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ELCAllowedMeru HCCA No. 44 of 1990 (appeal arising from Meru SRMCC No. 348 of 1986, as referenced in the record)· [2025] KEELC 5529 (KLR)

Mucheke & another (Suing as the Legal Representative of the Estate of Genesio Murungi (Deceased)) v M’Miriti & another (Environment and Land Appeal E008 of 2023) [2025] KEELC 5529 (KLR)

Environment and Land Court
24 July 2025
7,992 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Meru against the Judgment of the Learned Trial Magistrate delivered on 29th June 2023, which had dismissed the Appellants' suit seeking removal of a Caution over Plot No. 23C Kiangua Market and instead allowed the 1st Respondent's Counter-claim seeking a declaration that the sub-division of Plot No. 23A and transfer of Plot No. 23C to the Appellants was fraudulent, null and void. The court identified four issues: whether the Counter-claim was barred by res judicata; whether it was barred by the Limitation of Actions Act; whether fraud was proved to the requisite standard; and whether the Appellants proved their claim. On res judicata, the court held that the Appellants failed to produce the judgments and proceedings in the previous suits (Meru SRMCC No. 348 of 1986 and Meru HCCA No. 44 of 1990) necessary to establish all conjunctive ingredients under Section 7 of the Civil Procedure Act. On limitation, the court held that the plea was not raised in the pleadings and could not be argued on submissions alone, invoking Order 2 Rule 4 of the Civil Procedure Rules, 2010. On fraud, the court found the 1st Respondent failed to distinctly prove fraud to the intermediate standard, as the certified Council minutes of 1984 confirmed a lawful sub-division at the instance of Joshua Miriti, and the 1st Respondent delayed complaining until 2016 despite claiming discovery of fraud in 2006. The court accordingly departed from the trial court's factual findings, allowed the appeal, set aside the judgment of 29th June 2023, entered judgment for the Appellants in terms of the Plaint dated 31st August 2018, ordered removal of the Caution over Plot No. 23C, dismissed the Counter-claim, and awarded costs of the appeal and of the subordinate court suit and counterclaim to the Appellants.

Key legal issues

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01

Whether the 1st Respondent's Counter-claim was barred by res judicata

Holding

Not barred: the Appellants failed to produce the judgments and proceedings in Meru SRMCC No. 348 of 1986 and Meru HCCA No. 44 of 1990 necessary to prove res judicata.

Reasoning

The party pleading res judicata must produce the pleadings, proceedings and judgment in the previous suit and establish all ingredients under Section 7 of the Civil Procedure Act conjunctively. The Appellants only produced a plaint, a chamber summons, a bill of costs and payment acknowledgements. Without the judgments, the court could not ascertain what was determined previously, so the plea failed.

p. 10
02

Whether the Counter-claim was statute-barred under Section 4(2) of the Limitation of Actions Act

Holding

The limitation plea was not available because it was never pleaded in the Defence to the Counter-claim.

Reasoning

Order 2 Rule 4 of the Civil Procedure Rules, 2010 mandatorily requires a plea of limitation to be raised by way of pleadings. The Appellants' Reply and Defence to Counter-claim dated 25th March 2022 made no mention of limitation. Submissions cannot substitute pleadings or evidence, so the limitation argument in submissions was misconceived.

p. 10
03

Whether the 1st Respondent proved fraud in the sub-division and transfer of Plot No. 23C

Holding

No: fraud was not distinctly proved to the requisite intermediate standard; the court departed from the trial court's finding.

Reasoning

The burden of proving fraud lay on the 1st Respondent and the standard is higher than the balance of probabilities. The Council minutes of 23rd October 1984 and 19th December 1984, whose authenticity was unchallenged and confirmed by DW1, showed the sub-division was undertaken at the request of Joshua Miriti. The 1st Respondent produced no minutes of a 2006 sub-division and lodged no complaint until 2016 despite claiming discovery in 2006.

p. 13
04

Whether the Appellants established their claim to Plot No. 23C Kiangua Market

Holding

Yes: the Appellants proved ownership and were entitled to exclusive possession, and the Caution against the plot fell away.

Reasoning

The totality of the evidence, including the certified Council minutes of 1984, the rates receipts and the unchallenged letter dated 7th October 2016 from the Commission on Administrative Justice, demonstrated that Plot No. 23A was lawfully sub-divided into three portions including 23C. DW1, the County Government's only witness, confirmed the documents, and no compelling reason existed to reject that evidence.

p. 14

Legal principles established

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  • A plea of res judicata must be proved by production of the pleadings, proceedings and judgment in the previous suit; all ingredients under Section 7 of the Civil Procedure Act must be established conjunctively.
  • A plea of limitation must be expressly pleaded; it cannot be raised for the first time in submissions.
  • Fraud must be specifically pleaded and distinctly proved to a standard higher than the balance of probabilities but below beyond reasonable doubt; it cannot be inferred from the facts.
  • A first appellate court may depart from the factual findings of the trial court only on defined grounds, including where the findings were based on no evidence or a misapprehension of the evidence.

