Kariuki v Muchori & 2 others

and judgment of the court in Kitale PMCC No. 4 of 1994. The late Muchori Baiya instituted judicial review proceedings vide Eldoret High Court Miscellaneous Application No. 347 of 1995 where he was granted leave to le an application and stay of the enforcement of the decree adopting the tribunal award. The award was then quashed by an order of certiorari in Kitale High Court Miscellaneous Application 150 of 1997 on 26th February 1998. Notwithstanding the stay order by the High Court, the late Kariuki Macharia registered the 9 acres, sub divided from plot no. K8, in the names of Esther Waitihira alias Esther Wambui Kariuki, Lucy Wangari Kariuki, Frida Wanjiku and Naomi Wanjiku Kariuki and himself in the year 1997. It is on this basis that the respondents went to court to have the titles cancelled and a rectication of the register. 4. The appellant denied the allegations in an amended defence dated 20th February 2002. The main line of defence was that the land was subdivided pursuant to the resolutions of the annual general meeting of Wamuini Farm and that the beneciaries of the late Peter Macharia then obtained titles to their shares in a manner that was not connected to the land disputes tribunal award. Further, it was stated that the issuance of titles was done in accordance with the Will of the late Kariuki Macharia. The appellant also led a counterclaim, seeking a declaration that they were the bona de proprietors of the suit land, that the respondents’ occupation was unlawful and an award for mesne prots and costs. 5. The respondents led a reply to defence and defence to counterclaim where they denied all the allegations in the defence and prayed that the counterclaim be dismissed with costs, and that the prayers in the amended plaint be allowed. 6. After a full trial and in a judgment dated 17th December 2020, the trial Judge, Mwangi Njoroge, J, found that the eect of the nullication of the award by the Land Disputes Tribunal was that the respondents’ father remained the owner of the suit land. He held as follows; “ In this court's view, the nullication of the award and judgment of the Tribunal and the Magistrate's court respectively left the defendant's father in the same position that he was in before the award: landless. It is logical then that the late John Muchori Baiya was also left in the same position that he was in before the award, that is, as owner of the suit land.” 7. The learned Judge then issued the following orders; “ a. A declaration that the registration of parcels No. Kiminini/Kapkoi Block 2/Wamuini ‘B’/169 in the name of Esther W. Waithira, No. Kiminini/ Kapkoi Block 2/Wamuini ‘B’/744 in the name of Lucy Wangari Kariuki, No. Kiminini/Kapkoi Block 2 /Wamuini ‘B’/743 in the name of Frida Wanjiku and No. Kiminini/Kapkoi Block 2/Wamuini ‘B’/742 in the name of Naomi Wanjiru was void ab initio. b. A declaration that the registration of parcels No. Kiminini/Kapkoi Block 2/Wamuini ‘B’/ 169 in the name of Esther W. Waithira, No. Kiminini/ Kapkoi Block 2/Wamuini ‘B’/744 in the name of Lucy Wangari Kariuki, No. Kiminini/Kapkoi Block 2/Wamuini ‘B’/743 in the name of Frida Wanjiru and No. Kiminini/Kapkoi Block 2/Wamuini ‘B’/742 in the name of Naomi Wanjiru is hereby cancelled. c. An order that the land register in respect of Kiminini/Kapkoi Block 2/ Wamuini ‘B’/169 Kiminini/Kapkoi Block 2/Wamuini ‘B’/744, Kiminini/ Kapkoi Block 2/Wamuini ‘B’/743 and Kiminini/Kapkoi Block 2/Wamuini ‘B’/742 shall be rectied to reect the registration of plaintis herein as https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1891/eng@2026-09-25 2

