Ndambiri & another v Kiura substituted in place of Simon Kiura Muchira & another (Environment and Land Appeal E012 of 2025) [2026] KEELC 5227 (KLR)

1. This appeal challenges the Judgment rendered by Hon Mary Wanjiru Njuguna, Senior Resident Magistrate, on 31st January 2025 in Gichugu MC E & L Case No. E030 of 2022. The 1st and 2nd Appellants are the 1st and 2nd defendants in the lower court whereas the respondent was the plaintiff therein. 2. The dispute in the lower court concerns parcel No. BARAGWE/RAIMU/2659, which the 1st respondent alleged was subdivided to parcel no. BARAGWE/RAIMU/3077 and BARAGWE/RAIMU/3076 by the appellants in collusion with the land registrar without any colour of right and the same transferred to 1st and 2nd appellants, complete with title deeds. 3. The key questions that fell for determination before the trial court were; a) Whether the suit was statute barred; b) Whether the appellants acquired the suit parcels through adverse possession; KERUGOYA ELC LA E012 OF 2025 2

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c) Whether there was a valid sale of parcel a valid sale of parcel constitute parcel Baragwe/Raimu/3076; d) Whether there was Baragwe/Raimu/3077; e) Whether the two parcels Baragwe/Raimu/2659; f) Whether fraud and collusion between the appellants had been proved and; g) Whether the 1st respondent is entitled the prayers sought. 4. Before I analyse and dispose the issue, I will outline, in brief, the background to the appeal; the grounds of appeal cited and the parties’ respective submissions in respect to the appeal. B. BACKGROUND 5. Through a plaint dated 1st September 2022, the 1st respondent instituted Gichugu MC E&L Case No. E30 of 2022 against the appellants, seeking: KERUGOYA ELC LA E012 OF 2025 3

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1) That the title to parcel Baragwe/Raimu/3077 and Baragwe/Raimu/3076 be revoked and the same revert back to the names of the 1st respondent; 2) The cost of the suit and; 3) Any other orders the court may deem fit to grant. 6. The case of the 1st respondent was that at all material times of the suit, he was the registered owner of parcel Baragwe/Raimu/2659, which was subdivided into parcels No. Baragwe/Raimu/3077 and Baragwe/Raimu/3076. 7. The 1st respondent contended that the 2nd respondent colluded with the appellants and transferred the suit land and issued title deeds in their names. The 1st respondent itemized particulars of fraud by the appellants and the 2nd respondent, and added that as a result of their actions, he had been deprived his land. 8. The appellants filed a joint statement of defence and counterclaim in which they contested the 1st respondent’s claim. The case of the appellants was that the plaint was defective and has no reasonable cause of action against them. KERUGOYA ELC LA E012 OF 2025 4

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9. Upon receiving evidence and submissions, the trial court reached a finding that the 1st respondent had proved his case and was granted the reliefs sought. C. APPEAL 10. Having been aggrieved by the findings and decree of the trial court, the appellants brought this appeal, advancing the following eleven (11) grounds of appeal; 1) The Learned trial Magistrate erred in law and fact in failing to make a finding that the registered owner was involved all through in the sale and transfer of land parcel numbers Baragwe/ Raimu/3076 and Baragwe/Raimu/3077. 2) The Learned trial Magistrate erred in law and in fact in failing to recognize the family agreement that led to subdivision of land parcel number Baragwe/Raimu/202 into 8 portions in that the sons were entitled to resultant portions which informed the decision KERUGOYA ELC LA E012 OF 2025 5

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to have the son of Simon Kiura Muchiri by name Julius Muriithi Kiura signing the agreements as the beneficial owner of land parcel number Baragwe/Raimu/2659, later subdivided into parcels Baragwe/Raimu/3076 and 3077, and the registered owner Simon Muchiri would sign the agreements as a witness. 3) The Learned trial Magistrate erred in law and in fact when she made a finding that no document was produced to show that application for consent of land control board for parcel number Baragwe/Raimu/3076 was made, and that no consent was given, when the said documents were produced, but of importance is failure to appreciate the provisions of section 20 of the Land Control Act Cap 302 Laws of Kenya. 4) The Learned trial Magistrate erred in law and in fact in making unnecessary heavy KERUGOYA ELC LA E012 OF 2025 6

