https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1026

Munyi v Kimani & 9 others (Civil Appeal E014 of 2021) [2026] KECA 1026 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 1026 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal E014 of 2021 K M'Inoti, S ole Kantai & M Ngugi, JJA May 15, 2026 Between Titus Kigoro Munyi Appellant and Peter Mburu Kimani 1st Respondent Lucy Waitherero Mwangi 2nd Respondent Alice Njeri Mburu 3rd Respondent James Karanja Mwangi 4th Respondent Boniface Kimani Mwangi 5th Respondent Charles Ngunya Mwangi 6th Respondent Jane Waithira Mnambi 7th Respondent Esther Wambui Kiarie 8th Respondent Peter Machari Mwangi 9th Respondent Nelson Kibe Mwangi 10th Respondent (Being an appeal from the judgment and decree of the Environment and Land Court at Embu (Y. M. Angima, J.) dated 28th March, 2019 in ELC Case No. 51 of 2014) Judgment 1.This appeal arises from the judgment of the Environment and Land Court (ELC) in Embu (Angima, J.) dated 28th March regarding the ownership and title to land parcel number Mbeti/Gachoka/473 (hereafter “the suit property”). 2.In their plaint dated 17th October 2013, the respondents sought eviction of the appellant from the suit property, assistance of the Officer Commanding Station, Kiritiri Police Station, in enforcing the order, and the costs of the suit. The respondents’ case was that the 1st respondent, with his sister, Tabitha Muthoni (deceased), whose estate the 2nd to 10th respondents are beneficiaries of, had purchased the suit property from one Kangangi Kivinda during the land adjudication process in 1974; that there had been an objection with respect to the suit property which had been resolved in 1975 and the suit property registered in their favour; and that the appellant had occupied the land unlawfully. The respondents averred that the appellant’s claim in adverse possession had been heard and dismissed, both by the ELC in HCCC No. 63 of 2013 (OS) and by this Court on appeal in Civil Appeal No. 28 of 2014; and that an order should issue for his eviction from the suit property. 3.The appellant filed a defence and, later, a counterclaim dated 1st March 2017 pursuant to leave granted on 22nd February 2017. In the counterclaim in which the appellant was indicated as the 1st plaintiff and one Kiriamburi Thigari as the 2nd plaintiff, the appellant alleged that he had purchased the suit property from the Kamuvea clan for Kshs. 56,000; that the 1st respondent and Tabitha Muthoni had been registered as proprietors fraudulently; and that he was entitled to the suit land as he had been in open, uninterrupted and exclusive occupation thereof. He sought a declaration that he has an equitable right to the suit property by virtue of long, open and exclusive occupation even prior to the time of adjudication; that he should be registered as proprietor; and that the respondents’ names should be cancelled from the proprietorship section of the register. 4.In its decision, the ELC allowed the respondents’ claim as set out in their plaint and dismissed the appellant’s counterclaim, with costs to the respondents. 5.Dissatisfied with the decision, the appellant lodged the present appeal in which he raises 7 grounds of appeal in the Memorandum of Appeal dated 9th February 2021, contending that the trial court erred in law and fact in: not finding that the 1st respondent and his late sister, Tabitha Muthoni, acquired ownership of the suit property fraudulently, unprocedurally and illegally, and that the said acquisition did not therefore confer proprietary rights and/or any lawful title to them; not finding that the 1st respondent and his late sister purportedly acquired the suit property from a person who did not have proprietary rights or interest in the suit property and was therefore incapable of passing ownership or title to them; and in not finding that the appellant had an equitable right to the suit property by virtue of long, continuous, open and exclusive occupation and use of the suit property, starting from the period prior to the adjudication process, and is therefore entitled to registration as the proprietor of the suit property. 6.The appellant contends, further, that the trial court erred in entering judgment for the respondents against the weight of evidence, in dismissing his counterclaim, and in finding that the said counterclaim was statute barred and res judicata; holding that the appellant could not have acquired possessory rights over the suit property since he was a purchaser for value, yet he had occupied the suit property since 1970 without any interference from the respondents, and that his occupation and use of the suit property was therefore an overriding interest. 