Ndege Ndembu v James Muriithi Kareu

where it was pleaded that the appellant was at all material times the registered owner of the parcel of land known as L.R No. Baragwe/Raimu /237 (‘the suit land’) which suit land was alleged to have been trust land. It was alleged that the suit land was registered in favour of the appellant in 1959 while still a minor “… in his capacity as the first born son of our family”; that the deceased always resided on the suit land with his family; that the appellant in 2014 threatened to sell the suit land to a third party “…notwithstanding our concern and our right over the subject land parcel”; that the appellant had made attempts to have a restriction placed over the suit land removed so as to sell the suit land which led to filing of the suit. It was therefore claimed that the appellant held the suit land in trust for himself and the deceased and the Land Registrar, Kirinyaga should be ordered to rectify the register upon on subdivision of the suit property into equal shares in the names of the appellant and the deceased. The deceased repeated all those averments in a statement accompanying the plaint. There is on record a statement by the appellant filed at ELC on 25th June, 2011 where he states amongst other things that his brother (the deceased) died on 18 th May, 2017; that he was not served with Summons to Enter Appearance in the suit; that he had never held the suit land in trust for anybody including his siblings: “…By the time I was acquiring the land in question, all my siblings including my father and mother were alive - I acquired the land Page 2 of 9

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through my own effort. Page 3 of 9

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5. That my agreeing to have Kareu Ndembu buried in my land was on (sic) good faith just like I hand (sic) buried other deceased including the deceased's wife…” The appellant delivered a statement of defence where he denied the claim. He stated that the deceased had placed a restriction on the suit land; that he had requested the deceased to refer the dispute to clan elders but that the deceased had declined to do so; he stated: “The defendant admits the contents of paragraph 9 of the plaint in so far as the plaintiff admits that he was registered as a trustee on behalf of the defendant… There has been no communication between the defendant and the plaintiff touching on breach of trust in so far as that the defendant has no intention of breaching the same as alleged by the plaintiff in the content of paragraph 10 of the plaint…” This is how the appellant concludes his statement of defence: REASONS WHEREFORE the defendant prays that the whole suit be dismissed with costs and the matter be referred to the clan elders in order that the plaintiff subdivides the land.” The documents in the amended record of appeal appears to have been selected for an intended purpose. They omit documents attached to a list filed by the respondent and are referred to in the judgment of ELC. The omitted documents show that the deceased died on 18 th May, 2017 as evidenced by Certificate of Death No. 0264488 which the respondent filed at the Chief Magistrate Court Page 4 of 9

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at Kerugoya Succession Cause No. 230 of 2017; In the matter of the Estate of Kareu Ndebu. A limited Grant of Letters of Administration Ad Litem was issued on 6 th September, 2017 to James Muriithi Kareu (the respondent) who moved the ELC and was with leave of Court substituted as plaintiff in place of his deceased father. The amended plaint filed on 25 th September, 2017 reflected the respondent as plaintiff and those were minor amendments which did not alter the original claim. The appellant filed a defence to the amended plaint where he questioned the locus standi of the new plaintiff and his (respondent’s) interest in the suit. In testimony before the Judge the respondent claimed a share of the suit land where he said that he was born; that it took him to file suit before the subordinate court after his father (the original plaintiff) died and the appellant refused his body to be buried in the suit land; the deceased was buried in the suit land after a court order; that he did not have any (other) land anywhere. In cross- examination he stated that he was pursuing a share of his father’s land; that the suit land was ancestral land inherited from his grandfather; his siblings were born on the suit land and his parents were buried there. Cross examined by the Judge, he stated that their clan was Ucera Clan; that the appellant was the elder of the two brothers; and that his father had informed him that the appellant held the land as trust land. Page 5 of 9

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The appellant in testimony before the Judge said that he did not know the respondent at all: “… I saw him with my late brother … My late brother used to live in my land … My late brother had built a house in the suit land … He was living with his family. My late brother had four children. The plaintiff was one of the sons of my late brother…” Further that the respondent and his father had vacated the land; that the suit land was not clan land but was his own which he was given in 1960 during land demarcation. In cross-examination he confirmed that his brother (the deceased) was not given any land; that he was living in the suit land with his parents and the deceased and his family. The Judge considered both sides and found that the respondent had proved his case to the required standard. A declaration was issued to the effect that the appellant held the suit land in trust for himself and the respondent and the Land Registrar, Kirinyaga County was ordered to sub-divide the suit land into two equal portions and to rectify the register accordingly. Those orders provoked this appeal drawn for the appellant by his lawyers M/s Mwangombe & Co. Advocates where 7 grounds of appeal are set out. The Judge is faulted in law and fact for finding that the appellant held the suit land in trust for himself and the respondent who: Page 6 of 9

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“…lacked locus standi having not taken out letters of administration to the Estate of the deceased the (original plaintiff herein).” The appellant says that the Judge erred in law and fact by substituting and letting the respondent prosecute the suit in a claim that was “personam to Kareu Ndembu”; that the respondent did not name the siblings he claimed to be representing in the suit; that the Judge erred in law and fact in making findings on points not pleaded; that pleadings filed on his behalf were filed by a “quack” and the Judge erred in law and fact not so to find. In the penultimate ground it is stated that the Judge erred in law and fact by failing to find that the Judge should not have considered pleadings: “…as filed as provided Advocates Act (CAP .16).” by S.34 of the In the last ground: “THAT the learned Judge erred by granting the Respondent prayed (sic).” We are asked to allow the appeal by setting aside the judgment of ELC and to enter judgment for the appellant. When the appeal came up for hearing before us on 30 th September, 2025 learned counsel Miss Teresiah Kamotho appeared for the appellant while the respondent was present in person, unrepresented. Page 7 of 9

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Both sides had filed written submissions which they entirely relied on without finding it necessary to highlight any point. We have considered the whole record, submissions filed and the law. The first line of attack by the appellant as seen in grounds 1, 2 and 3 of Memorandum of Appeal is whether the appellant had locus standi to bring the suit. We have reproduced in this judgment the events as they unfolded. The original plaintiff filed the suit and died before he could prosecute it. The respondent (his son) took out succession proceedings at the Chief Magistrates Court, Kerugoya, in Succession Cause No. 230 of 2017 and was issued a grant of letters of administration. He thereafter applied to ELC and was allowed to substitute his deceased father and he became the plaintiff in the suit. 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. In the application to the subordinate court he named his siblings (he told the Judge at ELC that they were married) as those who had interest in the estate of their late father. The respondent gave all relevant information required. There is no merit in the complaint about locus standi and those grounds of appeal are dismissed. It is alleged in ground 4 of the Memorandum of Appeal that the Judge interrogated and made findings on points not pleaded Page 8 of 9

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or Page 9 of 9

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argued in court. We have gone through the whole record. The issue before the ELC Judge and which he identified and made findings on in the judgment was whether the appellant held the suit land in trust for himself and the respondent. We have not found in the judgment any deviation from that issue and the complaint by the appellant in that respect has no merit and is dismissed. Grounds 5 and 6 in the Memorandum of Appeal are not very clear. They seem to be an attack on an unnamed “counsel” who is said to have been a “quack” and filed pleadings contrary to provisions of the Advocates Act. The issue was not raised at ELC at all and it would be difficult for us to interrogate it when there is no finding on it by ELC. We have seen on record a document titled “NOTICE OF TERMINATION OF ADVOCATE” drawn by the appellant at Kianyaga on 21st March, 2018 and filed in Court on the same date where he says, that he had terminated the services of M/s Kenneth J. N. Githinji & Co. Advocates of Posta Building opposite I.E.B.C office, Gichugu. The appellant hereafter filed a document in person titled “DEFENDANT” on 25th June, 2017 which we have already referred to in this judgment. Statement of Defence had been filed earlier on his behalf by Kenneth J. N. Githinji Advocate and what the appellant titled “DEFENCE TO AMENDED PLAINT” was drawn by him in person. If there was an issue where a lawyer acted for him without instructions there were channels which the appellant would have used to lodge complaints. Page 10 of 9 Nowhere in the

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proceedings did the Page 11 of 9

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appellant raise any issue concerning the statement of defence or whether the lawyer who drew it had authority to do so. The appellant did not apply to amend the defence at all. That issue cannot, in any event, be raised at the appellate level. It is not clear to us what the appellant is saying in the last ground of appeal. We have reviewed the record and find that the Judge made the correct findings that the appellant held the suit land in trust for himself and the respondent. We find no merit in this appeal which we dismiss with costs to the respondent. Dated and delivered in Nyeri this 25 th day of September, 2026. K. M’INOTI ………………….…………… JUDGE OF APPEAL S. ole KANTAI ………………….…………… JUDGE OF APPEAL ALI – ARONI ………………….…………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed Page 12 of 9

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DEPUTY REGISTRAR Page 13 of 9

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