Margaret Wanjiru Wairegi v Julius Karongo Kamau

(3)The facts of the case according to the Respondent are as follows. One, her husband, Julius Karongo Kamau, now deceased was a decree holder in Land Disputes Tribunal Case No. 67 of 2002 at the Chief’s Magistrate’s Court at Murang’a where he was awarded a portion of 1.835 acres out of L.R. No. LOC. 8/Thombotho/586. Two, the judgment debtor in that case was Hosea Kamau Macharia who is now deceased. The Appellant is the wife of the said Hosea Kamau Macharia. Three, while the case was proceeding between the husbands of the parties herein, Hosea Kamau Macharia transferred the suit land to his wife’s sister, the Appellant. This transfer was meant to defeat the Respondent’s husband lawful claim to the suit land. The fraudulent transfer of the suit land should not halt the execution of the tribunal award which was adopted as the order of the Court. Finally, the Appellant is fully aware of the fraud perpetrated by her and her sister’s husband. (4)The facts of the case according to the Appellant are as follows. Firstly, LDT Case No. 67 of 2002 involves Julius Karongo Kamau as the Plaintiff and Hosea Kamau Macharia as the Defendant. Secondly, the tribunal made an award in favour of Kamau Macharia against Kamau Karongo Macharia. Each was to set 1.835 acres out of LOC. 8/Thombotho/284. Thirdly, the award was filed in Court on 3-6-2002 and adopted as the judgment of the Court. Fourthly, the Appellant was not a party to the suit. Fifthly, on 26-6-2019, Julius Karongo filed an application dated 12-6-2019 seeking that judgment be executed as per the award and the Applicant be awarded 1.835 acres out of LOC. 8/Thombotho/586. Sixthly, he was seeking to execute a judgment seventeen years after it was entered and this was the first time that the Appellant appears in the proceedings of the case. Further, the said execution was sought in respect of land parcel No. LOC. 8/Thombotho/586 yet the award had been in respect of land parcel No. LOC. 8/Ngerere/Thombotho/284. (5)In his ruling of 20-12-2024 the learned trial Magistrate found that the suit was not caught up by Limitation under Section 4 (4) of the Limitation of Actions Act because time started running on 30-3-2011 and not in the year 2022. Secondly, the Court ordered that judgment be executed as per the award. Finally each party was bear its own costs, (6)The only submissions that I find on record are by the Appellant. No submissions were filed by the Respondent’s counsel even though the Court’s directions dated 7-7-2026 clearly stated MRG ELCLA E002 OF 2025 2J of 6

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that such submissions be filed within 21 days, that is to say, by 28-7-2026. Even though the Appellant’s written submissions have not framed any issue, a discernment of the same reveals the following issues. (a) Whether the decree relates to Land parcel No. LOC. 8/Thombotho/586 or Loc. 8/Ngerere/Thombotho/284. (b) Whether the decree herein can be executed against the Appellant after she was struck out of the suit. (c) Whether the decree herein is caught by the Limitation in Section 4 (4) of the Limitation of Actions Act. (7)I have carefully considered the appeal in its entirety including the records, the grounds of the appeal, the facts of the case, the entire record in Murang’a CM’S LDT case No. 67/2002 and the submissions by learned counsel for the Appellant. This being a first Appeal, this Court must reconsider and re-evaluate the application that was before the Lower Court, assess it independently and draw its own conclusion while bearing in mind that it did not deal with the application first hand and make due allowance for the Lower Court’s advantage in dealing with the application, first hand. See Selle and Another vs Associated Motor Boat Co. ltd and others (1968) E.A. 123 (8)Regarding the first issue, it is my finding that the award dated 28-3-2002 relates to Land reference No. LOC. 8/Ngerere/Thombotho/284measuring 3.67 acres. This is to be found at the bottom of page 3 of the award where it is stated as follows. “FINDINGS OF KAHURO LAND DISPUTE TRIBUNAL Plaintiff is a grandson to Defendant – Hosea Kamau Karongo. The High Court of Kenya at Nyeri Civil case No. 2 of 1982 decided that L.R. LOC. 8/Thombotho/Ngerere/284 measuring 3.67 acres should be shared by the people thus:1. Kamau Macharia to get 1.835 acres and 2. Defendant Kamau Karongo Macharia to get 1.835 acres. These two people, Kamau Macharia and the defendant Kamau Karongo Macharia each to take his relatives who are concerned to them. This case has come to Court because Hosea Kamau Karongo Macharia wishes to neglect his relatives but relatives who appear before us informed us that the two former wives of Karongo Kamau Macharia named Waithira wife of Karongo and Wanjiru wife of Karongo MRG ELCLA E002 OF 2025 3J of 6