7.The appellant further contends that the trial court erred in not finding that the respondents were holding the title to the suit property in trust for him as “the Appellant had acquired a Constructive Trust to the said Land due to long occupation and use” and the respondents have never occupied or utilized the suit property; and in not finding that the appellant had proved his case on a balance of probabilities to warrant entry of judgment in his favour on the counterclaim. 8.He prays that his appeal be allowed; that the judgment of the ELC be set aside and substituted with an order that the registration of the 1st respondent and Tabitha Muthoni as the first proprietors of the suit property was fraudulent, illegal and unprocedural; that a declaration be issued that the appellant is the lawful proprietor of the suit property; and that the appellant be registered as the proprietor and be issued with a title deed to the suit property. 9.As this is a first appeal, as provided under rule 31(1)(a) of this Court’s Rules 2022, we are under a duty to re-appraise the evidence and draw inferences of fact. See also Selle v Associated Motor Boat Co. Ltd [1968] EA 123 with respect to our mandate as a first appellate court. 10.An undisputed fact relevant to the final determination of this appeal, to which we shall revert later, is that this is the second appeal before this Court pertaining to the ownership and title to the suit property, land parcel number Mbeti/Gachoka/473. The first was Civil Appeal No. 28 of 2014- Titus Kigoro Munyi v Peter Mburu Kimani, arising from the decision in ELC No. 63 of 2013 (OS)-Titus Kigoro Munyi v Peter Mburu Kimani. Both the OS and the appeal therefrom were determined in favour of the respondents herein. 11.In the present matter, the respondents, who were the plaintiffs before the ELC in ELC Case No. 51 of 2014 at Embu, asserted that the 1st respondent, Peter Mburu Kimani and his sister, Tabitha Muthoni (deceased), were the registered proprietors of the suit property; and that the 2nd to 10th respondents are the legal representatives and beneficiaries of the estate of the said Tabitha Muthoni. They further averred that the appellant, members of his family, servants and agents had entered upon and occupied the suit property without their authority and consent, and continued to stay and had caused considerable damage to the suit property. They therefore sought, inter alia, an order of eviction of the appellant from the suit property; the assistance of the OCS, Kiritiri Police Station in providing security, and for the costs of the suit. 12.The respondents further averred that the appellant had filed ELC No. 63 of 2013 (OS) claiming adverse possession of the suit property, but that the suit had been dismissed. An appeal therefrom, being Civil Appeal No. 28 of 2014, had also been dismissed by this Court. 13.The evidence for the respondents before the ELC was presented through the 1st and 2nd respondents, and the Assistant Director of Land Adjudication (ADLA) in Mbeere to whom summons were issued by the court. The evidence of the respondents was essentially a reiteration of their pleadings. The ADLA confirmed that there had been an objection during land adjudication with respect to the suit property; that the objection had been heard; and that a decision was made to have the land registered in the name of the 1st respondent and his sister, Tabitha Muthoni. 14.In his evidence, the appellant, who testified as DW1, also essentially reiterated the averments in his defence and counterclaim. He maintained that he had been in occupation of the property since 1970, prior to land adjudication and demarcation; that he had bought the suit land from three elders of the Kamuvea clan in 1973 for Kshs. 56,000; and that the respondents had acquired title to the suit property irregularly, fraudulently and unprocedurally. The appellant confirmed in his testimony that he had filed ELC Case No. 63 of 2010 claiming adverse possession of the suit property. 15.DW2, Kariamburi Thigari, the 2nd plaintiff in the counterclaim, stated that he had sold the suit property to the appellant, and that he sought to have the appellant declared the owner thereof. 16.The appeal came up for hearing before us on 14th October 2025 in the presence of learned counsel, Mr. Okwaro for the appellant, who indicated that the appellant would rely on his written submissions dated 8th October 2025. There was no appearance for the respondents, though duly served. They had also not filed submissions in opposition to the appeal. We shall therefore weigh the appellant’s appeal and his submissions against the evidence adduced before the trial court, and the conclusions reached by the court with respect thereto. 