Godfrey Kiruja Leonard v Teresia Igoki Leonard (Suing as the Legal Representative of the estate of Leonard M'Rithaa, Deceased) & Lucy Gatakaa t/a Licenced Surveyor (Interested Party)

rendered on 20/5/2025 in Chuka CMC E & L Case No 33 of 2020. The key issue that arose for determination in the said suit was whether there was an inadvertent mistake in the registration of Godfrey Kiruja M’Rithaa [the appellant] as the proprietor of land parcel number Mwimbi/Murugi/2230 instead of Mwimbi/Murugi/2225. The trial court made a finding in the affirmative and decreed rectification of the two relevant land registers. Taking into account the grounds advanced in this first appeal, the above issue is, invariably, one of the key issues that fall for determination in the appeal. Before I analyse and dispose the issues that fall for determination, I will outline the background to the appeal; the grounds of appeal; and the parties’ respective submissions in the appeal. 2. All the parcels of land featuring in this Judgment bear common particulars relating to their section and block numbers. The section and block numbers are Mwimbi and Murugi, respectively. For convenience, the court will make reference to the parcels without capturing their section and block details. For instance, parcel number Mwimbi/Murugi/2230 will be identified simply as parcel number 2230. Background 3. The late Leonard M’Rithaa Nathan [hereinafter referred to as “the late Nathan”] was registered as proprietor of land parcel number Mwimbi/Murugi/756 on 20/1/1966. The land measured 1.62 hectares [approximately 4 acres]. He was issued with a certificate of title on 12/1/1972. CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 2

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During his lifetime, the late Nathan married two wives, Teresia Igoki Leonard [the respondent] and Rose Mumu. Besides the children Nathan got with his two wives, he got a son, Godfrey Kiruja M’Rithaa also known as Godfrey Kiruja Leonard [the appellant] with a lady who eventually got married elsewhere and is now deceased. At the time of initiation of the suit giving rise to this appeal in 2020, Godfrey [the appellant] was a grandfather with adult and married children. 4. In 1999, the late Nathan subdivided his land, parcel number 756, into six parcels, namely, parcel numbers 2225 – 2230. He gave and settled members of his family on the subdivisions. He, however, retained the titles relating to the subdivisions in his name. He gave and settled the appellant on parcel number 2225, measuring 0.310 hectares, but retained the title in his name. He retained parcel number 2230 as the matrimonial home of his first wife, Teresa Igoki [the respondent]. Together with his first wife, they established their matrimonial home and other matrimonial developments on parcel number 2230. 5. Having been given parcel number 2225, the appellant developed the land. His developments on the said parcel include a stone/permanent residential house where he resides with his family. The appellant’s married children, too, established their residences on parcel number 2225 and reside there. 6. In 2019, the late Nathan approached the interested party with a view to concluding his desire to fully vest land in the CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 3

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names of appellant by effecting a formal transfer. According to the respondent, Nathan intended to transfer to the appellant parcel number 2225 which was the land that the appellant had settled on. The respondent contended that Nathan inadvertently gave out the title relating to her [the respondent’s] matrimonial home, that is, parcel number 2230, instead of parcel number 2225. Parcel number 2230 was eventually transferred into the name of the appellant on 19/8/2019. Nathan subsequently died the same year, on 20/11/2019, and was buried on parcel number 2230. Parcel number 2230 measures 0.534 hectares [approximately 1.318 acres]. It is a much bigger parcel than parcel number 2225 which measures 0.310 hectares [0.7657 acres]. Soon after the death of Nathan, the appellant started laying claim to parcel number 2230, which the respondent contended was her matrimonial home. 7. The respondent contended that the transfer of parcel number 2230 into the name of the appellant was an inadvertent mistake, adding that the mistake was discovered soon after the transfer, when Nathan was still alive, and the appellant at that time acknowledged that there was an inadvertent error. She further contended that plans were underway to rectify the mistake by the time Nathan died. The appellant contested the allegation and asserted that parcel number 2230 was properly and intentionally transferred to him by Nathan in 2019. 8. Aggrieved, the estate of Nathan, through the respondent, took out a grant and initiated Chuka CMC E & L Case No E033 of 2020, seeking an order decreeing the cancellation CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 4