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should get 0.611 acres each from the portion he was given to Kamau Karongo Macharia to the Eastern side. Kahuro Tribunal elders agree with the three witnesses…” The award clearly refers to L.R. No. LOC. 8/Thombotho/Ngerere/284. It does not refer to L.R. No. LOC. 8/Thombotho/586. (9)As for the second issue, I find that the decree in case No. LDT/67/2002 can and should be executed against the Appellant for two reasons. Firstly, the judgment and decree are not in rem and not in personam. They are not against the Appellant as a person but against the suit land which she acquired from her sister’s husband Hosea Macharia Kamau. The award of the tribunal stated clearly that he was to share the land with his relatives. These relatives did not include his wife’s sister, the Appellant. They include his two siblings Wakiya Karongo who was an unmarried sister and Muigana son of Karongo. This is as per page 1 of the proceedings before the elders at Kahuro Land Disputes Tribunal. At page 3 of the award, a breakdown of the beneficiaries is given and the size of the land awarded to each one of them. Each of the three beneficiaries was to get 0.61 acres. The land registered in the name of the Appellant is 0.76 Ha. which translates into 1.87796 acres. Just like the award said in the last two lines at page 2 at the bottom both Kamau Macharia and Kamau Karongo Macharia were to get 1.835 acres, which they were to share with their own siblings. This is because their father Karongo Kamau had two wives namely Waithira wife of Karongo and Wanjiru wife of Karongo. Each of the two houses was decreed to get half of L.R. No. 284 and each of the two senior sons was to share the 1.835 acres with his siblings hence the 0.611 acres per sibling. The second reason why the decree should be executed against the Appellant is because of the doctrine of lis pendens. The maxim is as follows. “Pendente lite nihil innovetur” which means “during litigation, nothing should be changed” This doctrine was applied in the case of Baber. A Mawji vs United States International University and Another (1976) KLR 16. Madan J had this to say about the doctrine, “It is…a doctrine common to both Courts of law and equity, and vests, as I apprehend, upon this foundation that it should be plainly impossible that any action or suit could be brought to a successful termination, if MRG ELCLA E002 OF 2025 4J of 6

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alienations, pendente lite were permitted to prevail. The Plaintiff would be liable in every case to be defeated by the Defendant’s alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding. It would be a poor and insufficient system of justice unethical to contemplate if a successful Plaintiff is forced to litigate again and again to restore the status quo either by a fresh suit or by further proceedings if the property in dispute is transferred to a third party” The suit property was transferred to the Appellant on 5-4-2002. By then Kahuro LDT 67 of 2002 was pending having been filed in the year 2001. The transfer of the suit land to the Appellant is caught up by the doctrine of Lis pendens (10) Finally, on whether a claim under customary trusts such as this one can be statute barred under Section 4(4) of the Limitation of Action Act, I find that it cannot be defeated. In the case of Macharia Kihari vs Ngigi Kihari Civil Appeal No. 170 of 1993, it was held as follows by the Court of Appeal. “under customary law the land even after the right of action has accrued, is held in trust even for decades before any step is contemplated for a formal transfer or division. Limitation does not apply in customary law. We reject this ground of appeal” The supreme Court in Isaack M’Inaunga vs Isaaya Theuri M’Lintari and another (2018) eKLR recognized customary trust as an interest subsisting over registered land. The land that the Appellant acquired from the husband was therefore encumbered by a customary trust which she could not avoid or evade. (11) In conclusion and for the above stated reasons, I find no merit in the appeal dated 20-1-2025 which I dismiss with costs to the Respondent. It is so ordered. Dated, Signed and Delivered virtually at Murang’a this 23rd day of September, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistants– Antony Appellant’s Counsel – Absent MRG ELCLA E002 OF 2025 5J of 6

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Respondent’s counsel – Miss Macharia MRG ELCLA E002 OF 2025 6J of 6

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