Nganga v Gatimu

The learned Senior Principal Magistrate1. erred in law and in and infact by failing to interrogate the circumstances surrounding the dispute between the parties herein in respect of the ownership and acquisition of titles of land parcels No. Loc.18/Gachocho/2778, 2779 and 2780 thus coming up with an erroneous judgment; 2. erred in law and fact by misdirecting herself on the fraud perpertrated by the Respondent Karanja Gatimu and his brother John Kimana Gatimu and failed to nd that the subdivision of land parcel No. Loc.18/Gachocho/881 was marred with serious legal anomalies which would have turned the tide against the Respondent; 3. erred in law and fact in barring the appeallant from intering the remains of her husband Mwangi Gatimu in land parcel No. Loc.18/Gachocho/2779 which land he had called home since time immemorial and had actually interred the remains of his child on the same land and the Respondent did not raise objection to the earlier interment; 4. misdirected herself by failing to nd that the title held by the Respondnet in respect of land parcel No. Loc.18/Gachocho/2779 was acquired illegally, unprocedurally and through a corrupt scheme and was thus impeachable; 5. erred in law by issuing eviction orders against the Appellant form the landed property bequeathed to her by her deceased husband and thus the whole judgment is oppressive and lacks legal substratum and should be reversed forthwith. 3. The facts of the case according to the Appellant are as follows. Firstly, she is the widow of the late Mwangi Gatimu who died on 31-10-2023. Prior to the ling of the lower court case, she and her late husband had occupied the suit land for over 40 years. The suit land Loc.18/Gachocho/881 is registered in the name of Gatimu Ng’ang’a who was her husband’s father. Gatimu Ng’ang’a had two wives and three sons. Two, the suit land had never been partitioned ocially. The only partitioning was done physically on the ground through the imposition of a boundary at the centre indicating the position where the two wives of the late Gatimu Ng’ang’a lived. Three, in the year 2011, the late Mwangi Gatimu petitioned the Court for a grant of letters of administration for the late Gatimu Ng’ang’a in order to have the suit land subdivided amongst the beneciaries of the estate. The succession cause is not yet concluded. Four, upon the death of her husband, the family embarked on burial arrangments. The deceased was to be buried at a particular spot that he had pointed out to his family close to the centre boundary demarcating the land at the centre. All the family members are aware that the suit land has never been subdivided between the two wives of the deceased Gatimu Ng’ang’a. 4. The facts of the case according to the Respondent are as follows. One, land parcel No. Loc. 18/ Gachocho/881 belonged to Gatimu Ng’ang’a who is the father to the Respondent and the Appellant’s husband. In his lifetime, Gatimu Ng’ang’a subdivided have the L.R. No. 881 into three parcels for his three (3) sons. The resultant parcels were Loc.18/Gachocho/2778, 2779 and 2780. The Respondent inherited L.R. No. 2779 while the Appellant’s husband inherited L.R. No. 2778. Two, instead of the Appellant’s husband occupying his land exclusively, he also occupaied the Respondent’s land No. 2779. This promoted the Respondent to le Kigumo Land Disputes Tribunal cas NO. 7 of 2007 where he obtanned judgment against the Appellant’s husband. The Appellant’s husband was ordered to vacate L.R. No. 2779 and to occupy his own parcel No. 2778. Before the Appellant’s husband https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5610/eng@2026-09-21 2

