significant implications and conflicted with the inhibition and status quo orders previously issued by the High Court in the Succession matter. Counsel further claimed that the Trial Magistrate did not adequately scrutinize the evidence on record, which demonstrated that the Appellants were entitled to protection as beneficial owners of the suit property. According to the Appellant’s Counsel, the subdivision of the original land parcel and the subsequent registration of the suit land in the Respondent's name were illegal and should be annulled under Section 26(1) of the Land Registration Act.

21. Additionally, the Appellants Counsel asserted that the Respondent unlawfully dealt with land parcel Mwerua/Gitaku/96. He submitted that the Appellants provided proof that the Respondent dealt with the original suit land despite being aware of the existing orders restricting any transactions involving it. Counsel further submitted that the Respondent transferred LR Mwerua/Gitaku/1853 to himself, knowing that the original suit land was generational land. He further argued that the Appellants had successfully challenged the Respondent’s title based on the existence of a customary trust. Counsel contended that the original suit land had been in the family for generations, and the Appellants had been residing on the property long before their grandfather’s death. Consequently, Counsel contended that neither the death of Elijah Ngari nor any subsequent events could extinguish the existence of the customary trust.

22. The Respondent filed his written submissions on 4th February 2025, addressing three key issues:1. Whether the Respondent is the lawful and registered proprietor of LR No. Mwerua/Gitaku/1853;2. Whether the order to vacate issued against the Appellants was merited and/or justified.3. Who bears the costs of the Appeal.

23. Regarding the first issue, the Respondent stated that he had submitted a certificate of search along with the certificate of title to establish that he is the absolute registered owner of the suit land. He explained that the certificate of confirmation of grant, which was issued on 11th July 2016 in Succession Cause No. 30 of 2013, confirmed his status as a legitimate beneficiary of his grandfather’s estate. He argued that he was entitled to a share of his grandfather’s estate as a representative of his parents' inheritance. The Respondent further stated that all beneficiaries consented to the mode of distribution, leading to the registration of the suit land in his name through transmission.

24. The Respondent acknowledged the ongoing application for the revocation of the grant confirmed on 11th July 2016. However, he asserted that this grant has not been revoked, and thus, the mode of distribution in Succession Cause No. 30 of 2013 remained valid. He pointed out that the original suit land was non-existent, while the resultant subdivisions are still valid. He accepted that the High Court issued inhibition orders to restrain the parties from engaging in any transactions related to the original suit land, which he however stated was addressed in the court's Ruling dated 19th October 2022. He concluded by asserting that he is the absolute registered proprietor who acquired good title by way of inheritance/transmission.

25. As for the second issue, the Respondent maintained that the order to vacate land parcel number Mwerua/Gitaku/1853 was lawful because the Appellants have unlawfully occupied his land. He requested that the Appellants bear the costs of the Appeal. In closing, he submitted that the evidence presented supported his position and prayed that the Appeal be dismissed with costs.

Analysis and Determination 26. This being an appeal of first instance, the Court is duty bound to appraise and re-evaluate the evidence tendered before the Trial Court to satisfy itself that the decision reached by the Lower Court was justified. This was in keeping with the principle enunciated in the Court of Appeal Case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123.

27. I have carefully reviewed the pleadings, Lower Court record, submissions by Counsel, and applicable Law. I distill the following issues for determination:1. Whether the Respondent was the lawful and absolute proprietor of land parcel No. Mwerua/Gitaku/1853. 2.Whether the Appellants established they had any overriding interests, including beneficial ownership or customary trust, over the suit land.3. Whether the subdivision and registration of the suit land violated any lawful orders or principles under the Land Registration Act or the Law of Succession.4. Whether the Trial Court erred in issuing eviction orders and dismissing the Appellant’s Counterclaim.5. What orders ought to issue, including on costs.

28. It is not in dispute that the Respondent is the registered proprietor of LR No. Mwerua/Gitaku/1853. He produced a title deed and a certificate of official search confirming he was the registered owner. Section 24(a) of the Land Registration Act, 2012, provides that:“The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”

29. The title of a registered proprietor may however be challenged on the limited grounds set out under Section 26(1)(a) & (b) of the Land Registration Act, 2012 on the grounds of fraud and/or misrepresentation or if it is demonstrated that the title was acquired unlawfully or illegally and/or through corruption.

30. The Trial Court correctly highlighted these provisions and concluded that the Respondent was the absolute owner of the disputed land. The Respondent however was registered as proprietor of land parcel No. Mwerua/Gitaku/1853 through transmission pursuant to a Confirmed Grant issued in Kerugoya HC Misc Succession Cause No. 30 of 2013 on 11th July 2016. This grant apparently is the subject of an application for Revocation in the said succession Cause which at the time of the hearing before the Lower Court had not been determined.

31. This Court on 13th March 2025 rendered a Judgment in the case of Richard Maina Ngombo –vs- Daniel Karani Kinyua (2025) KEELC 1168 (KLR) (Kerugoya ELC Appeal No. 34 of 2023) in an Appeal arising from Baricho Magistrate’s court ELC Case No. 14 of 2019 which related to the same original land parcel Mwerua/Gitaku/96 save that the subdivision was Mwerua/Gitaku/1855. In the Appeal the Respondent was a purchaser from the Administrators of the estate of Elijah Ngari alias Ngari Ngotho. The sale and transfer to the Appellant was effectuated pursuant to the grant confirmed by the High Court on 11th July 2016 in Kerugoya HC Misc Succession Cause No. 30 of 2013.

32. In the present Appeal like in the above Appeal, the succession matter pending before the High Court features prominently. At paragraph 31 of my Judgment in the case of Richard Maina Ngombo –vs- Daniel Karani Kinyua (supra). I rendered myself as follows:-31. As Kerugoya HC Misc Succession Cause No. 30 of 2013 has been extensively referred to in the Record of Appeal and by the parties, I suo moto sought to peruse the file to affirm the status of the Succession matter and the file was made available to me from the Registry. Having perused the succession file the following is the apparent status as per the file:-1. There have been numerous applications by various parties in the matter as the file oscillated between Kerugoya and Embu Law Courts. The file commenced as Kerugoya CM Succ. No. 262 of 2004, was transferred to Embu High Court and renumbered Embu HC Succ Cause No. 245 of 2007 and was again retransferred to Kerugoya High Court and renumbered Kerugoya HC Misc. Succession Cause No. 30 of 2013. 2.The Appellant with others vide a summons for Revocation of Grant dated 25th June 2018 applied to have the grant issued on 27th January, 2005 and confirmed on 11th July 2016 revoked and annulled. The Applicant’s also sought an order of inhibition of any transactions relating to LR Mwerua/Gitaku/96 and an interim inhibition order was granted on 27th June 2018 and was later confirmed by Lady Justice L. W. Gitari on 7th February 2019 pending the hearing and determination of the prayer for revocation and/or annulment of grant issued to Elizabeth Wambui Ngari and confirmed on 11th July 2016. 3.The summons for Revocation of Grant apparently was not heard as Justice Mwongo heard another Interlocutory application dated 10th April 2019 where the Applicants who again included the Appellant inter alia sought orders for inhibition against transactions relating to LR Nos. Mwerua/Gitaku/1852 to 1856 being the resultant subdivisions from LR. No. Mwerua/Gitaku/96; cancellation of the subtitles pending the hearing and determination of the summons for Revocation of Grant dated 25th June, 2018; and an order punishing the Respondent for disobedience of the order issued by the Court on 27th June, 2018 inhibiting any transactions in regard to LR Mwerua/Gitaku/96. 4.In the Applicants application dated 10th April 2018 the Applicants sought to have joined as Interested Parties Judy Wamuyu Macharia, Bernard Mwai Njiraini, Joseph Murimi Ngombo and Daniel Karani Kinyua (Respondents herein) who were the beneficiaries following the subdivision. The Judge ordered that they be joined to the succession suit and that they be served with the pleadings.5. The Applicants under prayer (6) of the application dated 10th April 2019 prayed for an order of stay of proceedings in relation to Baricho SPMC ELC Cases No. 12 of 2019, 13 of 2019 and 14 of 2019 pending hearing and determination of summons for Revocation of Grant dated 25th June, 2018.

33. The above extract is relevant to the instant Appeal as the Appeal touches on the same issues and relates to the same subject land that was the subject in ELC Appeal No. 34 of 2023.

34. The Respondent acquired the title to the suit land on the basis of the grant that was confirmed by the High Court on 11th July 2016 but which is now under challenge. If the summons for Revocation is successful, it would have implications on the assets of the deceased estate that may have been distributed in case the grant is invalidated. The root of the title held by the Respondent is under challenge and the determination of the pending summons for the Revocation of the Grant cannot be ignored.

35. In the Ruling by Hon. Justice Mwongo in respect of the application dated 10th April 2019 which was exhibited before the Trial Court, the learned Judge at paragraph 47 and 48 of the Ruling tellingly commented on the ELC Cases that were then pending before the Trial Court and which have precipitated in Appeals before this Court. The Judge stated thus:-47. These arguments are attractive, but as noted are untenable given that the orders would affect interested parties who are not parties to the present suit, but are parties to a suit in the ELC Courts to which the Applicants are also not parties. This would be absurd, and in addition, it is questionable whether this Court has supervisory jurisdiction over suits in the Lower Court relating to matter to which the ELC Courts have sole jurisdiction.48. Whilst it may be that the ELC cases were filed in bad faith and are potentially an abuse of the Court process since the subject parcels of land are the subject of the proceedings herein, I think the correct action would be for this Court not to intermeddle with those suits in the ELC Court for, amongst other reasons, jurisdiction challenges and violation of the right to be heard. As pointed out in the case of JMK –vs- MWK & Anor (2015) eKLR cited by the Respondent:-

