https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4410

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLA E041 OF 2025** **JOHN KAMAU THUKU………………..…………………..……………………..…1ST APPELLANT** **SAMUEL NJUGUNA THUKU……………………………………….……….……..2ND APPELLANT** **VERSUS** **ALEX MAINA THUKU…………………………………………………….………1ST RESPONDENT** **PATRICK IRUNGU THUKU…………………………………………….……….2ND RESPONDENT** **THE REGISTRAR OF LANDS, MURANG’A ………………………….………..3RD RESPONDENT** **THE ATTORNEY GENERAL………………………………………..……………4TH RESPONDENT** ***(Being an Appeal against the Judgement and/or orders of the Honourable Senior Principal Magistrate M.K. Mutegi made on the 16th October 2025 in Kangema MCELC No. E008 of 2021)*** **JUDGMENT** 1. In the memorandum of appeal dated 31-10-2025 the Appellants seek the following orders. * 1. **That this appeal be allowed.** 2. **That the judgment and orders issued on 16-10-2025 be set aside and/or varied as the Court may deem fit.** 3. **That in the alternative, the suit in the subordinate court be allowed as prayed and/or in the terms of the judgment of the Court dated 2-2-2023.** 4. **That the costs of this appeal be provided for.** 2. The Appellants have raised eleven (11) grounds of appeal. They are as follows. 3. **That the learned Magistrate ignored clear and open evidence that the Appellant were the legal representatives of the estate of Rahab Wamaitha Thuku (deceased) vide grant of letters of administration issued in Kangema SPMCC Succession Cause No. 126 of 2020 which was produced as exhibit No. 4 in the Appellants’ bundle of documents and thus fell into serious error of judgment.** 4. **That the learned magistrate in ignoring the clear and unequivocal evidence in the Appellants' written witness statement that “on 11th February 2021, I was granted limited letters of administration for the purposes of filing suit vide this court’s Succession Cause No. 126 of 2020”, shows that the trial court had a premeditated direction and thus arrived at the wrong decision.** 5. **That the learned magistrate did not consider the Plaintiffs' submissions and there is no iota of evidence that the court looked at the legal submissions which tended to go to the route(sic) of the suit.** 6. **That the trial Court failed to appreciate that a party who intends to rely on a document at the trial had the duty or obligation to produce evidence to support such document and burden of proof lay with the Respondents to prove the authenticity of the said document in shifting the burden of proof to the Appellants, the court fell into grave error.** 7. **That the trial Court misapprehended the evidence of the 3rd Respondent to attempt to justify the narrative that the transfer to the 1st Respondent was regular yet in the absence of the documents to support entry No. 6, the 3rd Respondent was unable to attest to authenticity of the transfer to the 1st Respondent.** 8. **That the court failed to appreciate the evidence of the 3rd Respondent that in the parcel file held at the Lands Office, there was no document in support of the transfer made under entry No. 6 in the Register and there was no corroboration as found by the court.** 9. **The Trial Court failed to appreciate that in the absence of proper execution of the transfer documents, proof of payment of stamp duty and booking of the documents for registration, the Appellants had established fraud on the part of the Respondents.** 1. **That the trial court took into consideration extraneous matters and did put a lot of weight on the previous conduct and suits or applications which were irrelevant and thus arrived at the wrong conclusion.** 2. **That the trial court ignored the submission of the Appellants that there was no judgment to set aside by the Respondents as the judgment dated 2nd February 2023 had been executed and the court had become *functus officio.*** 3. **That the learned magistrate misdirected himself in renewing the Application to set aside the judgment and issuing consequential orders to defeat the Appellants’ submissions that the court was *functus officio,* judgment having been executed and nothing remained at all.** 4. **That the trial Court's conclusion that the court had allowed the setting aside of the judgment dated 2nd February 2025 together with consequential orders will affect an executed judgment was clearly erroneous and afterthought which cannot divest the appellants accrued rights.