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of the above registration and rectification of the two registers to reflect the appellant as the proprietor of parcel number 2225 and the late Nathan as the proprietor of parcel number 2230. 9. The case of the respondent was that, she was the personal representative of the late Nathan and one of his two widows. She was personally privy to the instructions which were given to the surveyor regarding the subdivision and the intended conveyance of parcel number 2225 to the appellant. The intention of the late Nathan was to convey parcel number 2225 into the name of the appellant because that is the land that he had given to the appellant and that is where the appellant had established his family home and all his family developments, including the residences of his adult and married children. 10. The respondent contended that the intention of her late husband (the late Nathan) was to retain parcel number 2230 in his name as their matrimonial home. She averred that the conveyance of parcel number 2230 into the name of the appellant was an inadvertent mistake. She blamed the interested party for the mistake. 11. The appellant and the interested party filed a statement of defence and counterclaim dated 13/7/2020. They subsequently filed an amended statement of defence and counterclaim dated 30/7/2020. They contested the respondent’s claim. Their case was that the interested party was not involved in the subdivision of parcel number 756. CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 5

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12. The interested party averred that she was only involved in the conveyance of parcel number 2230 into the name of the appellant in 2019, adding that, the late Nathan approached her with a title that was already in his name and requested him to assist him convey the title to the appellant. 13. On his part, the appellant contended that it was the clear intention of the late Nathan to give him parcel number 2230, adding that he was ready to relocate from parcel number 2225 to parcel number 2230 because that was the intention of the late Nathan. 14. By way of counterclaim, the appellant prayed for: (i) an order decreeing eviction of the respondent from parcel number 2230 and her settlement on 2225; (ii) as an alternative relief, an order decreeing the subdivision of the two parcels into two equal portions and the sharing of the same between him and the appellant. He also prayed for costs of the suit. 15. Upon receiving evidence and submissions, the trial court reached the following findings: (i) there was a mistake in the registration of parcel number 2230 in the name of the appellant; (ii) the respondent, as the wife of the late Nathan, had a superior claim to parcel number 2230 under the Matrimonial Property Act and had an overriding interest in the land under Section 28(b) of the Land Registration Act; and (iii) the appellant’s claim was statute-barred under the Limitation of Actions Act and his title had been extinguished under the doctrine of adverse possession. CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 6

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16. Consequently, the trial court issued orders decreeing rectification of the relevant registers to reflect the appellant as the proprietor of parcel number 2225 and the late Nathan as the proprietor of parcel number 2230. The trial court dismissed the appellant’s counterclaim. Lastly, the trial court condemned the appellant to bear the respondent’s costs, moderated at 50%. Appeal 17. Aggrieved by the Judgment and Decree of the trial court, the appellant brought this appeal through a memorandum of appeal dated 4/6/2025. The memorandum of appeal was amended on 24/10/2025. The appellant advanced the following four (4) grounds of appeal: 1) The Honourable Court erred in law and fact in holding that the respondent had acquired proprietary rights vide adverse possession and that the said claim was time-barred. 2) The Honourable Court erred in law and fact in dismissing the appellant’s counterclaim. 3) The Honourable Court erred in law and fact in relying and making findings on unpleaded issues. 4) The Honourable Court erred in law and fact in restricting the deceased’s rights to freely deal with his properties during his lifetime and thus made inequitable findings affecting a single member of the family. CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 7

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18. The appellant prayed for an order setting aside the Judgment of the trial court and substituting it with: (i) an order allowing the appellant’s counterclaim; (ii) an order dismissing the respondent’s suit; and (iii) an order allowing the appeal with costs and awarding the appellant costs of the suit in the trial court. Appellants’ Submissions 19. The appeal was canvassed through written submissions dated 21/4/2026, filed by M/s Waklaw Advocates. Counsel for the appellant identified the following as the four issues that fell for determination in the appeal: (i) Whether the trial court had the jurisdiction to determine a question on adverse possession; (ii) Whether the court was justified in dismissing the appellant’s counterclaim; (iii) Whether the trial court made a finding on unpleaded issues and; (iv) Whether the court restricted the free dealings with a proprietary interest (sic). 20. On whether the trial court had the jurisdiction to determine an issue on adverse possession, counsel for the appellant submitted that the trial court purported to determine a claim of adverse possession yet it had no jurisdiction to do so. Counsel relied on Section 38 (1) of the Limitation Actions Act and the pronouncement by the Court of Appeal in Sugawara vs Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own capacity) & 3 CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 8