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whether as to the date appearing in the application form for consent to transfer L.R No. Baragwe/ Raimu/ 3077,but failed to consider when the same was presented to the land control board and date of issuance of the letter of consent for subdivision of land parcel number Baragwe/Raimu/2659 and of transfer of parcel number Baragwe/Raimu/3077. 5) The Learned trial Magistrate erred in law and in fact in making a finding that the consent to transfer Baragwe/Raimu/3077 was parcel number dated 24/9/2010 when indeed it was issued on 24/11/2010. 6) The Learned trial Magistrate erred in law and in fact in that whereas she correctly cited the case of John Bwire vs Joram Said Wayo & another, she erred in shifting the burden of proof to the appellants, when the first respondent had not adduced any evidence in support of his case. KERUGOYA ELC LA E012 OF 2025 7

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7) The Learned trial Magistrate, while making a determination as to whether there was valid sale of land Baragwe/Raimu/3077, parcel erred number in failing to consider clause 5 of the sale agreement dated 3rd September 2010, and therefore the total amount paid was more than the purchase price indicated in the sale agreement dated 3rd September 2010 and the addendum agreement dated 28th October 2010. 8) The Learned trial Magistrate erred in law and in fact in failing to make a finding that the documents required for subdivision of land parcel number Baragwe/Guama/2659 and the eventual transfers of two resultant portions were signed by the registered owner and who signed the sale agreements. 9) The Learned trial magistrate erred in law and in fact in making a finding that fraud had been proved KERUGOYA ELC LA E012 OF 2025 as against the appellants, 8

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whereas the 1st respondent failed to discharge the burden on the required standards. 10) The learned trial magistrate erred in law and fact in failing to make a finding that the case was an afterthought, while considering the time the transfers were effected in favour of the appellants with full knowledge of the 1 st respondent and when the case was filed in court. 11) The judgement was against the weight of the pleadings, the evidence and the applicable legal principles. 11. The appellant urged this court to allow the appeal and set aside the impugned Judgement in its entirety with directions that costs of both the appeal and the suit in the lower court, be borne by the 1st respondent D. APPELLANTS’ SUBMISSIONS KERUGOYA ELC LA E012 OF 2025 9

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12. The appellants filed written submissions dated 26th February 2026 through M/s Maina Kagio & Company Advocates. Counsel for the appellants identified fraud as the main issue for determination claiming that the same was never proved. Counsel relied on the case of Re estate of Pradeep Behai (deceased) 2019eKLR. 13. Counsel added that to controvert the allegations of the 1st respondent, the appellants had produced: (i) A sale agreement dated 3/9/2010; (ii) A copy of the addendum agreement; (iii) A copy of acknowledgement slip; (iv) A copy of the application for consent of the land board; (v) A letter of consent dated 29/9/2010; (vi) Analysis report and demand notices. 14. Counsel contended that Julius Muriithi Kiura was selling a portion of 0.10 hectares from land parcel Baragwe/Raimu/2659, which was to be registered in the name KERUGOYA ELC LA E012 OF 2025 10

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of Simon Kiura Muciri for Kshs. 140,000. Counsel added that kshs.60,000 was paid on the date of the agreement. Counsel argued that on 28th October 2010, the parties had a further agreement for an extra portion of 0.10 hectares for a consideration of kshs.140,000. 15. Counsel submitted that as of 28th October 2010, the appellants had paid Kshs 100,000, leaving a balance of kshs.180,000. Counsel further submitted that on 24th November 2010, a consent of the land control board was granted for transfer of parcel Baragwe/Raimu/3077 from the 1st respondent to the appellants, adding that on 4th February 2011, the 1st appellant in the presence of the registered owner of the land and also the father, received a further amount of Kshs 150,000 and the balance was kshs.30,000. In the upshot, the appellants contended that this was ample evidence of purchase and lawful transfer of land parcel number Baragwe/Raimu/3077 to the appellants, which measures 0.20 hectare 16. On whether the suit land was transferred illegally without the consent of the 1st respondent, counsel argued that the documents on record are clear that the 1st respondent signed KERUGOYA ELC LA E012 OF 2025 11