Court orders

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  1. 1.The Appeal be and is hereby allowed
  2. 2.The Judgment of the Learned Trial Magistrate dated the 29th June 2023 be and is hereby set aside
  3. 3.In lieu thereof, Judgment be and is hereby entered in favour of the Appellants and in terms of the Plaint dated the 31st day of August 2018
  4. 4.The Caution registered against Plot No. 23C Kiangua Market be and is hereby vacated and/or removed
  5. 5.The 1st Respondent's Counter-claim dated the 31st day of May 2021 be and is hereby Dismissed
  6. 6.Costs of the Appeal be and are hereby awarded to the Appellants
  7. 7.Costs of the suit and the counter-claim in the Subordinate Court be and are hereby awarded to the Appellants
  8. 8.Costs in terms of clause (vi) and (vii) shall be agreed upon and in default to be taxed by the Deputy Registrar and/or Assessed (whichever is applicable)

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 78
  • Limitation of Actions ActSection 4(2)
  • Civil Procedure Rules, 2010Order 2 Rule 4 (and Rules 4 and 10)

Cases cited (33)

  • Manju Naul v George Macheho Mungai & 2 others
    [2017] eKLR
  • Hernderson v Hernderson
    [1843–60] All ER Page 378
  • Bedford Mutegi Mboani & 4 Others v James Mbaka
    [2019] eKLR
  • William Mutura Kairiba v Samuel Nkari & 4 Others
    [2019] eKLR
  • Mebyu Wangombe & Another v Patani virpal & 2 others
    [2015] eKLR
  • IEBC v Maina Kiai & 5 Others
    [2017] eKLR
  • Dennis Noel Ochwada & Another v Elizabeth Murungari Njoroge & Another
    [2018] eKLR
  • Evans Odero Nyakwana v Cleophas Bwana Ongaro
    [2015] eKLR
  • Central Bank Of Kenya Limited v Trust Bank Limited & 4 others
    [1996] eKLR
  • Vijay Morjaria v Nansingh Madhusingh Dabar & Another
    [2000] eKLR
  • Milka Muthoni Wangoco v The County Counsil Of Kirinyaga & 2 others
    [2017] eKLR
  • Maria Ngangi Gwako v Charles Mwenzi Ngangi
    [2014] eKLR
  • Wilson Kazungu Katana & 101 Others v Salim Abdala Bakshwein & Another
    [2015] KECA 728
  • Kenya Urban Roads Authority & another v Belgo Holdings Limited
    (Civil Appeal E011 of 2021) [2025] KECA 764 (KLR) (9 May 2025)
  • Peters v Sunday Post Limited
    [1958] EA 424
  • County Assembly of Kwale and Others v Dzilla
    [2025] KECA
  • Doshi v Justice Charles Chemutut and 7 others
    [2025] KECA
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] KECA 477 (KLR)
  • John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others
    (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021)
  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 others
    [2010] eKLR
  • ET v Attorney-General & another
    [2012] eKLR
  • Omondi v National Bank of Kenya Limited and others
    [2001] EA 177
  • Njangu v Wambugu and another
    Nairobi HCCC No 2340 of 1991 (unreported)
  • Uhuru Highway Developers Limited v Central Bank of Kenya & others
    [1999] eKLR
  • Nicholas Njeru v Attorney General & 8 others
    Civil Appeal 110 of 2011 (2013) eKLR
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] KECA 642 (KLR)
  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] KECA 467 (KLR)
  • Kinyanjui Kamau v George Kamau
    [2015] eKLR
  • Ndolo v Ndolo
    [2008] 1 KLR (G & F) 742
  • Doshi v Chemutut & 7 others
    (Civil Appeal E020 of 2023) [2025] KECA 776 (KLR) (9 May 2025)
  • Waas Enterprises Limited v City Council of Nairobi & another
    [2014] KEELC 605 (KLR)
  • Moya Drift Farm Limited v Theuri
    [1973] EA 173
  • Mohanson [K] Limited v Registrar of Titles
    [2017] eKLR
On appeal from
Subordinate Court (Principal Magistrate's Court, Meru)
Meru SRMCC (suit resolved by Judgment dated 29th June 2023)
Jurisdiction invoked
First appellate jurisdiction under Section 78 of the Civil Procedure Act, Chapter 21, Laws of Kenya

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, "Mucheke & another (Suing as the Legal Representative of the Estate of Genesio Murungi (Deceased)) v M’Miriti & another (Environment and Land Appeal E008 of 2023) [2025] KEELC 5529 (KLR)", Case Analysis (2025). Meru HCCA No. 44 of 1990 (appeal arising from Meru SRMCC No. 348 of 1986, as referenced in the record). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5529/eng@2025-07-24

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