Muriithi (Suing as the guardian ad litem of Grace Wangari Mwangi) v Mwangi (Environment and Land Appeal 85 of 2023) [2024] KEELC 7057 (KLR)

The Appellant argued the dispute was a partition matter for the Land Registrar under Section 94 of the Land Registration Act. The court held the pleadings showed the Appellant disputed the capacity and circumstances under which the Respondent was registered as co-owner, so the dispute required judicial adjudication of property rights and entitlement and could not be effectually determined by the Registrar through partition proceedings.

The trial court relied on payment receipts in Muiga's name dated 1973 and 1976, doubted the authenticity of the Appellant's letters not on the company's letterhead, and noted no company witness was called to support the claim that Samuel was the original owner. The first appellate court found this fully consistent with the oral and documentary evidence and held the claim proved on a balance of probabilities.

The Respondent's claim and the Appellant's counterclaim were mutually exclusive since the court could only find either Muiga or Samuel as original allotee. Having affirmed the finding that Muiga was the original allotee, the counterclaim, founded on initial ownership by Samuel, could not stand and was rightly dismissed for want of proof to the required standard.

The general rule under the proviso to Section 27 of the Civil Procedure Act is that costs follow the event. However, exercising discretion, the court noted the parties are close relatives and considered the need for reconciliation and harmony between the two families of Muiga, and therefore directed each party to bear their own costs of the appeal.