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Court of AppealDismissedCivil Appeal No. 105 of 2020

Ndege Ndembu v James Muriithi Kareu

Court of Appeal
25 September 2026
2,163 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal confirmed that a son who properly substituted his deceased father in a land case can sue, and that family land held in trust must be shared equally.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Nyeri against the judgment of the Environment and Land Court at Kerugoya (Cherono, J.) delivered on 29th May 2020 in E.L.C. No. 49 of 2015, in which the original plaintiff, Kareu Ndebu (since deceased), successfully claimed that his brother, the appellant Ndege Ndembu, held land parcel L.R No. Baragwe/Raimu/237 in trust for himself and the deceased. The ELC declared the trust and ordered the Land Registrar, Kirinyaga, to subdivide the land into two equal shares and rectify the register. The appellant raised seven grounds, principally that the respondent (the deceased's son) lacked locus standi because he had not taken out full letters of administration; that the Judge determined unpleaded issues; that pleadings were filed by a 'quack' advocate contrary to the Advocates Act; and that the judgment was otherwise erroneous. The Court of Appeal, coram M'Inoti, ole Kantai and Ali-Aroni JJ.A, dismissed all grounds. It held that the respondent, having obtained a limited grant ad litem in Kerugoya Succession Cause No. 230 of 2017 and leave to substitute the deceased plaintiff, legally acquired locus standi. The Judge had not strayed beyond the pleaded trust issue. The 'quack' advocate complaint was raised for the first time on appeal and could not be entertained. Affirming the trial court, the court dismissed the appeal with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent had locus standi to prosecute the suit after substitution following the original plaintiff's death
  2. 2.Whether the ELC Judge made findings on points not pleaded or argued
  3. 3.Whether pleadings filed by an allegedly unauthorised ('quack') advocate vitiated the defence
  4. 4.Whether the appellant held the suit land in trust for himself and the respondent

Key legal issues

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01

Locus standi of the substituted plaintiff

Holding

The respondent, having taken out succession proceedings, obtained a limited grant ad litem and been granted leave to substitute the deceased plaintiff, was a proper party with locus standi.

Reasoning

The original plaintiff died before prosecuting the suit. The respondent followed the required legal process: succession proceedings at the Chief Magistrate's Court, a limited grant of letters of administration ad litem, and leave of the ELC to substitute his deceased father. He named his siblings in the succession application. The complaint about locus standi therefore had no merit.

p. 8
02

Findings on unpleaded points

Holding

The ELC Judge did not deviate from the pleaded issue; the claim was whether the appellant held the land in trust, and findings were confined to it.

Reasoning

The court reviewed the whole record and found the only issue identified and determined by the ELC Judge was whether the appellant held the suit land in trust for himself and the respondent. No deviation from the pleadings was found, so the complaint failed.

p. 10
03

Pleadings allegedly filed by a 'quack' advocate

Holding

The point was never raised at the ELC, no finding existed on it, and it could not be raised for the first time on appeal.

Reasoning

The appellant had terminated his advocate's services and thereafter filed documents in person, but nowhere in the proceedings below did he challenge the statement of defence's authority or seek to amend it. Proper complaint channels existed and the issue could not be introduced at appellate level.

04

Trust over the suit land

Holding

The ELC's finding that the appellant held the suit land in trust for himself and the respondent was correct and was affirmed.

Reasoning

On review of the evidence, the appellant's own testimony confirmed the deceased lived on the land with his family, was buried there after a court order, and was not given any other land. The trial Judge's declaration of trust and order for equal subdivision and rectification of the register were upheld.

p. 12

Legal principles established

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  • A first appellate court's mandate is to reappraise the evidence and draw inferences of fact, effectively retrying the case
  • A party who obtains a limited grant ad litem and is granted leave to substitute a deceased plaintiff legally acquires locus standi
  • An issue concerning the authority of an advocate who filed pleadings cannot be raised for the first time on appeal

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Judgment of the ELC (declaration of trust and order for subdivision and rectification of register) affirmed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Kerugoya
E.L.C. No. 49 of 2015
Jurisdiction invoked
First appeal under rule 31 of the Court of Appeal Rules, 2022

Relief refused

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Setting aside the ELC judgment and entering judgment for the appellant

No merit in any of the seven grounds of appeal; the Judge's findings on trust were correct

p. 12

Costs

Appeal dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Our mandate in a first appeal as donated by rule 31 of the Court of Appeal Rules, 2022 is to reappraise the evidence and to draw inferences of fact; to retry the case.
p. 1Mandate of a first appellate court
That was the legal process required and the respondent became a proper party to the suit after being granted leave to be the plaintiff in the suit. He legally acquired locus standi.
p. 8Locus standi of substituted plaintiff
That issue cannot, in any event, be raised at the appellate level.
p. 12New issues on appeal
We find no merit in this appeal which we dismiss with costs to the respondent.
p. 12Final orders - disposition

Issues in the judgment

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minor

Filing date of appellant's statement given inconsistently as 2011 and 2017

minor

Gap between hearing date (30 September 2025) and delivery date (25 September 2026) unexplained

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ndege Ndembu v James Muriithi Kareu", Case Analysis (2026). Civil Appeal No. 105 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1756/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.