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the application forms of the land control board and he attended the same, thus the 1st respondent's claim was false. Counsel contended that despite the allegation of forgery of documents, no document examiner's report was provided. 1ST RESPONDENT’S SUBMISSIONS 17. The 1st respondent opposed the appeal through written submissions dated 7th May 2026, filed by M/s Wandia Murimi Advocates. The 1st respondent’s counsel identified the following five (5) issues as falling for determination; 1) Whether there was a valid sale by a person with capacity to sell; 2) Whether the land control board consents were lawfully obtained; 3) Whether fraud was proved and the burden of proof correctly applied; 4) Whether the suit is statute barred or an afterthought; and; KERUGOYA ELC LA E012 OF 2025 12

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5) Whether the judgement is against the weight of the pleadings, evidence and applicable legal principles. 18. On whether Julius Muriithi Kiura had capacity to sale the suit parcel on behalf of his father, counsel submitted that only a registered proprietor may execute a valid instrument of transfer and that the green cards confirmed that Simon Kiura Muchiri was the registered proprietor of parcel Baragwe/Raimu/2659 while the sale agreements dated 3rd September 2010 and 28th October 2010 identify Julius Muriithi Kiura as the vendor yet no power of attorney or instrument of transfer was produced by the appellant. Counsel relied on the case of Bishopgate Motor Finance Corporation Ltd v Transport Brakes Ltd (1949)1KB and Diamond Trust Bank Kenya Ltd v Said Hamad Shamisi & 2 Others (2015) eKLR, and Peter Kaguara Uiru v Peter Githua Chege & Another Nakuru ELC No. 468 of 2013 (2020)KEELC 3569 (KLR). 19. On whether the Land Control Board consent was lawfully obtained, counsel submitted that the appellants produced an KERUGOYA ELC LA E012 OF 2025 13

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application for consent to transfer dated 8th September 2010 in respect of parcel Baragwe/Raimu/3077 and a consent letter for subdivision of the mother title dated 29 th September 2010. Counsel further submitted that the appellants produced no application for consent in respect of parcel Baragwe/Raimu/3076. Counsel added that the transaction in respect of parcel Baragwe/Raimu/3076 is void under Section 6 (1) of the Land Control Act. Counsel relied on the case of Kulankash v Okeyo & Anor(2025)eKLR. 20. On whether fraud was proved, counsel submitted that the 1st respondent was aware that Simon Kiura Muchiri was the registered proprietor and that DW2 alleged that the 1st respondent accompanied the parties to the Land Control Board, which the 1st respondent denied hence, the appellants knew the person who signed the sale agreement was not the registered owner. Counsel added that no Land Control Board consent exists for parcel 3076 and that the evidence of payment is inconsistent in different documents. Counsel cited the pronouncement in Vijay Morjaria v Nansingh Madhusingh Darbar & Anor (2000)eKLR, Tum & 2 Others vs Towett & 5 Others (2022)KEELC 13790 (KLR) and KERUGOYA ELC LA E012 OF 2025 14

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Central Bank of Kenya Ltd vs Trust Bank Ltd & 4 Others (1996)eKLR. 21. On whether the suit is statute-barred, counsel submitted that the appellants contended, the suit is statute barred because the transfers were registered in 2011 and the suit was filed in 2022. Counsel however averred that section 26 of the Limitation of Actions Act provides that time starts running when the fraud is discovered. Counsel relied on the case of Murai & another v Estate of Francis Gaaki Kagunda & 9 Others (2025)eKLR. E. ANALYSIS AND DETERMINATION 22. I have read and considered the original record of the trial court; the record filed in this appeal; the grounds of appeal; and the parties’ respective submissions in the appeal. I have also considered the relevant legal frameworks and jurisprudence. 23. The only two issues that crystallize for determination in this appeal. are: (i) whether the 1st respondent proved fraud in the transfer of the suit parcels KERUGOYA ELC LA E012 OF 2025 15

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by the appellants in collusion with the 2nd respondent (ii) whether the court should grant the orders sought. 24. Before I analyse and dispose of the issues, I will outline the principle that guides this Court when exercising appellate jurisdiction. This is a first appeal. The task of a first appellate court was summarized by the Court of Appeal in the case of Susan Munyi v Keshar Shiani (2013) eKLR where the court, stated as follows; “As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.” 25. The principle was similarly outlined in Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows: KERUGOYA ELC LA E012 OF 2025 16

