Wanjohi v Gathenji & 11 others (Environment and Land Case Civil Suit E009 of 2023) [2026] KEELC 1954 (KLR)

4. That the plaintifi/respondent, either by herself, her relatives, servants or anyone claiming through her, be restrained from entering and utilising the suit premises pending the hearing and determination of the application herein and the main suit interparties. 5. That the costs of this application be provided for. 4. The application is supported by the afidavit of the 1st and 2nd Defendant/Applicants. The first applicant deposed that she is the wife of the late Simon Gathenji Ndirangu, who passed away in 2016. She filed a succession cause for the administration of his estate in Karatina Magistrates Court Succession No. 81/2019. Among his assets was the suit land, Konyu/Baricho/2387, which she states she inherited. 5. The 1st Applicant claims that the suit land was acquired in 1997 from one Jedidah Kabecha Mathenge (Deceased). She attached the application for Land Control Board Consent to transfer and the consent from the Mathira Land Control Board. She also attached the transfer documents. Her husband was given vacant possession immediately, and they started utilising the land. In 2020, the 2nd Applicant bought the land from her, and subsequently she subdivided it into 24 portions and sold some to the 3rd to 11th Applicants and retained others. 6. She deposed that the Respondent had filed a suit, Nyeri CMC 95/2012, against another purchaser to an adjacent parcel, Konyu/Baricho/2389, and placed a restriction on the land, but the suit was later dismissed, thus removing the restriction on her husband’s land. 7. The 1st Applicant contends that the Respondent was fully aware of the succession proceedings regarding her husband's estate, but never objected nor protested to her inheriting the suit land. 8. That after the unfortunate death of her husband, the 1st Applicant deposes that their house was burnt down in a fire incident, and she lost everything, thus she has no documents of the transaction between her husband and the late Jedidah Kabecha Mathenge, who sold him the land. 9. The 2nd Applicant, Geofirey Mwangi Wanjau, swore an afidavit in support of the application herein stating that he purchased the suit land from the 1st Defendant/Applicant after carrying out due diligence. He subdivided the land into 24 portions and sold some to 3rd parties. He claims that the 1st Applicant obtained title to the land legally following the correct procedure. 10. He stated that the Plaintifi is his neighbour, having inherited her land from Jedida Kabecha Meathenge. He stated that he and other 3rd parties have developed the suit parcels of land by putting up permanent residential houses. That the orders made by the court on 1st August 2025 are prejudicial to him and other applicants, and he seeks that the orders be set aside and be substituted with an order to maintain the status quo. He undertakes not to sell, charge, or transfer the land pending the hearing and determination of the suit. The Plaintifi/Respondent’s replying afidavit 11. In response, the Plaintifi/Respondent swore a replying afidavit on the 3rd of September 2025, in which she deposed that this Court fully heard her application dated 31st October 2023 and rendered its ruling. If aggrieved, the only option that the Defendants/Applicants have is to appeal the ruling. 12. The Respondent noted that the Applicants had the opportunity to table all evidence before the Court and chose not to during the hearing of the Application dated 31st October 2023. 13. She contends that the Applicants have not demonstrated any new evidence and that the veracity of the documents that they have tabled before the court must be examined during a full hearing; thus, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1954/eng@2026-02-26 2

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they have not met the threshold to be granted a review. The Respondent prayed that the application be dismissed with costs. The Defendant/Applicant's submissions 14. Counsel for the Defendant/ Applicants submitted on the preliminary objection on the ground that the suit is time-barred, stating that the suit herein is based on fraudulent transfer of land by the 1st Defendant's husband. They submit that ownership of the suit land passed to the 1st Defendant's late husband on 11th December 1997, 26 years before the present suit was filed. 15. Counsel further submitted that the transfer of land documents for the suit land was registered in 2011, exactly 12 years before this suit was filed. She claims that the Plaintifi knew about the land transactions on the suit land since she lives on the adjacent land and had filed a suit in relation to the suit land, which suit was dismissed. 16. On the second ground of the PO, Counsel submitted that the Defendant/Applicants are innocent purchasers for value without notice and their rights are protected under Section 93 of CAP 160 Laws of Kenya. 17. On the application for stay and order of status quo, the Applicants claim to have been in possession of the suit land with the knowledge of the Plaintifi since 1997. Counsel submitted that the orders sought for stay, review and setting aside of the orders of 1st August 2025, were sought pending hearing and determination of the PO. The Plaintifi/Respondent’s submissions 18. Counsel for the Plaintifi/Respondent submitted on the Defendants’ preliminary objection, submitting that it is not based on a pure point of law as was held in the authorities of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. [1969] EA 696 and Oraro v Mbaja(2005)1KLR 141. 19. Regarding the first point on the time bar, it is submitted that the same requires interrogation of the disputed evidence of when time began to run against the Plaintifi’s claim. She submitted that she only came to learn of the alleged transfer of the suit land to Simon Gathenji, then to the 1st Defendant and ultimately to the 2nd Defendant, only when encroachment began. 20. The Plaintifi urged the Court to dismiss the Defendant’s Application with costs. Analysis and Determination The Preliminary Objection 21. The Court will address the preliminary objection first as a matter of priority because it questions the validity and propriety of the entire suit. If upheld, it will render further proceedings before the court unnecessary. According to Black's Law Dictionary, a Preliminary Objection is defined as being: “ In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1954/eng@2026-02-26 3