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could be evicted, he led Murang’a Civil Suit No. 18 of 2010 which was dismissed on 13-10-2010. He did not relent. He led Kigumo Successon Cause No. 76 of 2011 relating to the estate of Ng’ang’a Gatimu where he misled the Court that the deceased’s estate comprised of Loc. 18/Gachocho/881 which no longer existed. At the time of the ling of the lower court suit, the said Succession Cause was still pending. Three, the orders issued in the tribunal case have never been set aside, reviewed or appealed against. Four, when the Appellant’s husband died, the Appellant planned to bury his remains on the Respondent’s land No. 2779 while he has his own land which is No. 2778. This is what prompted the Respondent to le the lower court suit to stop the burial of the Appellant’s husband on the Respondent’s land. 5. 6. In her judgment dated 7-11-2024, the learned trial magistrate found in favour of the Respondent for the following one reason. The Appellant’s husband failed to accept the land given to him by his own father and refused to present the requisite document to the land registry for registration of Loc.18/ Gachocho/2778, in his name. The learned trial Magistrate issued the following orders. a. A permanent injunction against the Appellant, her agents, servants or any other person from intering the remains of Mwangi Ng’ang’a Gatimu at Loc.18/Gachocho/2779. b. An eviction order against the Appellant from encroaching Loc.18/ Gachocho/2779. c. The Directorate of Criminal Investigtons Kangari and the Ocer Commanding Ngonda Police Station to enforce compliance with the above orders. d. The Respondent is awarded costs of the suit. Counsel for the parties eld written submmissions dated 27-4-2026 and 27-7-2026 respectively. The Appellant’s isue are not clearly framed but a perusal of the submissions brings out the following issues. a. Whether the Appellant is entitled to L.R.Loc.18/Gachocho/881 by the doctorine of adverse possession. b. Whether the Respondent acquired the land parcel No. Loc.18/Gachocho/ 2779 through fraud. On the other hand, the Respondent’s counsel has framed the following issues. 7. i. Whether the Appeal herein is in tandem with the nature of the dispute before the trial court. ii. Whether the trial court erred for not interrogating the alleged dispute on the acquisition and ownership of suit property. iii. Whether this court sitting as an Appellant Court can address a claim for adverse possession that was never before the trial Court. I have carefully considered the record of appeal, the grounds of appeal, the written submissions by both sides, the issues raised therein and the law relied upon by the parties. This being a rst appeal, this court has the duty of reconsidering, re-evaluating and independently assessing the evidence on record and draw its own conclusions bearing in mind that it did not see or hear the witnesses like the trial https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5610/eng@2026-09-21 3

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court did and make due allowance for this. See Selle and another vs. Associate Motor Boat Co. Ltd and Others [1968] EA 123. 8. It seems to me that the Appellant’s Counsel has abandoned his ve(5) grounds of appeal and delved into issues that were not raised in the lower Court suit or in the appeal itself. My determination in this appeal will be centred on the ve grounds raised in the memorandum of appeal and also on the two issues that the Appellant’s counsel has raised. 9. The issue of adverse possession was never raised by the Appellant in her defence dated 26-3-2024 or in her wintess statement dated a day before, that is to stay, 25-3-2024. It was also not raised in the grounds of appeal. It is something that has been raised abruptly in the written submissions. The Appellant cannot be allowed to deviate from her pleadings. She must be bound by them. Order 2 rule 6(1) of the Civil Procedure Rules provides as follows. 6(1) No party may in any pleading make an allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his in the same suit.” By this rule, the Appellant is precluded from raising the doctrine of adverse possession for the rst time in her submissions in an appeal from a case that did not concern adverse possession. 10. As regards, fraud, the Appellant ought to have pleaded it, particularized it and then proved it to the standard set in the case of Ndolo vs.Ndolo, Appeal No. 128 of 1995, where the standard of proof was set at above the ordinary balance of probabilities but below prove beyond reasonable doubt as in criminal cases. Since the Appellant did not le a counterclaim and she did not plead the particulars of fraud as required by Order 2 rule 10(1) (a) of the Civil Procedure Rules, she is again precluded from raising fraud abruptly on appeal as an issue for determination. 11. Coming now to the grounds of appeal, I nd that the learned trial magistrate did not err as is alleged in the rst ground. I nd that she went to the bottom of the dispute and found correctly that the Appellant led documents that contradicted her own defence and proved the case for the Respondent. Such evidence included the letter of consent for subdivision of L.R. No. 881 dated 9-10-1979 proving that it was indeed her husband’s father Gatimu Ng’ang’a who subdivided the original land and distributed it to his sons who included her husband, John Kimana and the Respondent. 12. Looking at the second ground of appeal, no fraud was pleaded or proved and in any case the evidence led by the Appellant herself proved that the subdivision was by the owner of the L.R. No. 881 and not by the Respondent. 13. Regarding the third ground, the learned magistrate was right in barring the Appellant from burying her husband on the Respondents land when he had his own being No. 2778. 14. It is my nding that the title deed acquired by the Respondent was lawfully acquired for the reasons already given in paragraphs [16] and [18] of this judgment. 15. Finally, the Magistrate did not err in ordering the eviction of the Appellant from the Respondent’s land because she has her husband’s land to reside on and has no consent from the Respondent to occupy his land. 16. In conclusion and for the reasons given, I nd no merit at all in the Appellant’s appeal and I dismiss it with costs to the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5610/eng@2026-09-21 4

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It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 21ST SEPTEMBER 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistans – Antony Appellant’s Counsel – Mr T.M. Njoroge Respondent’s Counsel – Miss Karwitha https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5610/eng@2026-09-21 5

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