** 5. The facts of the case according to the Appellants who were the Plaintiffs in the lower court case are as follows. Firstly, the Appellants and the 2nd Respondent and the Children of Harrison Thuku Kamau and Rahab Wamaitha Thuku while the first Respondent is a grandson. The first Respondent is a son of one of the Appellants’ sisters. Harrison Thuku Kamau owned L.R. No. Loc.9/Kanyenyaini/50 which measured 3.48 Ha. Rahab Wamaitha Thuku as the adminsitratix of the estate of her husband and with the consent of her Children subdivided and distributed L.R. No.50 as follows. * 1. **Rahab Wamaitha Thuku Loc.9/Kanyenyaini/2344.** 2. **John Kamau Thuku- Loc.9/Kanyenyaini/2347.** 3. **Samuel Njuguna Thuku – Loc.9/Kanyenyaini/2346.** 4. **Patrick Irungu Thuku - Loc.9/Kanyenyaini/2345.** 5. **Mary Njoki Karuri - Loc.9/Kanyenyaini/2343.** 6. Secondly, after the death of Rahab Wamaitha Thuku, it was understood that L.R. NO. 2344 registered in her name would be inherited by her sons only. To the surprise of the Appellants in August 2020, they discovered that the Respondents had conspired with the each other to have the said parcel registered in the names of the 1st and 2nd Respondents and the 1st Respondent was in actual occupation of the suit land which he was exploiting by harvesting tea and trees. The 1st Respondent was occupying Rahab Wamaitha’s house and had also constructed another house. 7. Thirdly, the dispute had been reported to the Police who carried out investigation and found out that the transfer of the land to the 1st and 2nd Respondents was done illegally. The transfer instrument alleged to have been witnessed by T.M. Njoroge advocate did not have a date, stamp duty had been paid on the 21st of November 2012 when Rahab Wamaitha Thuku was in hospital and incapacitated by old age, the thumb print on the transfer form is a forgery as is the application for the consent of the Land Control Board which is also undated. Other irregularities include the following. The application for official search dated 1-2-2011 was made by the 2nd Respondent which shows a conspiracy and the booking of the transfer made on 14-11-2012 is a forgery. When the Appellants issued a notice of intention to sue to the Honorouble the Attorney General, the AG summoned the Appellants and informed them that there were no records transferring the land. The Appellants were told to ask the first Respondent to return the title deed for cancellation but they turned hostile to the Appellants and to the AG. Finally, the Respondent would not have been given the suit land secretly without Rahab Wamaitha informing all her children. 8. The facts of the case according to the 1st and 2nd Respondents are as follows. One, the Appellants are not the only children of their parents. There are other children who include Mary Njoki Karuri, Florence Wambui and Hellen Nyambura Thuku. The estate of the deceased comprised of other property which the Appellants have not mentioned such as Loc. 9/Kanyenyaini/1266, KCB shares, Kihoto Investment shares, Makadara Group Shares, Muramati Tea Growers Sacco shares and Kenya Airways shares. Two, Rahab Wamaitha Thuku did not subdivide the suit land as alleged. Instead, it was distributed by the Court upon confirmation of the grant. Three, Rahab as the owner of L.R. No. 2344 transferred it to the 1st Respondent during her lifetime and the Appellants were aware of this and that is why on 5-2-2013, the 1st Appellant registered a caution over the land. He did not suddenly discover the alleged fraud in August 2020. Four, the alleged fraud was investigated by the DCI at Murang’a and found to be baseless. Five, before the filing of Nairobi High Court Succession Cause No. 2594 of 2007, the 1st Appellant had objected to Rahab being issued with a grant to the estate of her husband. The 1st Appellant was not in good terms with his mother because he was opposed to everything that she was doing with respect to the estate of her husband. The 1st Appellant claimed entitlement to the suit land with the sole aim of selling it. 1. The facts of the case according to the 3rd and 4th Respondents are as follows. Firstly, they deny all the material averments in the Appellants’ claim including fraud on their part. Secondly, all the suit parcels were registered on the strength of documents presented by the parties to the registry and after the 3rd Respondent exercised due diligence and acted in the belief that the documents presented were genuine. The third Respondent therefore acted professionally. Finally, the entries made in the register in respect to the suit land bear the genuine signatures of a known Land Registrar and before 2021, all the documents in support of land transactions were in order but the scanning that happened may have resulted in loss and misfiling of some documents. 