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22. The above legal preposition was cemented in the famous case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. [1969] EA 696. The Court then held that: “ A preliminary Objection is in the nature of what used to be a demurrer, as it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop" 23. Counsel for the Respondent relied on the authority in Oraro v Mbaja [2005] eKLR, where the court stated that; “ I think the principle is abundantly clear. A "preliminary objection", correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and, in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. I am in agreement with learned counsel, Mr Ougo, that “where a Court needs to investigate facts, a matter cannot be raised as a preliminary point.” This legal principle is beyond dispute, as there are diverse weighty authorities carrying the message” The Court went on to state that; “ As already remarked, anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence. If the Applicant’s instant matter required the afidavit of Barak Eston Mbaja dated and filed on 7th October, 2004, to give it validity before the Court, then it could not be allowed to stand as a preliminary objection which must be on a pure point of law." 24. The first point raised by the Applicants is that the suit is statutorily time-barred under the Limitation of Actions Act, CAP 22. Section 7 thereof provides that: “ An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” 25. To establish when the right claimed by the Plaintifi over the suit property accrued, the Court must deeply examine all the evidence on record. The Applicants claim that the cause of action accrued when ownership of the suit land passed to her late husband on 11th December 1997. The 1st Applicant further claims that this was the period when deceased seller Jedida Kabecha Mathenge obtained Land Control Board consent to transfer the land. She also claims that she and her family have been in possession of the land since 1997. She further states that the transfer of land was registered in 2011, more than 12 years before the filing of the present suit. The Applicants also rely on the fact that the Plaintifi/Respondent filed a restriction pending another case, Nyeri High Court Civil case No. 95 of 2012, which case was dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1954/eng@2026-02-26 4

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26. On the other hand, the Plaintifi/Respondent’s claim is based on fraudulent acquisition of land by Simon Githinji Mathenge (deceased), husband of the 1st Defendant/Applicant, from the late Jedida Kabecha Mathenge. She further claims that the land was fraudulently transmitted to the 1st Defendant, who sold it to the 2nd Defendant, who subdivided it and sold it to the other defendants. She states in the plaint that she got to know about the fraudulent transactions when some strangers entered the suit land and purported to demarcate and fence the land, whereupon inquiry from the Nyeri County Lands registry, she discovered the illegal transactions. 27. The Court is of the view that many issues of fact raised in the pleadings are contested. Some of them are the question of when the cause of action herein accrued. Some of the factual issues for determination are whether there was any transaction of sale of the suit land between the initial owner, Jedida Kabecha and Simon Githinji (deceased) or whether registration of the land in 2011 in the name of the said Simon Githinji was illegal and fraudulent. Further, the question of when the Plaintifi became aware of the alleged fraudulent and/or illegal transactions is a factual matter that is contested and is subject to the court's determination. 28. It is the Court's view that all the above matters of fact require examination and determination, and the same cannot be determined as a preliminary objection. Lady Justice Mary Kasango in Kenya Breweries Limited & another v Keroche Breweries Limited [2020] eKLR stated: A "preliminary objection" correctly understood is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and, in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point… 29. The second ground relied on in the preliminary objection is that the Applicants have valid titles under Section 93 of the Law of Succession Act, CAP 160. The said section provides that the validity of transfer should not be afiected by the revocation of representation and states that; (1) All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act, by a person to whom representation has been granted, shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act. (2) A transfer of immovable property by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all the debts, liabilities, funeral and testamentary or administration expenses, duties, and legacies of the deceased have not been discharged nor provided for. 30. In the Court’s view, the above provision of the law does not apply in the circumstances of this case since the titles to the suit land are not challenged on the ground of revocation or variation of the grant issued to the 1st Defendant/Applicant. The validity of the titles to the suit land is challenged on the ground of fraud that goes beyond the time the succession cause was filed, heard and determined. 31. To examine the validity of a title, the Court must interrogate the genuineness of the title deed and the process of acquisition of the title. This is as provided under Section 26 of the Land Registration Act, which provides that a Certificate of title is to be held as conclusive evidence of proprietorship and states as follows: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1954/eng@2026-02-26 5