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others [2024] KECA 1417(KLR), Appeal No. E141 of 2022. 21. On whether the trial court limited a proprietor’s free dealing in property and wrongly dismissed the counterclaim and relied on unpleaded issues, counsel argued that the late Nathan subdivided his property into six portions in 1999 and gifted his family members who were to relocate to various parcels. Counsel contended that Article 40 of the Constitution offered protection to own property, which entailed the right to deal with the property as one wished. Counsel added that the appellant was the registered proprietor of parcel number 2230. 22. Counsel further submitted that parcel number 2230 was transferred to the appellant by his late father during his lifetime. Counsel added that the transfer was lawful and followed due process. Counsel argued that the appellant’s registration as the owner of parcel number 2230 was not by mistake. Counsel relied on the case of Wreck Motor Enterprises v Commissioner of Lands & 3 Others (1997) KECA 391 (KLR) and Nyangw’ra vs Njuguna & Another (ELC 609 (B) of 2012. 23. On whether the trial court relied on issues that had not been pleaded, counsel submitted that parties were bound by their own pleadings, adding that matrimonial interest and long occupation were never pleaded, hence the trial court erred in arriving at its findings. Counsel asked the court to allow the appeal. CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 9

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Respondent’s Submissions 24. The respondent filed written submissions dated 3/3/2026 through the firm of I C Mugo & Co Advocates. Counsel for the respondent identified the following as the issues that fell for determination in the appeal: (i) Whether the appeal was incompetent due to omission to include in the record of appeal the decree extracted from the Judgement of the trial court; (ii) Whether the trial court pronounced itself on the doctrine of adverse possession; (iii) Whether the trial court held that under Section 7 of the Limitation of Actions Act the respondent could not claim from the appellant Mwimbi/Murugi/2225 and on the other hand the appellant could not claim from the respondent parcel No. Mwimbi/Murugi/2230; (iv) Whether the trial court erred in law and fact by dismissing the appellant's counterclaim; (v) Whether the trial court rendered itself on unpleaded issues; (vi) Whether the trial court, in any manner whatsoever, restricted the deceased [the late Nathan] from Leonard M’Rithaa freely dealing with his property and as a consequence the appellant was affected; and (vii) Who should pay costs of the appeal. 25. On whether the appeal was incompetent for failure to include the decree in the record of appeal, counsel submitted that the omission to include the decree was contrary to Section 66 of the Civil Procedure Act [sic]. Counsel relied on the case of Chege v Suleiman (1988) eKLR and Lucas Otieno Masaye v Lucia Olewe Kidi Civil Appeal No.27 of 2020 eKLR. CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 10

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26. On whether the trial court pronounced itself on the doctrine of adverse possession in the judgement, counsel submitted that the trial court did not determine the issue of adverse possession, adding that the issue was neither canvassed nor determined. Counsel argued that the trial court was guided by the Court of Appeal decision in the case of Sugawara v Kiruti (Sued in the capacity as the administratrix of the estate Mutaragwa of Mutarakwa Kiruti Lepaso Kiruti alias Lepaso alias Mutaragwa Kiroti Leposo Civil Appeal No. E141 of 2022 (2024) eKLR. 27. On whether the trial court held that under Section 7 of the Limitation of Actions Act the respondent could not claim parcel number 2225 from the appellant and the appellant could not claim parcel number 2230 from the respondent, counsel submitted that the answers to the questions were in the negative. Counsel added that Section 7 barred a claimant against filing suit for recovery of land after the expiry of 12 years. 28. On whether the trial court erred in dismissing the appellant’s counterclaim, counsel for the submitted that the trial court properly respondent rejected the counterclaim. Pointing out that the registers relating to the six subdivisions were opened on 24/6/1999 and parties were residing on their respective parcels, counsel submitted that the counterclaim was statute-barred under Section 7 of the Limitation of Actions Act. 29. On whether the trial court erred by dismissing the appellant’s counterclaim, counsel submitted that parcel number 756 was subdivided on 24/6/1999, adding that the CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 11