17.In his submissions, the appellant reiterates his evidence that he has been on the suit property since 1970, and that he bought it from the Kamuvea clan around the time of land adjudication in Gachoka. He further submits that his witnesses, one Floreozio Kivara and one James Mugo Muturi, a former teacher and agricultural officer and later Chief, respectively, had testified that he had been living on the suit land since 1970. We note from the record that these two were not called to testify, the record indicating that the appellant did not call three of his witnesses on the basis that they had filed witness statements which had been admitted by consent in the appellant’s earlier claim in ELC 63 of 2013 (OS) and had been taken into consideration in the subsequent appeal. 18.The appellant submits that it is undisputed that he is in occupation of the suit property or that the respondents have never occupied or utilized the suit property since it was registered in their names. He asserts that he has been in occupation since 1970, before the land adjudication and demarcation process commenced; that his name was in the Land Adjudication Register for the suit property; and that it is not clear how the respondents were registered as proprietors of the suit property in total disregard of his name being in the Register; and their names never having been entered in the said Adjudication Register, which is a requirement as part of the Adjudication process before title deeds are issued. 19.The appellant maintains that he has been in long, open, continuous and exclusive occupation of the suit property with (sic) the permission of the respondents; that such occupation and use was clearly contrary to and a gross limitation on the respondents’ exercise of their purported proprietary rights over the suit property; and that his occupation negates the respondents’ claim to proprietorship of the suit property. 20.The appellant refers to several documents submitted by the respondents, among them a letter dated 24th March 1973 from Kangangi Kivinda addressed to the Land Adjudication Officer, which the appellant submits states that Kangangi Kivinda had sold the suit property to the appellant; that Kangangi Kivinda was seemingly objecting to the registration of the suit property in the name of the appellant and wanted the land back as he had not been paid the full consideration; that there was also an Adjudication Register which indicates that the name of the appellant was in the Adjudication Register for parcel number 473 in Gachoka Adjudication Section together with the name of Kangangi Kivinda, with the appellant’s name being first in the Register. The appellant asserts that he clearly had an interest in the suit property as far back as 1973. He submits, therefore, that it cannot be true that he entered onto the suit property only in 2004 as alleged by the respondents. 21.According to the appellant, the fact that the respondents did not produce any Land Adjudication Register which contained the names of the 1st respondent and Tabitha Muthoni shows that their registration as proprietors of the suit property was irregular, fraudulent and had no legal basis. Further, that he was living on the suit property before the process of land adjudication and demarcation started; and that his occupation was long recognized as an overriding interest under section 30(g) of the now repealed Registered Land Act and section 28(h) of the Land Registration Act, 2012, at the time the land was registered in the names of the 1st respondent and Tabitha Muthoni. 22.The appellant cites the case of Wensley Baraza v Immaculate Awino Abongo (20l7) eKLR and Obiero v Opiyo [1972] EA 227 to support his contention that he had an overriding interest over the suit property. 23.It is the appellant’s submission, further, that the registration of the 1st respondent and Tabitha Muthoni was tainted by illegality and fraud. The appellant again relies on the adjudication records to support his contention that his name and that of Kangangi Kivinda appear in the Land Adjudication Register for the suit property, whereas the respondents’ names do not. His case is that this indicates that he was the rightful allotee, and the subsequent registration of the respondents was effected through an irregular alteration. 24.The appellant cites this Court’s decision in Funzi Island Development Limited & 2 Others v County Council of Kwale & 2 Others [2014] eKLR (Civil Appeal No. 252 of 2005) and Dina Management Limited v County Government of Mombasa & 5 Others [2021] eKLR for the proposition that even a registered title can be impeached if it was acquired through a corrupt scheme or in contravention of the law; and that indefeasibility of title is not absolute and does not protect fraud or illegality. He urges us to allow his appeal, set aside the ELC’s judgment, and enter judgment for him as prayed in the counterclaim. 