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proprietors of those parcels in the order in which they may by their mutual consent prefer.” 8. The appellant was dissatised with the decision. Through a memorandum of appeal dated 25th March 2021, the appellant instituted this appeal, premised on seventeen grounds which we have taken the liberty to summarise as follows: that the learned Judge erred by awarding the respondents more acreage than what they claimed in their pleadings; in dispossessing the appellant of his land rightfully owned; by expunging the testimony of the appellant’s crucial witnesses and by failing to allow the appellant corresponding leave to amend pleadings. 9. The appellant submitted that the learned Judge awarded the respondents more acreage than claimed in their pleadings, as there was no proof that additional plots had been sold to the late John Muchori Baiya. Additionally, the appellant averred that there was no sale agreement to back up the respondents’ allegations, contrary to section 3(3) of the Law of Contract Act. He maintained that the respondent failed to meet the threshold under section 26 of the Land Registration Act. 10. The appellant posited that he was never served with any stay orders, which failure was a breach of natural justice and the court erred in accommodating the respondents’ assertions. Further, the appellant claimed that there was no evidence that he initiated the subdivision of plot no. K8. He argued that the court erred in expunging crucial evidence when it disqualied the appellant’s witnesses vide a ruling dated 30th July 2020, which was a denial of his right to fair administrative action under Article 47 of the Constitution. He urged that the appeal be allowed with costs. 11. The respondents, on their part, submitted that the argument that the court awarded them more land than 9 acres is false. They laid down a detailed history of the land dispute, maintaining that their claim was for 9 acres which they long occupied. The respondents added that the allegation that the Judge made a nding stripping the appellant of membership in Wamuini ‘B’ was untrue. They stated that the appellant was awarded 9 acres by the Saboti Land Disputes Tribunal, which award was quashed by the High Court, stripping him of the 9 acres but not membership from the farm. 12. The respondents contended that it has not been demonstrated how the Judge failed to observe the rules of natural justice and urged the Court to dismiss the appeal with costs. 13. The appeal was heard virtually on 9th June 2026. Learned counsel, Ms. Guserwa, represented the appellant and learned counsel, Mr. Kiarie represented the respondents. 14. We have considered the memorandum of appeal, the submissions and the authorities cited by the parties, examined the record of appeal and analysed the law. As a rst appellate court, an appeal is by way of a retrial and the principles upon which this Court acts in such an appeal are well settled. Briey put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. (See Gitobu Imanyara & 2 others vs Attorney General [2016] eKLR). 15. To formulate the germane issues for determination, we shall summarize the facts as captured in the record of appeal. From the record, the respondents called PW1, one Collins Kipruto, described as court sta in the ELC registry, who produced the proceedings in Eldoret Miscellaneous Application No. 150 of 1997 – Patrick Nyoko Muchori, Stephen Kamau and Juma Baiya vs. Saboti Land Disputes Tribunal and Peter Macharia. His evidence was that there was a ruling delivered on 26th February 1997 which quashed the decision of the Land Disputes Tribunal. 16. PW2, Eunice Mugure Muchori, the wife to the late John Muchori Baiya, told the court that her husband purchased a total of 9 acres from his brothers and later on, a dispute arose between her https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1891/eng@2026-09-25 3

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husband and the appellant. The case was then taken to the tribunal and the elders awarded the appellant 9 acres. That decision was then taken to Kitale PMCC No. 84 of 1985 and adopted as an order of the court on 20th June 1985. An order of stay of execution was then granted on 7th July 1985 and her husband led Eldoret Miscellaneous Application No. 150 of 1997 which was transferred to Kitale and became Kitale Miscellaneous Application No. 51 of 1997. The court then issued a ruling on 26th February 1998 quashing the award. She stated that they learnt that the appellant took the title and subdivided it ignoring the court order that was in place. 17. Testifying as PW3, Stephen Kamau Kairu, a brother to the late John Muchori Baiya stated that he purchased 3 acres of land which he later sold to his brother. He further testied that Augustine Muchori and one Kabira also sold 4.5 acres and 1.5 acres to the late John Muchori Baiya. 18. After the respondents (who were the plaintis in the ELC) closed their case, the appellant’s advocate applied for an adjournment, which the court declined. The le was placed aside to enable the advocate who was holding brief for the appellant’s advocate to prepare. The record shows that at 1.40 pm the court made a ruling that the appellant’s case was deemed closed. The case was reserved for judgment on 20th February 2020. The judgement was not delivered on that day and the record shows that the appellant led an application dated 25th July 2020. Upon the application being heard, the case was reopened for defence hearing and the appellant as the administrator of the estate of the late Kariuki Macharia Kariuki, took the witness stand. The court then admitted the replying adavit dated 17th November 1999 as a witness statement. It was acknowledged that the dispute between John Muchori Baiya and his father was heard by the tribunal which awarded his father 9 acres; which award was subsequently challenged vide Eldoret JR No. 150 of 1997 and quashed by the court. He acknowledged that the land was registered in the names of four dierent persons in 1997. 19. Upon perusing the record of appeal, we note that the tribunal’s decision, which was adopted as a decree of the magistrates’ court, awarded the appellant 9 acres of land comprised in plot no. K8 as follows: “ Mr. Kariuki Macharia reserves the right to maintain his land of 9 acres of which he was allocated K8 along with the 16 other members.’’ 20. This award was eventually challenged by way of Judicial Review, and a ruling dated 18th December 1996 was issued by the High Court in Eldoret High Court Miscellaneous Civil Application No. 347 of 1995, granting leave for the applicant to institute judicial review proceedings and staying the decision of the Tribunal. The decision of the Tribunal was then quashed by the High Court in Kitale High Court Miscellaneous Application no. 51 of 1997 vide a ruling dated 17th December 1997 on the basis that the tribunal lacked jurisdiction. As stated by the trial Judge, the consequence of this decision was that the ownership reverted to the late John Muchori Baiya. 21. The gravamen of the suit in the trial court was the subdivision of K8 in contravention of the stay orders of the High Court and the appellant conceded that there was subdivision of plot no. K8 in 1997 resulting in Kiminini/Kapkoi Block 2/Wamuini ‘B’/169, Kiminini/Kapkoi Block 2/Wamuini ‘B’/ 742, Kiminini/Kapkoi Block 2/Wamuini ‘B’ /743 and Kiminini/Kapkoi Block 2/Wamuini ‘B’/744. However, the appellant contends that the deceased was never served with the stay order and gives two dierent accounts on the subdivision. On one hand, he contends that it was pursuant to the Will of the late Kariuki Macharia while on the other hand, he claims that it was pursuant to two Wamuini ‘B’ Members Annual General Meetings of 6th May 1994 and 15th April 1995. We have looked at the Will and the minutes of the Annual General Meetings and there is no compelling evidence to support these claims. Equally, none was produced before the trial Judge. It is our considered view that in light of the existence of the stay orders, there were no ownership rights that could have emanated from the award https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1891/eng@2026-09-25 4