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“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re- analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 1) Was The Allegation Of Fraud Proved Against The Appellants And 2nd Respondent? 26. In respect to this issue, the 1st respondent pleaded that at all times he was the registered owner of Baragwe/Raimu/2659, which was subdivided into parcels Baragwe/Raimu/3077 and Baragwe/Raimu/3076. The 1st respondent contended that the appellants, in collusion with the 2nd respondent, transferred the suit land and title deeds were registered in their names. On the other hand, the appellants denied the 1st respondent's claim and contended that the plaint is defective as no reasonable cause of action had been established against them. KERUGOYA ELC LA E012 OF 2025 17

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27. During the hearing, Wanjiru Simon Kiura testified as PW1, where she adopted her witness statement dated 1st March 2023 as part of her testimony in chief. The witness then produced the following documents as exhibits, in support of her case; 1) A copy of searches for Baragwe/Raimu/3076 and 3077; 2) A copy of the green card for Baragwe/Raimu/2659; 3) An OB dated 27th August 2020; 4) Sale of land agreements dated 3 rd September 2010 and 28th October 2010; 5) Photographs of Julius Muriithi Kiura. 28. During cross-examination, the witness confirmed that though she was not a witness to the agreement, she was aware of the parcel sold. The witness further confirmed that her father did go to the Land Control Board for parcel 202 which caused subdivision of eight other parcels. From the eight, her father gave his children, a parcel each and remained with one, which was no. 2659. She further stated that some people were taken to court after her father reported the case to Criminal Investigation KERUGOYA ELC LA E012 OF 2025 18

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Department but she was not apprised of the current status of the investigations. PW1 added that parcel no. 2659 was further divided into parcels no. 3076 and 3077. It was her testimony that her brother, in 2010 was not of sound mind, and the allegations that both his father and brother sold the land to the appellants was false. 29. Nancy Wamuyu Muchira testified as DW1. She adopted her statement dated 23rd January 2024 as part of her evidence in chief and produced the following documents; (i) a copy of the sale agreement; (ii) copy of addendum agreement; (iii) copy of the application for consent of the land board; (iv) copy of the acknowledgement slip; (v) letter of consent dated 29/9/2010; (vi) letter of consent dated 24th November 2011; KERUGOYA ELC LA E012 OF 2025 19

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(vii) National police service forensic finger prints analysis report; (viii) demand notice dated 15th February 2022 and a demand notice dated 19 th February 2022. 30. During cross-examination, DW1 testified that, together with her husband, they bought the suit land from Simon Kiura Muchiri. She averred that they bought 0.1 Ha and another 0.1 Ha, making a total of ½ acre. DW1 reiterated that at first, they bought ¼ acre in the first agreement which was followed by another 1/4 an acre. In total, she submitted that she bought a third quarter and she has an agreement to prove the same. 31. On the agreements, she confirmed that the same were taken to DCI for verification of their thumbprints. The witness confirmed to have handed over two agreements dated 3.9.2021 and another dated 28.10.2010. The DCI also took the acknowledgement dated 4.2.2011. However, from the police document they submitted that was dated 3.2.2021, it showed only two documents were KERUGOYA ELC LA E012 OF 2025 presented for the fingerprint 20

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verification. The agreement dated 3.9.2010 which she relied in court was not one of them. 32. The 2nd appellant confirmed that the agreement dated 31.3.2011 was signed by both the witness and Simon Muriuki, who was father to Julius Muriithi Kiura. In respect to parcel no. 3076 and 3077, she averred that the same were in the names of Simon Muriuki, and though he claimed they belonged to his son, he ended up executing the agreement on behalf of the son 33. In closing, the 2nd appellant admitted that she bought parcels 3076, 3077 and 3376 each paying their distinct consideration 34. Francis Martin Muthike testified as DW2. He adopted his witness statement on 23rd January 2024. In his cross- examination, he stated that he was a witness to the sale agreements. 35. From this background, was the 1st respondent able to prove fraud within the required evidentiary threshold? To answer this query, I have apprised myself with the law and jurisprudence KERUGOYA ELC LA E012 OF 2025 21