2. On 2-2-2023, the court entered judgment in favour of the Appellants. Later on, 20-11-2023, the said judgment was set aside at the application of the first and second Respondents who had not been heard. It would seem that the judgment dated 2-2-2023 was implemented in favour of the Appellants. 3. In his judgment dated 11-9-2025, the trial magistrate dismissed the Appellants’ suit for the following reasons. Firstly, the Appellants did not produce any authority or consent of the other beneficiaries to prosecute the suit on their behalf. Secondly, the first Appellant was unable to prove that he discovered the alleged fraudulent registration on the first Respondent as the owner of the land in August 2020 yet in February 2013, he had registered a caution against the same land. Thirdly, the Appellants were unable to prove their case to the standard of proof in fraud cases where the standard is higher than a margin of probabilities but not beyond reasonable doubt. Such failure included inability to demonstrate that the thumb print of the deacesed on the transfer form was a forgery and this applied to the other documents alleged to have forged. Finally, the registration of the 1st Respondent as the registered owner of the suit land was reinstated. 1. Counsel for the parties filed written submissions dated 1-4-2026 and 4-6-2026. Unfortunately, none of the learned framed any issues for determination. In the absence of any such issues, the court will frame the issues proceeding under Order 15 rule 2 of the Civil Procedure Rules which provides as follows. **“The Court may frame the issues from all or any of the following materials-** * + 1. **allegations made on oath by the parties, or by any persons present on their behalf, or made by the advocates of such parties;** 2. **allegations made in the pleadings or in an answers to interrogatories delivered in the suit;** 3. **the contents of documents produced by either party.”** The issues in this case will be found in the eleven grounds of appeal, in the pleadings and the evidence adduced by the parties and the judgment of the Court and especially the findings. The primary source remains the grounds of appeal. The following issues arise. 1. **Whether the Appellants were legal representatives of the estate of Rahab Wamaitha Thuku just because they had a limited grant in Kangema SPMCC Succession Cause No. 126 of 2020**. 2. **Whether the alleged failure by the trial magistrate to consider the Appellants’ submissions has any effect**. 3. **Whether it was the Appellants or the Respondents who were to prove that the documents alleged to be forged were authentic.** 4. **Whether the Court became functus officio after the judgment of 2-2-2023.** 5. **Whether the alleged fraud was discovered in February 2013 or August 2020.** 6. This being a first appeal, this court must reconsider the evidence of the lower Court, evaluate it itself and draw its own conclusions though it should always bear in mind that it neither saw nor heard the witnesses and made due allowance in that respect. In particular this Court is not bound to necessarily follow the lower Court’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances that ought to have been considered. See **Selle and Another vs. Associated Motor Boat Co. Ltd and others [1968] EA 123.** 7. Regarding the first issue, I find that the Appellants did not institute the lower Court suit on behalf of the estate of Rahab Wamaitha Thuku. If that were the case they would have had the written consent of all the Dependants of the estate. The limited grant issued in Kangema SPMCC Succession Cause No. 126 of 2020 was not for the benefit of the estate of the deceased but for the benefit of the Appellants only. In fact it was against some of the co-dependants. All the Plaintiffs for whose benefit the limited grant was issued should have given their authority as required by Order 1 rule 13 of the Civil Procedure Rules because the parties to this case are not the only dependants of the deceased. Since the suit land was not in the name of the deceased, no suit could be instituted in her name. The moment the Appellants claimed to represent the estate of the deceased, they required the consent of all their siblings. It is my finding therefore that the Appellants instituted this suit in their private capacities and not on behalf of the estate of their deceased mother because she had no estate anyway. 