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(1) 32. The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. In Dina Management Limited v County Government of Mombasa & 5 others [2023] eKLR, the Supreme Court of Kenya ruled that a certificate of title is not absolute evidence of ownership if the root of the title is tainted by illegality. The court established that even a bona fide purchaser cannot claim protection if the initial allocation of the land was procedurally fiawed or fraudulent. In the present case, one of the issues to be determined by the Court is the validity of the title documents held by the Defendants. The said titles cannot, therefore, form the basis for dismissal of a suit at the preliminary stage. The Application 33. The Court will first deal with prayer 3 of the application dated 21st August 2025, which seeks to review, vary and/or set aside the ruling of this Court delivered on 1st August 2025. The said ruling granted the Plaintifi herein an order of temporary injunction against the Defendants, restraining them from entering or dealing with the suit land and an order of inhibition against registration of any dealings on the resultant subdivisions of the suit property to take efiect. 34. The reasons in support of the prayers sought are clearly stated in the supporting afidavits and submissions as summarised above. The statutory provisions governing applications for review and setting aside of Court orders are Section 80 of the Civil Procedure Act, CAP 21 and Order 45 of the Civil Procedure Rules, 2010. Section 80 of the Act provides that: “ Any person who considers himself aggrieved— 35. (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit” Order 45 Rules 1 of the Civil Procedure Rules provides that: “ Any person considering himself aggrieved— (a) 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1954/eng@2026-02-26 6

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of some mistake or error apparent on the face of the record, or for any other suficient 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.” 36. Mativo J (as he then was), in the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, elaborated the principles of review to the efiect that: “ My finding is fortified by the holding in the case of Evan Bwire v Andrew Nginda, where the court held that 'an application for review will only be allowed on very strong grounds, particularly if its efiect will amount to re-opening the application or case afresh. The principles which can be culled out from the above-noted authorities are:i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise. ii. The expression "any other suficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds. iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of the record, justifying the exercise of power under Section 80. iv. An erroneous order/decision cannot be corrected in the guise of the exercise of the power of review. v. A decision/order cannot be reviewed under Section 80 based on a subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court. vi. While considering an application for review, the court must confine its adjudication to the material available at the time of initial decision. Subsequent events or developments cannot be used in declaring the initial order/decision as vitiated by an error apparent. vii. Mere discovery of new or important matter or evidence is not suficient ground for review. The party seeking review also has to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier. viii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima facie visible and does not require any detailed examination. In the present case, the petitioner has not been able to point out any error apparent on the face of the record. ix. Section 80 of the Civil Procedure Act provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof, and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1954/eng@2026-02-26 7

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x. The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1.” 37. Having examined the grounds in support of the application herein, the Court is of the view that there is no new and important matter or evidence which, after the exercise of due diligence, was not within the Applicants’ knowledge or could not be produced by them at the time when they responded to the application dated 31st October 2023 and at the time when the ruling dated 1st August 2025 was made and orders in question were issued. There is no evidence that the documents annexed to the supporting afidavit were not available to the Applicants or that the matters raised in the documents were not within the Applicants’ knowledge. 38. Further, there was no error apparent on the face of the record that has been demonstrated by the Applicants. “Error apparent” is described by Mativo J (as he then was) in the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) as follows: “ There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. A review lies only for patent error where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out, see the decision in Thungabhadra Industries Ltd. v. Govt. of A.P.1. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Act. 39. From the foregoing, the court is of the view that the Preliminary objection and the application dated 21st August 2025 are lacking in merit and ought to be dismissed by the Court. Having found thus, the Court finds it unnecessary to determine prayer 4 of the application herein, which seeks an injunction against the Plaintifi/Respondent. This is for the further reason that the court already issued an order of injunction in favour of the Plaintifi, and the same shall remain in force. 40. The final order of the Court is that the Preliminary Objection dated 22nd March 2025 and the application dated 21st August 2025 are dismissed with costs to the Plaintifi/Respondent. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT NAIROBI, THIS 26TH DAY OF FEBRUARY 2026. HON. LADY JUSTICE L.G. KIMANI JUDGE In the Presence of:Brian: Court Assistant Mrs Wahome for the Defendant/Applicants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1954/eng@2026-02-26 8

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Muthigani for the Plaintifi/Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1954/eng@2026-02-26 9

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