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ELCStruck OutNot stated in the judgment (memorandum of appeal dated 29th April 2024)· [2025] KEELC 8287 (KLR)

Matiri & another v Matiri (Environment and Land Appeal E030 of 2024) [2025] KEELC 8287 (KLR)

Environment and Land Court
20 November 2025
OMOguttu Mboya
6,337 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru struck out a land appeal filed two days late, confirming the family holds no customary trust over the disputed parcels.

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 a Senior Principal Magistrate delivered on 28th March 2024, in which the appellants' claim of customary trust over L.R Nos. Abothuguchi/Githongo/762 and 186 was dismissed, while the trial court found that the respondent holds Abothuguchi/Githongo/750 on trust for himself and his siblings. The respondent did not participate in the appeal; the appeal was canvassed by written submissions filed by the appellants alone. The court framed two issues: the competency of the appeal, and whether the appellants proved their trust claim. On competency, the court found that the memorandum of appeal, filed on 29th April 2024, was lodged outside the 30-day period prescribed by section 79G of the Civil Procedure Act and without leave, rendering it a nullity; relying on the Supreme Court's decision in Nicholas Kiptoo Korir Arap Salat v IEBC and Pentagon Communications v National Land Commission, the court held that it was divested of jurisdiction over an incompetent appeal. Prudently, the court nonetheless proceeded to consider the merits. Applying the elements of customary trust set out by the Supreme Court in Isaac M'Inanga Kiebia v Isaya Theuri M'Lintari, the court held that the disputed properties had belonged to M'Ithinyai Mwitia, were transferred to the respondent pursuant to the unimpugned decision in Meru DMCC No. 102 of 1976 (a judgment in rem conclusive under section 44 of the Evidence Act), and that the appellants' own witnesses conceded no trust was ever declared. The court also noted, without deciding, that the suit against the deceased 2nd defendant had abated, rendering subsequent trial orders against him a nullity. The appeal was struck out, the trial judgment affirmed (save on abatement), and each side was left to bear its own costs.

Key legal issues

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01

Competency of the appeal - filing out of time without leave

Holding

The appeal, filed on 29th April 2024 against a judgment delivered on 28th March 2024, was outside the 30-day period under section 79G of the Civil Procedure Act and was lodged without leave; it was therefore void, invalid and struck out.

Reasoning

Section 79G requires an appeal from a subordinate court to be filed within 30 days of the decree. The memorandum of appeal was dated and filed on 29th April 2024, past the 27th April 2024 deadline. No leave to file out of time was sought or shown anywhere on the record. Relying on the Supreme Court in Nicholas Kiptoo Korir Arap Salat v IEBC and Pentagon Communications Ltd v National Land Commission, the court held the appeal a nullity divesting the court of jurisdiction.

p. 8
02

Proof of customary trust over L.R Nos. Abothuguchi/Githongo/762 and 186

Holding

The appellants failed to establish a customary trust; the properties were registered in the name of M'Ithinyai Mwitia and transferred to the respondent pursuant to a court decision in Meru DMCC No. 102 of 1976, which vested ownership without any trust.

Reasoning

Applying the Supreme Court's elements in Isaac M'Inanga Kiebia v Isaya Theuri M'Lintari, the court found the land was not family land but belonged to M'Ithinyai Mwitia; the claimants' own witness conceded the M'Ithinyai family gave the land to the 1st defendant and never asked him to hold it in trust; the appellants were registered owners of other parcels from their father, so no intervening circumstance prevented their registration. The 1976 judgment in rem conclusively vested title in the respondent under section 44 of the Evidence Act.

p. 11
03

Abatement of suit against the deceased 2nd defendant

Holding

The suit against Murithi Matiri (2nd defendant) abated 12 months after his death on 16th June 2022, with no substitution; the trial court's subsequent proceedings and orders against him were a nullity, though no appeal lay on this point.

Reasoning

Order 24 of the Civil Procedure Rules prescribes a 12-month period for substitution after a party's death, which had lapsed by 1st December 2023. Citing Sweilem Gheithan Saanum v Commissioner of Lands, the court observed that proceedings and orders made after abatement were a nullity, but as there was no appeal or cross-appeal on this aspect, it went no further and excluded this aspect from the affirmation of the judgment below.

p. 11

Legal principles established

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  • An appeal filed out of time without leave of the court is a nullity and incompetent
  • A first appellate court must subject the entire evidence to fresh and exhaustive scrutiny but may not depart from the trial court's findings arbitrarily
  • Jurisdiction arises only upon the filing of a competent appeal; without jurisdiction a court must down its tools
  • A suit against a deceased party abates 12 months after death, after which no proceedings or orders may be maintained against the deceased

Court orders

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  1. 1.The Appeal be and is hereby struck out
  2. 2.The Judgment and the consequential decree of the subordinate court (save for the aspect touching on abatement of suit) be and is hereby affirmed
  3. 3.For the avoidance of doubt, L.R Nos. Abothuguchi/Githongo/762 and 186 (now subdivided) are not held in trust for the Appellants
  4. 4.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 79G; Section 78
  • Civil Procedure Rules, 2010Order 42 Rule 13; Order 24
  • Evidence Act, Chapter 80, Laws of KenyaSections 107, 108, 109, 63 and 44
  • Land Registration Act, 2012Section 28(b)
  • Law of Succession Act, Chapter 160, Laws of KenyaNot specified
  • Constitution of Kenya, 2010Article 50

Cases cited (8)

  • 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
  • Nicholas Kiptoo Korir Arap Salat vs IEBC & 7 others
    Civil Application No. 16 of 2014 [2014] eKLR
  • Pentagon Communications Limited v National Land Commission
    (Civil Appeal E035 of 2022) [2025] KECA 1304 (KLR) (18 July 2025)
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    (Civil Appeal 244 of 2010) [2019] KECA 767 (KLR) (10 May 2019)
  • Isaac M'Inanga Kiebia vs Isaya Theuri M'Lintari & another
    (2018) eKLR / (2018) KESC 22
  • Sweilem Gheithan Saanum v Commissioner of Lands (being sued through Attorney General) & 5 others
    [2015] eKLR - Civil Appeal 16 of 2015
  • Kiarie v. Kinuthia
    null
On appeal from
Subordinate court (Senior Principal Magistrate's court)
Not stated (original suit by amended plaint dated 1st December 2021)
Jurisdiction invoked
First appeal from the subordinate court under section 79G of the Civil Procedure Act, Cap 21 and Order 42 of the Civil Procedure Rules, 2010

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, "Matiri & another v Matiri (Environment and Land Appeal E030 of 2024) [2025] KEELC 8287 (KLR)", Case Analysis (2025). Not stated in the judgment (memorandum of appeal dated 29th April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8287/eng@2025-11-20

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