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surrounding fraud. The law is trite and settled that for a claim of fraud to succeed, the claimant is not only required to plead, but also to particularize it by laying out watertight evidence upon which a court would make a finding in their favour. 36. In the case of Kuria Kiarie & 2 others Vs Sammy Magera (2018) eKLR, the court of appeal held that “the next and only issue is fraud. The law is clear and we take it from the case of Vijay Morjaria vs Nausingh Madhusingh Darbar & another (2000) eKLR where Tunoi JA as he then was) states as follows: “It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleadings. The act alleged to be fraudulent must, of course be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts. The same KERUGOYA ELC LA E012 OF 2025 22

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procedure goes for allegations of misrepresentation and illegality. See Order 2 rule 4 of the Civil Procedure Rules. 37. In the present appeal, and drawing evidence from DW1, the witness stated the following; “The two portions 3076 and 3077 were in the name of Simon Kiura. He told us the two portions belonged to his son Julius Muriithi. I do not have a document to show the father had given the son the two portions. Simon was allowed by the son to execute the sale agreement.” 38. From the evidence submitted before the trial court, the 1st respondent was the registered owner of parcel no. Baragwe/Raimu/2659 measuring 0.30 HA. Evidence in form of a search dated 24th July 2017 and a green card dated 22nd May 2024 was proffered in court confirming the same. 39. Parcel no. 2659 was later subdivided into Baragwe/Raimu/3076 measuring KERUGOYA ELC LA E012 OF 2025 0.10 parcel No. HA and 23

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Baragwe/Raimu/3077 measuring 0.20HA. Both parcels were registered in the name of the 1st respondent on 23.11.2010 as was exhibited by a copy of a green card produced in court as evidence (SKM-2). The claim by the appellants that the suit parcels belonged to Julius Muriithi Kiura, the plaintiff’s son who purportedly sold off the parcels to them is materially false. No evidence was produced before the trial court to confirm that the 1st respondent transferred these two parcels to Julius Muriithi Kiura. 40. I have scrutinized the sale agreements purporting to transfer these parcels, to the appellants herein. The appellants produced a sale agreement dated 3.9.2010 which was said to have been entered between the appellants and one Julius Muriithi kiura, son to the 1st respondent. The agreement was in respect to parcel No. 2659. At the descriptive section of this agreement, it is acknowledged that the suit property was owned by the 1st respondent. By dint of this agreement, the sale and subsequent transfer of this parcel to the appellants cannot therefore stand because the agreement was signed and executed by a party who was not the registered owner of the parcel. I rely on the principle of Nemo dat quod non KERUGOYA ELC LA E012 OF 2025 24

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habet in finding that Julius Muriithi Kiura was not the registered owner of parcel no. 2659; thus, he could not sell what he did not own or possess. 41. A similar position holds for other agreements that were produced in court as evidence. The addendum agreement dated 3.9.2010 purportedly sold a portion of 0.10 HA out of parcel no. BARAGWE/RAIMU /2639 said to belong to the 1st respondent but was sold by Julius Muriithi Kiura without basis, ground or capacity. An acknowledgment receipt was also produced dated 4.2.2011 which was also signed by Julius Muriithi Kiura acknowledging receipt of Kshs. 250, 000.00 in respect to the sale of parcel no. 2639 that again, belonged to the 1st respondent. 42. In all these agreements, Julius Muriithi kiura was neither the owner of the parcels and/or had a registered power of attorney that authorised him to sell and transact on behalf of the 1st respondent. What emerges is that, the said Julius Kiura had no capacity to sell the 1st respondent’s parcels to the appellants and on this I am guided by the provisions of KERUGOYA ELC LA E012 OF 2025 25