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of the tribunal. This Court has held that a court of law cannot sanction an illegality or give its seal of approval to an illegally or irregularly obtained title (See Funzi Island Development Limited & 2 others vs County Council of Kwale & 2 others [2014] KECA 882 (KLR). Additionally, in General & another vs Hussein & 3 others [2025] KECA 1022 (KLR) this Court held as follows; “ Even though the law provides for the principle of indefeasibility of title, the same is not absolute. The title should not have been acquired illegally, unprocedurally, or through a corrupt scheme.” 22. The appellant alludes to a nding stripping the appellant of his membership in the scheme known as Wamuini Farm ‘B’. We reiterate that the sole issue for determination was the cancellation of the titles and there was no order or direction on any membership of the appellant. 23. We further note that the appellant also argues that the trial Judge failed to consider that there was no evidence on the sale of the additional plots to the late John Muchori Baiya. This argument is misplaced as the issue before the trial Judge did not relate to the ndings of the tribunal. The proper forum to address the issues that were raised before the tribunal, including the sale of the disputed parcels of land, would have been an appeal against the Judicial Review decision. The suit before the ELC pertained to the subdivision of the parcel contrary to an existing stay order and no more than that. Therefore, the learned Judge did not err in not considering issues pertaining to the sale of the land to John Muchori Baiya. 24. The appellant further contends that the learned Judge erred in law and fact by expunging the appellants’ evidence from the court record and disqualifying the appellants’ crucial witness from testifying. It was submitted that this was through the ruling dated 30th July 2020. This ruling pertained to an application by the respondents seeking to have the documents led by the appellant after the hearing date expunged and that the witness known as Joseph Wainaina Ndungu be disqualied. The court considered the pleadings and submissions of the parties and held as follows; 6. The wheels of justice grind slowly, so said Shakespeare and this appears to be too true in this case. However, the euxion of time due to the need to observe statutory timeframes for the taking of action e.g. 15 days to le appearance, a specied number of days to le defence and so on, as well as the need for parties to await their turn while the court schedule regarding the hearing of other matters is being expended should be distinguished from a party’s wilful or even negligent delay to take action in a matter. 7. This court has granted the defendant an opportunity to be heard by setting aside directions made on 26th November, 2019 denying him a chance to do so notwithstanding that those directions were procedurally made. The Ruling delivered on 30/6/2020 gave him a second chance. The Ruling also ordered that for eective case management and to stamp out any delaying tactics by the defendant no interlocutory application could be led in the matter without leave of court. The court ordered that the hearing do proceed on the basis of the documents on the record. No leave to le an application was sought. The orders made on 30/6/2020 are still in force. 30 days after the orders were made the defendant is still in default, for this court, owing to those orders, cannot see or purport to see or take cognisance of documents led without leave against the letter of spirit of those orders. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1891/eng@2026-09-25 5

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8. For those reasons, I agree with Mr. Kiarie’s application and I order that all the documents led on 27/7/2020 by the defendant be expunged from the record and the defendant’s second witness, one Joseph Wainaina Ndungu be disqualied. 9. The hearing shall proceed on the basis of any documents the defendant had led in compliance with Order 11 of the Civil Procedure Rules before the Ruling made on 30/6/2020 was issued.” 25. The appellant intimated to the court that he would appeal the order and after that there was no action taken. It is our considered view that this ground is an afterthought and there was no miscarriage of justice that was occasioned. Given the age of the matter and the time at which the appellant sought admission of additional statements and evidence, the trial Judge exercised his discretion in the interest of justice. We so nd. 26. The upshot of the foregoing is that when all the grounds of appeal are considered in totality, they are unmeritorious. Consequently, we dismiss the appeal with costs to the respondents. As a result, we uphold all the orders that were issued vide the decree dated 17th December 2020. DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF SEPTEMBER, 2026. M. GACHOKA C.Arb, FCIArb. ……………………………………………………………… JUDGE OF APPEAL W. KORIR ……………………………………………………………… JUDGE OF APPEAL L.M. NDOLO ……………………………………………………………… 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/2026/1891/eng@2026-09-25 6

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