25.We have considered the record of appeal and the appellant’s submissions. In our view, the appellant’s appeal raises three main issues. The first is whether the trial court erred in finding that the respondents were properly registered as the proprietors of the suit property in light of the appellant’s allegation of fraud. In reaching its decision on this issue, the trial court stated as follows:“The court has noted that even though the Defendant pleaded in paragraph 22A of his counterclaim that it was Kivinda who had “illegally, fraudulently and irregularly” sold the suit property to the Plaintiffs, the said Kavinda was not made a party to the proceedings. And surprisingly, the Defendant attributed particulars of the alleged illegality, fraud and irregularity to the Plaintiffs in paragraph 23A of the counterclaim. It is well settled in law that a court of law cannot make a finding on such serious allegations against a person who is not a party to such proceedings where such allegations are pleaded. There was no explanation given as to why the said Kivinda or his personal representative was not joined in the suit.” 26.The ELC noted that the appellant, while alleging fraud against the respondents, attributed the particulars of fraud by Kangangi Kivinda to the respondents. We have considered the appellant’s evidence and noted that other than the bare allegations of fraud made against Kivinda, there was no evidence of fraud established against the respondents. As is now well settled, the burden of proof on an allegation of fraud is higher than on a balance of probabilities, although not beyond reasonable doubt- see, for instance, Ndolo v Ndolo (Civil Appeal 128 of 1995) [1996] KECA 209 (KLR) (10 May 1996) (Judgment). In this case, there was no iota of evidence on the basis of which a finding that the respondents were registered as proprietors fraudulently could be made. 27.The second issue relates to the appellant’s contention that the court erred in not finding that he had an overriding interest in the suit property. He submits that his overriding interest arises by virtue of long occupation, pursuant to the provisions of section 30(g) of the repealed Registered Land Act and section 28(h) of the Land Registration Act. Section 30(g) of the repealed Registered Land Act, a provision now echoed in section 28(b) of the Land Registration Act, defined overriding interests to include ‘(b) trusts including customary trusts’ and 28(h) on ‘rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription’. 28.In its decision, the trial court observed as follows with respect to the appellant’s argument that he had an overriding interest in the suit property:“28.The Defendant, however, appears to have changed tact (sic) in his written submissions. It was submitted that the Defendant had acquired an overriding interest over the suit property which did not require to be noted in the land register. The court finds this to be a very curious submission for the following reasons. First, it was never pleaded in the counterclaim that the Defendant had an overriding interest over the suit property. Second, there was no prayer in the counterclaim claiming any declaration to the effect that the Defendant had a vested overriding interest over the suit property. What the Defendant sought in the counterclaim was very clear and straightforward. It was to be registered as proprietor of the suit property by virtue of equitable rights arising from his open, exclusive and continuous occupation.” 29.We set out earlier in this judgment the averments and prayers sought by the appellant in his counterclaim. Neither in his pleadings nor in evidence before the trial court did he raise the issue of having an overriding interest over the suit property. As the trial court observed, the issue of an overriding interest was only raised in the submissions. It has also been made a central issue in the submissions before us. Even had it been pleaded in the counterclaim, however, we are satisfied that the trial court properly addressed its mind to it, on the authority of Kiebia v M’lintari & another (Petition 10 of 2015) [2018] KESC 22 (KLR) (5 October 2018) (Judgment), and found that the appellant could not claim an overriding interest over the suit property under section 30(g) of the repealed Registered Land Act when such rights, as the Supreme Court held in Kiebia v M’lintari & another, mean rights in customary law. 30.Our understanding of this finding by the trial court, with which we agree, is that the appellant had not claimed, and was not entitled to claim, the suit property under customary law as a member of a family clan or group, which would create in his favour a customary trust as against the respondents, the registered proprietors of the suit property. As the Supreme Court stated in Kiebia:“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 land2.The claimant belongs to such family, clan, or group3.