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Section 24(a) of the Land Registration Act, 2012 which states that; Subject to the act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. 43. From the foregoing discourse, it is my finding that Julius Muriithi Kiura, the purported vendor of parcels no L.R NO. BARAGWE/RAIMU /2639 and L.R NO. BARAGWE/RAIMU/2659 owned by the 1st respondent herein had no capacity to sell the two parcels to the appellants herein, by virtue of him not being the registered owner of the parcels, and having no capacity to transact and/or transfer proprietary interests of the land to the two appellants before court. 44. I note that the 1st respondent did adduce before court, medical reports that demonstrated, Julius Muriithi Kiura was at the time of the alleged sale, mentally unsound. This is evidence that this court cannot ignore. KERUGOYA ELC LA E012 OF 2025 26

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45. The court has weighed the particulars itemized against the appellants herein vis-à-vis those pleaded against the 2nd respondent and, in the totality of the evidence submitted, I find that the 1st respondent discharged her burden of proof on fraud as pleaded, beyond, a balance of probability. 46. In the case of Kinyanjui Kamau v George Kamau (2015), the court of Appeal stipulated the evidentiary burden and proof on matters of fraud. The court held that; “…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & f) 742 wherein the court stated that: “…We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond KERUGOYA ELC LA E012 OF 2025 27

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a reasonable doubt as in criminal cases”…“In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.” 47. From the record, I categorically observe that there was no document produced to demonstrate that an application for consent for parcel no. 3076 was made and that consent for parcel no. 3077 was obtained before the excise of the land. 48. Any purported sale of these properties that stemmed from this irregularity is not only illegal, but void. I therefore agree and concur with the findings of the trial court that the 1st respondent herein did prove her claim on the required threshold of proof to merit the determination arising from the lower court proceedings. 49. Additionally, Sections 107, 108 and 109 of the Evidence Act remain pivotal in determining this dispute. The sections provide; “(107) (1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. KERUGOYA ELC LA E012 OF 2025 28

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(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. (108) The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. (109) The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 50. These provisions reiterate the already settled evidentiary threshold and burden of proof applicable in civil proceedings. 51. The law, tritely posits, that he who pleads must prove. Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 52. From my assessment of the trial court record, I am not persuaded that the appellants proffered sufficient evidence to counter the KERUGOYA ELC LA E012 OF 2025 29

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otherwise, cogent and supported evidence of the 1st respondent about the issues in dispute. 53. As I conclude, I cannot help but observe that the trial court addressed two issues that were never pleaded in the first place. The first issue was whether or not, the suit was statute-barred, and the second issue, was on adverse possession. These issues were raised in submissions and not, in the pleadings. Our courts have in the umpteenth time, stated that issues that fall for determination in a civil suit are to be framed out of the parties’ pleadings. 54. In Raila Amollo Odinga & another v IEBC & 2 others (2017) eKLR, the Supreme Court of Kenya underscored the centrality of pleadings in the adjudication of civil disputes in the following words: “ In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for KERUGOYA ELC LA E012 OF 2025 30

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its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.” 55. In David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] eKLR, the Court of Appeal stated the following on the centrality of pleadings in the adjudication of civil disputes: “It is well established in our jurisdiction that the court will not grant a remedy which has not been applied for, and that it will not determine issues, which the parties have not pleaded. In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleading, each party is left to formulate its own case in its own way.” 56. In Mithamo & another v Mithamo [2024] KECA 1864 (KLR) the Court of Appeal stated as follows: “We take the view that parties should specifically state their claim by properly pleading the facts relied upon and the relief sought, as the pleadings are the primary documents that guide the court and the parties concerning the claim and the contesting positions of the parties.” KERUGOYA ELC LA E012 OF 2025 31

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57. For the above reasons, it was an err for the trial court to invest the weight of analyzing the two issues that had not been pleaded by either party. F. DISPOSITION AND FINAL ORDERS 2) What Orders Are Amenable To Grant? 58. For the above reasons, it suffices to conclude that this court has not found merit in this appeal. The appeal is hereby rejected and dismissed. 59. In tandem with the principle in Section 27 of the Civil Procedure Act, the appellants shall bear costs of the appeal. 60. It is so ordered. JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT CHUKA THIS 30TH JULY 2026. L.T. LEWA JUDGE IN THE PRESENCE OF: 1. Court Assistants – Musyimi/Nelly 2. For the Appellants – Mr. Nyaga, holding brief for Mr. Maina Kagio 3. For the Respondents – Ms. Wandia KERUGOYA ELC LA E012 OF 2025 32

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