8. On whether the outcome a case depends on submissions, it is my finding that submissions by counsel for the parties or the parties themselves do not constitute evidence and therefore do not determine a case. They are intended only to persuade the court on the basis of evidence already on record. See **Daniel Toroitich Arap Moi Vs. Mwangi Stephen Muriithi** and **another 2014 eKLR.** The counsel should have stated the particular evidence that was disregarded or the issue that the court ignored that would have changed the outcome of the case. This has not been done. 9. **Section 26(1)** of the **Land Registration Act** provides as follows. **“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as the proprietor of the land is the absolute and indefeasible owner** …” Section 107 (1) of the Evidence Act provides as follows- “**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.”** Applying the above principles of law to this case, it is the 1st and 2nd Respondents who are taken by the courts to be the owners of the suit land. That is the starting point. It is the Appellants who stand to fail if no evidence is adduced in this case because they are the ones who seek judgement against the 1st and 2nd Respondents. The burden of proof is therefore squarely on the Appellants to prove that the 1st and 2nd Respondents committed fraud to get registered as the owners of the suit land. In the case **of Ndolo vs. Ndolo Civil Appel No. 128/1995** the Court of Appeal held in part- **“ It was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of fraud, the standard of proof was obviously higher than that required in ordinary civil case, namely, proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond reasonable doubt as in criminal cases.”** In this case, it was obviously wrong for the Appellants to expect the 1st and 2nd Respondents to prove that there was no fraud on their part in their registration as the owners of the suit. There was no such burden on she Respondents. The evidence of the Land Registrar vindicated the 1st and 2nd Respondents when she said that the absence of records in the registry could be blamed on what she called misfiling. She added that the entries in the register were all signed by a Registrar who was known to her or one who she recognized. Where then is the fraud on the part of the 1st and 2nd Respondents? I find none proved. It was upon the Appellants to call witnesses to prove that the signatures and the thumbprints on the documents complained about were not made by the authors. The evidence of T.M. Njoroge advocate is missing. Also missing is the evidence of the documents examiner and the Chairman of the Land Control Board. Only that evidence given against the Respondents and found by the Court to be credible could have helped the case of the Appellants. 1. For the court to be said to be *functus officio,* it must exhaust its jurisdiction over a matter in such a manner that it cannot re-open it, revisit it or alter the decision except as permitted by law. In this case the judgment dated 2-2-2023 was not final. The Respondents had not been heard by the Court at all. Yet under Article 50(1) of the Constitution, they are entitled to a fair hearing. Again under Order 10 rule 11 of the Civil Procedure Rules exparte judgments can be set aside upon such terms as are just. In this regard the Court has wide discretion. Under Order 45 of the same rules, a judgement can set aside, varied or reviewed if a certain threshold for review is met. It is therefore incorrect to say that the court became *functus officio* on 2-2-2023. It did not. It had the mandate to set aside the judgment of 2-2-2023 and any consequential orders. 2. Finally on when the alleged fraud was discovered, I find that it was before 5-2-2013. This is the date when the 1st Appellant registered a caution against the suit land. By then, the land was already registered in the name of the 1st Respondent. The averment at paragraph 7 of the 1st Appellant witness statement at page 9 of the record of appeal where he states **“…That to our surprise on or about August 2020 we discovered that the Defendants conspired to have the land registered in the name of Alex Maina Thuku…”** cannot be true. 1. In conclusion and for the reasons given, I find no merit in the appeal dated 31-10-2025. I dismiss it with costs to the Respondents who will also have the costs of the lower court case. **It is so ordered.** **Dated, Signed and Delivered virtually at Murang’a this 14th day of July, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant – Antony** **Appellants’ Counsel – Mr Kerongo** **1st and 2nd Respondents’ Counsel – Mr Timothy Kariuki**