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respondent had been in occupation of parcel number 2230 for over 21 years. Counsel contended that Section 7 of the Limitation of Actions Act obligated the appellant to evict the respondent from parcel number 2230 within 12 years, hence the appellant’s counterclaim was barred by the Limitation of Actions Act. Counsel relied on the Court of Appeal decision in Civil Application No. Nai 22 of 1981 (1982) eKLR, (sic). 30. On whether the trial court determined issues that had not been pleaded, counsel submitted that the appellant had not identified any unpleaded issue that the trial court determined. Counsel argued that the trial court determined issues that had been pleaded. 31. On whether the trial court restricted the deceased against freely dealing with his property and, as a consequence, the appellant was affected, counsel submitted that the answer to the question was in the negative. Counsel argued that the late Nathan subdivided his land and settled his two wives and children on their respective subdivisions, adding that registration of the appellant as proprietor of parcel number 2230 was a mistake because that was the portion which the late Nathan had given to himself, the respondent and the two grandchildren of the respondent. 32. On costs, counsel cited Section 27 of the Civil Procedure Act and urged the court to dismiss the appeal and condemn the appellant to bear costs of the appeal. Analysis and Determination CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 12

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33. The court has 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. The appellant itemized four grounds of appeal in his amended memorandum subsequent of appeal written dated 24/10/2025. submissions dated In his 21/4/2026, he identified four issues. Taking the above into account, the following are the issues that fall for determination in the appeal: (i) Whether the 1st respondent proved that there was an inadvertent mistake in the registration of the appellant as proprietor of land parcel number Mwimbi/Murugi/2230 instead of Mwimbi/Murugi/2225; (ii) Whether the appellant proved his counterclaim; (iii) Whether the trial court improperly rendered itself on the issue of adverse possession; (iv) Whether the trial court improperly rendered itself on unpleaded issues; and (v) What order should be made with regard to costs of the appeal. Before I analyse and dispose the issues, I will outline the principle that governs this court when exercising appellate jurisdiction. 34. 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 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 CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 13

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of the evidence and arrive at our own independent conclusions.” 35. 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: “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- analyze the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reason either way.” 36. Issue number (i) and issue number (ii) are intertwined. Consequently, I will analyse and dispose the two issues contemporaneously. Did the 1st respondent prove that the registration of the appellant as proprietor of parcel number 2230 instead of parcel number 2225 was an inadvertent mistake? Did the appellant prove his counterclaim in which he sought the eviction of the respondent from parcel number 2230? 37. From the pleadings and the evidence on record, the 1st respondent is the widow of the late Nathan who died on 20/11/2019. The appellant is a son to the late Nathan, born by a lady whom Nathan did not marry. The appellant is, therefore, a step-son to the 1st respondent. The interested party is a surveyor whose services the late Nathan sought when he wanted to convey one of the parcels that were registered in his name to the appellant. CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 14

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38. There was common ground that the late Nathan owned parcel number 756 measuring 1.62 hectares. In 1999, the late Nathan subdivided parcel number 756 into six parcels, namely, parcel numbers 2225 – 2230. There was also common ground that upon effecting the subdivision in 1999, the late Nathan gave and settled his two wives and children on the six parcels but retained the titles in his name. He gave and settled the appellant on parcel number 2225 measuring approximately 0.3100 hectares [0.7657 acres]. 39. In his evidence, the appellant confirmed that he established his permanent residence on parcel number 2225. It also emerged from the evidence on record that the appellant’s adult and married children have residences on parcel number 2225. established their There was common ground that the late Nathan retained parcel number 2230 as his matrimonial home with the respondent. He established his matrimonial home with his other wife on a different parcel. At all material times, the respondent resided and had her developments on parcel number 2230. She resided on parcel number 2230 with her children and grandchildren. What was in contest was whether the 2019 registration of parcel number 2230 in the name of the appellant was an inadvertent mistake 40. The respondent initiated the suit that gave rise to this appeal in her capacity as the duly appointed personal representative of the late Nathan. She contended, on behalf of the late Nathan, that there was an inadvertent mistake in the registration of parcel number 2230 in the name of the appellant, adding that the deceased intended to register CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 15

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parcel number 2225 in the name of the appellant and that parcel number 2230 had been given to her as their matrimonial home and was not available for transfer to the appellant. On his part, the appellant contended that it was the intention of the late Nathan to transfer parcel number 2230 into his name (the appellant’s name) and to relocate the 1st respondent to parcel number 2225. 41. The evidence on record show that, for a long time, the late Nathan settled specific members of his family on specific parcels out of the six subdivisions. He allowed them to develop their specific parcels. The appellant established his permanent home on parcel number 2225 while the respondent together with the late Nathan established their matrimonial home on parcel number 2230. This uncontested evidence alone made parcel number 2230 unavailable for transfer to the appellant except with the consent of the 1st respondent who had an overriding matrimonial interest in the land. 42. Secondly, the 1st respondent testified that she lived with the late Nathan and was privy to the decision to vest parcel number 2225 in the name of the appellant. She testified that release of the title relating to parcel number 2230 to the interested party for the purpose of the transfer was an inadvertent error on part of the deceased, adding that when the deceased discovered the error, he embarked on a remedial process but died the same year before completing the rectification process. Upon the demise of the deceased, the appellant declined to undertake a rectification. CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 16