36. The Respondent was issued title to the suit land on 17th July 2018 as per the copy of the title deed exhibited before the Trial Court. There is no dispute that land parcel No. Mwerua/Gitaku/1853 was a subdivision from land parcel Mwerua/Gitaku/96 which was the subject in the succession proceedings in HC Misc Succession Cause No. 30 of 2013. The Appellants with others had vide an application dated 25th June 2018 made before the Succession Court sought to have the grant issued on 27th January 2005 and confirmed on 11th July, 2016 revoked. On 27th June 2018 the Succession court issued an interim Order of inhibition prohibiting any transactions relating to land parcel Mwerua/Gitaku/96 pending hearing and determination of the prayer for Revocation of the Grant. Notwithstanding that there was an order inhibiting any transactions relating to land parcel Mwerua/Gitaku/96 the land was partitioned and the mutation registered on 1st July, 2018 and subtitles issued on 18th July, 2018. The Respondents to the application contended that they had not been served with the inhibition order before the land was partitioned and titles issued. Of relevance however is that the application for Revocation of the Grant that enabled the contested transactions is yet to be heard and determined.

38. The Respondent in the suit before the Lower Court claimed he was the lawful registered proprietor of the suit land and sought for an order for the forceful eviction of the Appellants from the suit land. In essence the Respondent’s claim was that the Appellants were trespassers on the suit land. The Appellants in their Amended Statement of Defence and Counterclaim contended that they were beneficial owners of the suit land which they were in occupation of and was the subject of the succession proceedings. The Learned Magistrate in his Judgment held that the orders that the Appellants sought in the Counterclaim could only be dealt with in the succession cause pending before the High court. The Learned Magistrate inter alia stated in his Judgment as follows:-“---- The Court however finds that the Defendants did not putforth cogent evidence which would warrant this Court to grant them the orders sought in the Counterclaim for the reason that the original land LR Mwerua/Gitaku/96 was partitioned pursuant to a grant issued in Kerugoya High Court Succession Cause No. 30 of 2013. The Defendants have failed to prove that the Plaintiff acquired the subject land fraudulently, illegally or through mispresentation which could support a case of cancellation of the said title under Section 26 of the Land Registration Act.It is my further view that the orders sought in the Counterclaim can only be dealt with in the succession cause which is pending before the High Court where the grant was issued which led to the subdivision of the original land giving rise to the subject land. It is thus my finding that the Plaintiff acquired the subject land legally through the succession case. The Defendants have therefore failed to prove their claims in the Counterclaim on a balance of probabilities against the Plaintiff. The Counterclaim must thus fail and is hereby dismissed.”

37. With respect, I think the Learned Magistrate misconstrued the significance of the succession cause that was pending before the High Court. The Magistrate acknowledged the Respondent acquired title to his land pursuant to the Grant that was issued in the succession case. The Appellants with others had applied to have that grant revoked and the application had not been heard and determined as at the time the suit before the Lower Court was heard. The procedure/process through which the Respondent acquired his title was under challenge and were the Appellants to be successful in having the grant revoked, that could lead to the title held by the Respondent being annulled. The root of the Respondent’s title was under challenge and it was necessary for the parties to have that challenge resolved.

40. The Court of Appeal in the case of Munyu Maina –vs- Hiram Gathia Maina (2013) eKLR held as follows:-“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.”

41. The legality of the grant that was utilised to process the title in favour of the Respondent is in question in the application by the Respondents in the Succession case where they seek its revocation. All the parties with an interest in land parcel Mwerua/Gitaku/96 and the resultant subdivisions LR Nos. Mwerua/Gitaku/1852 to 1855 have been enjoined as parties in the succession cause and in my view it is only in the Succession Court that the issue of entitlement to the suit property can be finally determined. The Appellants claim they are beneficiaries entitled to inherit from their grandfather and have been in occupation and possession of the land that the Respondent acquired transfer of through transmission. It is that transfer they contest in the succession cause. It is my view that the issues in contest before the Lower Court properly belonged to the Succession Court which will determine whether the Appellants were beneficiaries and/or whether the grant issued in the matter was legal.

42. In the premises upon evaluation of the Record of Appeal the evidence and submissions of the parties and the applicable law, it is my view the Learned Trial Magistrate erred in his analysis and evaluation of the evidence to reach the finding that the Respondent had proved his case on a balance of probabilities. It is my determination that in the face of the pending High Court Misc. Succession Cause No. 30 of 2013 neither the Respondent nor the Appellants as relates to the Counterclaim proved their respective cases. I allow the Appeal, set aside the Judgment of the Lower Court and substitute the same with an order dismissing the Respondent’s case.

43. Having regard to the circumstances of the case, I make no order for costs and each party will bear their own costs of the Appeal.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KERUGOYA THIS 15THDAY OF MAY 2025. J. M. MUTUNGIELC-JUDGE