Gerishon Ngure Mang‘ara v Patrick Ng’ang’a Muchiri & 1 other

4. The 2nd respondent, joined as third party, admitted purchase of the suit property in 1995 and registration in his sons’ names but alleged that the family later agreed orally to sell to the appellant. He denied receipt of sale proceeds and maintained that the appellant developed the property openly. 5. The trial court in its judgment found inter alia that the 1st respondent had locus standi under Section 91(2) of the Land Registration Act (LRA) as tenant in common, to protect the whole property; that the 2nd respondent had no legal or equitable title and lacked authority to sell; that the purported 1999 sale was null and void; and that the appellant, lacking valid title, was a trespasser. The trial court awarded general damages of Kshs.500,000.00 against the appellant and the 2nd respondent was ordered to indemnify the appellant the sum of Kshs.100,000. Further, the appellant was ordered to vacate the suit premises within 60 days, demolish structures erected thereon, and was permanently restrained from re-entry. Costs were awarded to the 1st respondent. 6. Dissatisfied with that decision, the appellant filed the instant appeal. Submissions by counsel 7. At the hearing of the appeal, the appellant and the 1st respondent, who were represented by counsel had filed written submissions. The appellant was represented by Messrs Kirubi, Mwangi Ben & Co. Advocates who submitted that the 1st respondent lacked locus standi absent letters of administration or compliance with Order 1 Rule 8 of the Civil Procedure Rules; that the appellant was an innocent purchaser for value, misled by the 2nd respondent’s misrepresentation of ownership; that the 1st respondent was aware of construction on the suit property since 2005 yet delayed filing suit until 2017; that the equitable remedy should have been compensation of Kshs.2.8 million for developments, not demolition; and that the award of damages for trespass was unpleaded, unproven, and excessive. 8. The 1st respondent was represented by Messrs. Kaka Kamau & Co. Advocates who submitted that the 1st respondent was the only surviving registered owner of the suit property and had standing to sue; that the appellant’s occupation of the suit property was unlawful as the 2nd respondent lacked authority to sell; that a person without title is a trespasser as held in Mbira v. Gachuhi [2002] 1 EA; and that the trial court correctly applied the law. Counsel asserted that the appeal was devoid of merit and should be dismissed with costs. Determination 9. We have considered the record, the submissions filed, the authorities cited and the law. 10. As a first appellate court, our role is to re-evaluate evidence afresh (Selle v. Associated Motor Boat [1968] EA 123). 11. We discern the following issues for determination: 12. a. Whether the 1st respondent had locus standi to protect the suit property from trespass; b. Whether the 2nd respondent had authority and capacity to dispose the suit property; c. Whether the appellant was entitled to compensation for any loss in respect of the suit property; and d. Whether the 1st respondent was entitled to an award of damages of Kshs.500,000 for trespass. On the question of locus standi, the suit property was registered in the names of the 1st respondent and his two deceased brothers. Section 91(2) of the Land Registration Act (LRA) provides that unspecified https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1606/eng@2025-10-03 2

page 2 of 4

co-ownership is presumed tenancy in common. Each tenant holds an undivided share and on death, a share devolves to the estate (section 91(5) LRA). In the instant case, the 1st respondent, as surviving co-owner, had standing to protect the whole suit property from trespass. We therefore find that the trial court rightly found that the 1st respondent had locus standi to file suit in respect of the whole suit property. 13. Regarding ownership of the suit property and whether the 2nd respondent had capacity to sell the suit property, the records confirmed that ownership in 1995 was vested in the 1st respondent and his two brothers. Further, that the 2nd respondent was not a registered owner and lacked authority to dispose of the suit property. The purported 1999 sale was therefore void ab initio. In the circumstances, no valid title passed to the appellant and his reliance on misrepresentation by the 2nd respondent could not confer legal rights. 14. Regarding compensation for developments erected on the suit property, the appellant sought Kshs.2.8 million, but failed to plead or counterclaim this relief. It is settled law that parties are bound by their pleadings. As stated in Caltex Oil (Kenya) Ltd v. Rono Ltd [2016] KECA 457, courts cannot grant unpleaded remedies. We find that while the appellant may have invested in good faith, his claim was procedurally defective and cannot succeed. Equity cannot override statutory requirements. 15. Regarding damages for trespass, an assessment of damages lies within the trial court’s discretion. We find that the award of Kshs.500,000 was proportionate to the duration of trespass and unchallenged by evidence. 16. We therefore find that no error of principle has been demonstrated and we decline the invitation to interfere. 17. Having re-evaluated the evidence, we find that the appellant relied on a void sale and failed to protect his interests by efiecting transfer or paying rates. We find that the trial court properly found him a trespasser. 18. In the result, we find that the appeal lacks merit and is hereby dismissed with costs to the 1st respondent. The judgment and orders of the trial court are afirmed in full. 19. Orders accordingly. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF OCTOBER, 2025 JAMILA MOHAMMED ………………..……….……. JUDGE OF APPEAL L. KIMARU ………………………………. JUDGE OF APPEAL A. O. MUCHELULE ………………………………. JUDGE OF APPEAL I certify that this is a true copy of the original Signed https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1606/eng@2025-10-03 3

page 3 of 4

DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1606/eng@2025-10-03 4

page 4 of 4