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. 31.The claim of an overriding interest is a reflection of the versatility with which the appellant’s case mutates. In his counterclaim and in the evidence before the trial court, the appellant contended that he had purchased the suit property from three members of the Kamuvea clan of the Mbeere tribe, the purchase price thereof being Kshs. 56,000, apparently paid by educating a son of one of the elders. He did not at any point claim that he was a member of the clan. The appellant could not be a purchaser for valuable consideration, and at the same time be entitled to the suit property by virtue of an overriding interest. The overriding interests to which land is subject were set out in section 30 of the repealed Registered Land Act and, currently, in section 28 of the Land Registration Act, 2012. They do not include the rights of a purchaser. 32.The final issue is whether the trial court erred in finding that the appellant’s claim over the suit property by virtue of long occupation was res judicata. In this regard, we observe that the appellant gets full marks for persistence. If persistence, however misadvised, on its own, could establish a claim, he would succeed. However, it does not, and this appeal turns, ultimately, as should have the entire claim in his counterclaim before the ELC, on the determination of one issue that was identified by and addressed by the trial court as follows:“22.Apart from the Defendant’s failure to prove his claim to the suit property on the basis of the evidence on record, it is doubtful if, as a matter of law, the Defendant should be allowed to prove such a claim. It is on record that the Defendant had filed a claim for adverse possession of the suit property against the 1st Plaintiff in previous proceedings. The claim failed before both the Environment and Land Court and the Court of Appeal. It must be remembered that a claim for adverse possession is not a challenge to the validity or legality of the proprietor’s title. It is, in fact, an admission that the registered proprietor is the owner of the suit property coupled with a plea that his title thereto has been extinguished by operation of law on account of adverse possession.23.So, if the Defendant acknowledged the Plaintiff’s title in the previous proceedings how, then, can he be allowed in subsequent proceedings to challenge that title on account of alleged fraud and illegality? And why should he be allowed to plead and swear that he was, in fact, the legitimate owner of the suit property all along? The court is of the view that the two claims by the Defendant are totally inconsistent with each other. Whereas, a litigant who has unsuccessfully claimed ownership may subsequently seek adverse possession thereof, a claimant who has lost his claim for adverse possession cannot, in my view, subsequently mount a claim for ownership on the same state of facts.” 33.We agree with the reasoning of the trial court above. The appellant does not dispute the fact that he had filed a claim in adverse possession against the respondents. He even relied, as part of his evidence before the ELC, on the witness statements filed in the Originating Summons the subject of appeal in Civil Appeal No. 28 of 2014. 34.His averment in the defence to the respondents’ suit for his eviction was that he had lodged an appeal against the decision of the ELC dismissing his claim, and the appeal was still pending. He was not forthright in his averments since, at the time he filed his counterclaim in 2017, this Court had already heard and, by its judgment dated 24th February 2015, dismissed his appeal. 35.Having failed in his claim in adverse possession, the appellant is precluded by the doctrine of res judicata from re-litigating issues pertaining to ownership and title to the suit property. 36.The result of our analysis above is that we are satisfied that the trial court properly allowed the respondents’ claim and dismissed the appellant’s counterclaim. We accordingly uphold the judgment and orders of the trial court and dismiss the appellant’s appeal with costs to the respondents. DATED AND DELIVERED AT NYERI THIS 15TH DAY OF MAY, 2026K. M’INOTI......................................JUDGE OF APPEALS. ole KANTAI......................................JUDGE OF APPEAL MUMBI NGUGI......................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar