Catholic Diocese of Meru Gatunga Catholic Mission v Ntuiru & 53 others

same thus blocking all access to the land; that it had destroyed various crops the value of which would be determined at the hearing. The respondents stated that the appellant’s actions were unlawful and wrongful and had occasioned the respondents and their families’ loss and suering; that the appellant had started erecting buildings on the lands. It was prayed that the court issue a permanent injunction restraining the appellant from interfering with the respondents’ land and general damages be awarded as well as costs of the suit. 3. The appellant delivered a defence, where it denied that its outreach mission was capable of being sued. It denied that the respondents and 53 others resided on or occupied the land for 12 years or at all; it was stated that the appellant’s land was demarcated and fenced from the year 1958; it was stated that the prayers sought by the respondents were not available to them in law; it was stated without prejudice that 165 acres of land was donated to the appellant by the said clan and the land had been demarcated; that the appellant had exclusively developed the land by putting up a church, a dispensary, sta houses and a water project; that the appellant was in the process of putting up a bigger church, a big hospital, sta houses, a technical school and a bigger water project claiming that if the respondents were on the land they were trespassers and it was prayed that the suit be dismissed with costs. 4. There were a number of interlocutory applications in the suit and the record shows that the dispute was several times referred to a panel of elders chaired by the District Commissioner, Meru, by consent of the parties. That panel always returned a verdict in favour of the appellant. 5. In one of the application that was heard and determined by Aganyanya, J. in a ruling delivered on 12th February, 2000 the Judge found that the last award by the panel of elders was dated 25th April, 1995 and an attempt by the respondents to set it aside had been dismissed on 12th October, 1995 and the award was adopted and conrmed as a judgment of the court on 14th December, 1995. The Judge found that after the award had been adopted as a judgment of the court, the appellant had applied for eviction of the respondents from the land on 13th March, 1996. 6. That application was heard on 20th August, 1996 by Etyang, J., who found that the same was not opposed and allowed it. 7. The respondents had followed that with an application for review and a stay of execution of the eviction order, and the latter prayer had been granted on 22nd August, 1996. An order for maintenance of status quo had been made pending the hearing and determination of that application. That application was not heard to conclusion. On 8th October, 1996, lawyers for both parties appeared before the Judge and applied that a prayer (b) in the application dated 26th August, 1996 be granted to the eect that the District Surveyor was directed to mark the boundaries as marked on the ground and determine acreage as guided by ndings of elders who had handled the dispute. The surveyors’ report was to be led within 60 days. 8. Aganyanya, J.’s ruling shows that the surveyor led a report dated 2nd January, 1997. That report showed the acreage of land occupied by the appellant as 180.82 acres, but the parties disputed this, leading to the surveyor being summoned to court to testify on his report. He testied on 18th February, 1997 before Etyang, J. after which the Judge, in a ruling delivered on 26th June, 1997 dismissed the application dated 20th August, 1996 except for prayer (b), over which the surveyor had made a report. 9. What followed was an application for review, the appellant contending that the order made after the said ruling was at variance with the decretal judgment given on 14th December, 1995, which conrmed the elders' award (dated 25th April, 1995) which had left out acreage of the land which had led to the consent order for the District Surveyor to visit the land and le a report. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1855/eng@2026-09-25 2

page 2 of 8

10. Considering the application for review Aganyanya, J. observed: “ The applicants herein are seeking the plaintis' eviction from 180.82 acres which they believe to belong to them. What they seem to have forgotten is that when they consented to the District Surveyor visiting the suit land to take out the measurements to determine who owns what acreage, he came up with evidence that the total area was 180.82 acres out of which he computed the area shown to be 82 acres for Gatunga Catholic Mission and the remainder of 98.82 for the plaintis. This is what the parties wanted when they sent out the District Surveyor on this mission, the ascertainment of the acreage of the disputed land and who of the parties to the suit owns what acreage. From the record on the le, the defendants were not claiming more than 165 acres of the disputed land. And even during the elders’ deliberations, Antu - A -Mbugi Clan gave the defendants about 50 acres of land and there was a document the elders were shown to this eect. If the land given to the defendants was as much as 165 or even 180 acres, the document would not have talked of “about 50 acres.” It could have shown, say, “about 100 acres…” The surveyor went round the area with some of the elders involved in giving the defendants the disputed land and the area chief and was shown an area covering about 82 acres as the one given to the defendants by the clan and the remaining 95. 82 acres, fully developed and occupied by the plaintis…” 11. The Judge found that all that information had been given by the Surveyor to Etyang, J. in the form of a report and map which were produced as exhibits before the Judge; that the clan could never have intended to give all its land to the appellant but had reserved some of the land for members of the clan. Considering all that background, the Judge found in the application before him for review: “ …I am satised the learned Judge's ruling covered all the relevant aspects of this dispute and that no grounds have validly been cited to warrant his order being reviewed except to give the extent of the land given to the plaintis as 98 acres and that given to the defendants as 82 and to order that any of the plaintis’ members on the latter area be evicted. To this extent only is the Learned Judge's order varied.” 12. This order was given on 1st February, 2000. 13. Sitati, J. was then confronted with an application by the respondents brought under Order 50 rule 1, Order 20 rule 7 of the Civil Procedure Rules, sections 3, 3A, 99 and 100 of the Civil Procedure Act, where it was prayed that there be a stay of execution of the decree and an order be issued amending/ correcting the decree. It was stated in the application and supporting adavit that the decree as drawn by the appellants’ advocates was defective and misleading; that the decree was invalid and of no eect as the same was not drawn in accordance with the provisions of the law; that the decree was not enforceable; that the defendants had sought to enforce the decree to meet their selsh ends at the detriment of the plaintis; and that the decree was drawn to defeat the ends of justice. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1855/eng@2026-09-25 3

page 3 of 8

14. The Judge, who had handled other applications in the case, retraced the history of the dispute that had been referred to a panel of elders, an award adopted as a judgment of the court, the surveyors report and previous rulings in the case and in the end concluded: “ In the result, I would allow the applicants' application dated 14.3.2005 in terms of prayer (3) thereof to the extent that the decree dated 26.8.1997 be amended to show that any persons squatting, farming or grazing on the 82 acres belonging to the Gatunga Catholic Mission should move out so as to enable the diocese to go ahead with their development plans for the benet of the community. The record is clear that 98.82 acres of the suit land belong to the plaintis. I make no order on costs. The revised decree should be approved by both parties…” 15. This was on 28th July, 2005. 16. A revised decree was drawn and was endorsed by the Deputy Registrar on 18th August, 2005. 17. All those facts are gleaned from the record and from the rulings of the many Judges who handled the various applications that were led by the parties in the case. It is our duty as a rst appellate court to trace that history and put it in perspective as we review the case and establish whether those facts were dealt with by the High Court as required in law. On the duty of a rst appellate court -see the holding in the oft cited case of Nairobi Bottlers Limited vs. Adrian Imbuga Civil Appeal No. E661 of 2022 [2024] KECA 434 (KLR) where it was stated: “ Our mandate in a rst appeal as donated by rule 31 of the Court of Appeal Rules, 2022 is to re- appraise the evidence and to draw inferences of fact; to retry the case. That mandate has been the subject of various judicial pronouncements in such cases as Nicholas Njeru vs. Attorney General & 8 Others [2013] eKLR where it was stated: “[In] a rst appeal, we are required to re-evaluate the evidence and arrive at our own independent ndings and conclusions of the matter.” 18. One would have thought that Sitati, J. in the ruling we have discussed would have brought matters to a close but that was not to be as shown in the events that followed leading to this appeal. 19. The appellant approached the High Court through an application said to be based on Order XLIV Rules 1, 2 and 6 of the Civil Procedure Rules and Sections 3, 3A and 80 of the Civil Procedure Act where it was prayed in the main: “ 2. That this Honourable Court be pleased to stay the warrants to the court baili to give possession issued on 22nd December, 2005. 3. That this Honourable Court be pleased to review its orders/decree of 18th August, 2005. 4. That this Honourable Court be pleased to order the parties herein accompanied by the District Surveyor Meru South District, the parties’ private surveyors and all the parties to visit the suit land situated at Marindi Antu a- Mbugi Mukothima and ascertain its acreage and boundaries OR IN THE ALTERNATIVE the Honourable court do visit the locus in quo in the company of the said ocers.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1855/eng@2026-09-25 4

page 4 of 8

20. The application was supported by three adavits of Father Andrew Mbiko, Kanampiu M'Mwili and Samuel Ngaruni Ikumbati alias Gakindu and on grounds on the face of the Motion. It was stated in those grounds that the warrants to the court baili to give possession executed by the Deputy Registrar had no legal basis “…as this court has not issued any corresponding orders at the instance of the respondent/plainti…”; that there was sucient reason to warrant review therein “… as the surveyor who visited the parcel herein on 7th November, 1996 did not disclose an important matter, to wit, that there are developments by the Defendants in the northern portion of the suit land as was brought out by the Meru Central District Surveyor one ANTHONY 0. LAMBA during his visit on 5th November, 2002. He also did exceed this mandate.” It was further stated in the said grounds that if the warrants, if executed, would bring down Mukothima Girls Secondary School, Mukothima Catholic Mission Health Centre which properties belong to the appellant; that the warrants had no legal basis as there were no corresponding orders issued by the court and that it was fair, just and equitable that orders sought be granted. 21. The three adavits rehashed the case but took an approach as if the case had not been heard at all and should start all over again. The replying adavit of Nduma Ntuiru took a similar position where the case was being regurgitated afresh. 22. Lenaola, J. (as he then was- now Judge of the Supreme Court of Kenya) considered the application and after reviewing the whole record he was not impressed at all by the approach taken by the appellant. This is how he rendered himself at paragraphs 6-10 (inclusive) of the ruling: “ 6. From the arguments made before me, it seems that what has triggered this frustratingly long- standing dispute is a report dated 5.11.2002 and led on 7.11.2002 by one Anthony Lamba, District Surveyor, Meru Central District. In that report the said surveyor stated that he visited the suit land to an order dated 1.10.2002 which for avoidance of doubts reads as follows: "The District Surveyor, Meru Central to mark the boundaries as per the court order of 26.6.1997. The District Surveyor of Nithi Tharaka District who had visited the suit land before is to accompany the Meru District Surveyor on that day." By consent the orders of 1.10.2002 be stayed." And the reason these orders was to allow parties to argue an Application dated 30.10.2002 which sought to set aside the orders of 1.10.2002 aforesaid. 7. 7. It was only on 10.11.2004 that Sitati Judge heard that Application and delivered her Ruling on 20.12.2004. In it the learned Judge allowed the prayer by the Defendant that the orders of 1.10.2002 be set aside and it would of cause be clear that the report by Mr. Lamba made on 5.11.2002 was then rendered a nullity and no party should rely on it however advantageous it is to it. The defendant however now says that based on that report, the decree dated 18.8.2005 be reviewed because the Defendant has developed the northern portion of the suit land and that if the warrants of possession are executed as in the decree, then the following institutions would have to be brought down; i. Mukothima Girls Secondary School and ii. Mukothima Catholic Health Centre Having heard the rival submissions by both Mr. Mwanzia for the Defendant and Mr. Lompo for the Plaintis, it seems to me that the Application dated 8.2.2006 is a crafty attempt at reversing all the earlier decisions by Etyang J., Aganyanya J. and Sitati J. to the eect that the Defendant is entitled to 82 acres of the suit land. I say this with respect because it was the Defendant that nullied the report https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1855/eng@2026-09-25 5

page 5 of 8

by Anthony Lamba aforesaid and by so doing it lost the opportunity to benet from his report. It cannot now say that there is a sucient reason to warrant a review of the decree because Sitati J. as did Aganyanya J. were insistent that parties had to abide by the orders of Etyang J. and Aganyanya J. in fact refused to review those orders. To attempt to do so now would amount to relitigating on the same point all over again albeit in a round-about way. That is what the doctrine of res- judicata frowns against. 8. It is of course true that where a party shows a sucient reason why a Decree should be reviewed, no court should deny him that right. In this case, aside from what I have said above, have carefully read the record in this matter and I am certain that nothing should sway my mind from disagreeing with my learned predecessors as to acreage that the Defendant is entitled to because the two institutions that are threatened with demolition were certainly not built by 1997 and more likely than not the contents of paragraph 27 of the Replying Adavit of Ndume Ntuiri are correct. He depones that the developments and especially the school were built in 1998 on the plainti's portion after the surveyor led his report in court and after the honourable Judge Etyang had made his ruling nalizing the matter. I share that view because in the award dated 25.4.1995, Mukothima Health Centre is recorded as complete with a maternity wing but only partially operational i.e. operates on Monday and Thursdays on mobile basis by the Gatunga Mission sisters. Residential houses for the sisters are complete but the sisters have not moved in due to this dispute. Part of the land under use by these squatters are earmarked for“A polytechnicSchool for the physically and mentally handicapped.Primary and Secondary Boarding Schools.” 7. What is clear therefore is that the school was not on the disputed land during the arbitration and when the surveyor visited the land in November 1997. Etyang J’s decision is therefore still sound on all fours and it is the Defendant without resolving the dispute who continued developing the disputed land and now wishes to benet from that act. That cannot be a sucient reason to review either the orders made by Etyang J. or the decree as revised by Sitati J.” 23. The application was dismissed in the ruling delivered on 28th January, 2008 which has provoked this appeal drawn for the appellant by its lawyers’ M/S Kaberia Arimba & Company Advocates where 12 grounds of appeal are set out. The Judge is faulted in law and fact in nding that the appellant without resolving the dispute continued developing the land yet the same was developed before the dispute arose; that the Judge erred in law and fact in failing to give the appellant a fair hearing by refusing to stay the warrant to the court baili to give possession issued on 22nd December, 2005 “…yet he appreciates that the dispute had not been resolved.”; that the Judge erred in law and fact in failing to nd that there was a sucient reason to warrant review as the surveyor who visited the suit land on 7th November, 1996 did not disclose that there were developments in the northern portion of the suit land as was brought out by the other surveyor who visited the suit land on 5th November, 2002; that the Judge erred in law and fact in not nding that execution of warrants would bring down the public facilities; that the Judge erred in not nding that warrants to the baili had no legal basis; that the Judge should have ordered a revisit to the suit land or the Judge visit the suit land himself; that the Judge erred by failing to nd that the suit was not heard on the merits and whether the 54 plaintis existed; that the Judge failed to nd that there were two surveyors reports contested by the parties; that the Judge failed to appreciate that the appellant had acquired the whole land from Antua-A-Mbui clan. The appellant says in the penultimate ground that the Judge erred in law and fact in failing to nd and appreciate that there was an Arbitration Report by a panel of elders’ decision which was read on 27th April, 1995 which conrmed that the suit land belonged to the appellant. It is stated in the last ground that the decision of the Judge was against the weight of evidence. It is proposed that we allow the appeal and set aside the orders issued on 28th February, 2008 and award costs to the appellant. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1855/eng@2026-09-25 6

page 6 of 8

24. When the appeal came up for hearing before us on 27th May, 2025 the appellant was represented by learned counsel Mr. Omari while the respondents were represented by learned counsel Mr. David Mbaya. Mr. Mbaya applied, and we allowed his application to withdraw submissions led by his law rm on 14th January, 2025. He relied on submissions led on 4th August, 2022. 25. Mr. Omari relied fully on his written submissions. 26. Mr. Mbaya, in a highlight of written submissions opposed the appeal stating that the appellant burnt all houses belonging to the respondents during the proceedings. He supported the ruling appealed from, submitting that the appellant erected buildings after 1997 when the dispute was ongoing at the High Court. He submitted that the ruling by Etyang, J. had never been challenged. He agreed with the decision of Lenaola, J. in the ruling that the matter was res-judicata. 27. We have considered the whole record, submissions and the law. 28. The grounds of appeal may appear numerous – they literally raise the same issues and we need not address them separately as they can be dealt with together. 29. It will be remembered that the ruling leading to this appeal was on an application whose central prayer was for review. Order 45 of the Civil Procedure Rules is to the following eects: “ (1) Any person considering himself aggrieveda. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or b. by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sucient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” 30. The Judge reviewed the whole history of the matter where the Antu-A-Mbui clan had gifted land to the appellant which was reduced into writing in an agreement dated 17th June, 1971 where the appellant was beneciary at no consideration; where no acreage was stated in the agreement; when a dispute arose in 1972 and a suit was led at the High Court, the dispute was referred to arbitration by a panel of elders whose award was made a judgment of the court. On the issue of acreage for the respective parties the surveyor’s report showed that the appellant occupied 82 acres which it had developed while the respondents occupied 98.82 acres. 31. The surveyors’ report dated 2nd January, 1997 was accepted by Etyang, J. in a ruling delivered on 26th June, 1987. A review application against those ndings was dismissed by Aganyanya, J. in a ruling delivered on 12th February, 2000 whereafter a decree was drawn and upon the decree being challenged, it was amended upon the orders of Sitati, J. 32. What, then was the new matter or evidence which after due diligence was not within the appellant’s knowledge to warrant a review within the purview of Order 45? What mistake or error was apparent on the face of the record or was there sucient reason to call for review? https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1855/eng@2026-09-25 7

page 7 of 8

33. When the panel of elders led their award it was in favour of the appellant but it stated in general terms that the clan had donated “about 50 acres” of land to the appellant. The parties agreed by consent that a surveyor visit the disputed lands and ascertain the position on the ground. The surveyor led his report which showed the respective acreages occupied by the respective parties in the suit. That report and its timeliness was adopted by the Court in the ruling by Etyang, J. as conrmed by Aganyanya, J. The report was as a result of a process started by the parties themselves in the consent they entered in the dispute before the court. 34. The appellant cannot, in law, turn around after it had consented to its dispute being resolved through arbitration by elders and thereafter consenting to the surveyor visiting the lands to establish the position on the ground, to turn around to allege in grounds of appeal that it has been denied a fair hearing. It is estopped from doing that by its own conduct and action. 35. As Lenaola, J. found in the impugned ruling the appellant was trying a crafty way of reviewing all the earlier decisions of the Judges who had handled the dispute and had made determinations in the same. 36. We nd that there was no discovery of any new matter or evidence which after due diligence was not within the appellant’s knowledge; there was no mistake or error apparent on the face of the record; there was no sucient reason to warrant review as envisaged by Order 45. 37. This appeal has no merit and we dismiss it with costs to the respondents. DATED AND DELIVERED IN NYERI THIS 25TH DAY OF SEPTEMBER, 2026. S. ole KANTAI ………………….…………… JUDGE OF APPEAL J. LESIIT ………………….…………… JUDGE OF APPEAL ALI – ARONI ………………….…………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1855/eng@2026-09-25 8

page 8 of 8