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43. The testimony of the 1st respondent was corroborated by Elphas Ndwiga, a brother to the late Nathan. The facts relating to lengthy settlement and development of permanent residences and other developments, similarly, supported the case of the 1st respondent. 44. Nothing was tendered in form of evidence to demonstrate that it was the intention of the late Nathan to uproot members of his family from their respective permanent residences and settle them on difference parcels. If that was his intention, the court would expect to be given evidence relating to financial provisions, which the late Nathan made for the purpose of establishing new permanent residences and relocating the affected family members. None was tendered before the trial court. 45. Consequently, taking into account the totality of the evidence that was before the trial court, I come to the finding that the respondent properly proved that there was an inadvertent mistake in the registration of the appellant as proprietor of parcel number 2230. The intention of the late Nathan was to transfer parcel number 2225 to the appellant. Parcel number 2230 was transferred to the appellant as an inadvertent mistake. It follows from the evidence and from the above finding that the appellant did not prove his counterclaim seeking an eviction order against the respondent. 46. Did the trial court improperly render itself on the issue of adverse possession? The appellant faulted the trial court for rendering itself on the issue of adverse possession and contended that the court lacked jurisdiction to determine the CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 17

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issue. First, the common law doctrine of adverse possession has been enacted as part of Kenya’s statute law. 47. Secondly, under the prevailing jurisprudence, Magistrate Courts do not have jurisdiction to entertain claims of adverse possession capacity (See as Mutarakwa Sugawara the Kiruti v Kiruti (Sued her Estate of administratrix of Lepaso Mutaragwa alias the in Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others [2024] KECA 1417 (KLR). What is not clear is whether in a claim for recovery of land a defence of limitation of action under Sections 7 and 17 of the Limitation of Actions Act, per se, ousts the jurisdiction of a magistrate court. 48. I have looked at the pleadings that were before the trial court. None of the parties pleaded the defence of limitation under Sections 7 and 17 of the Limitation of Actions Act. The issue relating to limitation of actions under Section 7 of the Limitation of Actions Act was introduced through submissions by M/s I C Mugo Advocate. The proper procedure would have been for the trial court to abstain from rendering itself on the unpleaded issue and abstain from making a determination on the question of adverse possession. Rendering itself on the issue was an error. 49. Notwithstanding the above error on part of the trial court, I do not think the above misdirection on part of the trial court had any bearing on the parties’ respective evidence which has been analysed by this court in exercise the mandate of a first appellate court. As a first appellate court, I have CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 18

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independently re-evaluated the pleadings and the evidence on record and I am satisfied that the error did not have any impact on the findings on the key issues in the matter. 50. Did the trial court improperly render itself on unpleaded issues? The appellant contended that the trial court introduced and rendered itself on the issue of matrimonial interest. I have looked at the pleadings, the evidence and the submissions that were tendered before the trial court. The question/issue about parcel number 2230 being the 1st respondent’s matrimonial home was properly pleaded in paragraph 10 of the plaint and paragraph 24 of the 1st respondent’s reply to defence and defence to counterclaim. For avoidance of doubt, the 1st respondent pleaded as follows in the two respective paragraphs:“10. That by the time the late LEONARD M’RITHAA subdivided his land parcel L.R MWIMBI/MURUGI/756 only the plaintiff, the 1st defendant, Johnson Frankline Murangiri Mwenda grandchildren plaintiff and the late Leonard of and the M’Rithaa were living on the said land. 24. That if the 1st defendant is ready and willing to move from MWIMBI/MURUGI/2225 to MWIMBI/MURUGI/2230 the defendant in the counterclaim is not ready to move out of MWIMBI/MURUGI/2230 where: (i) Her homestead is situated. (ii) Her coffee is situated. CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 19

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(iii) Has buried her late husband LEONARD M’RITHAA. (iv) Has buried her daughter and grandson. (v) Has two of his grandson living and occupying. (vi) That is was the wish of the late Leonard M’Rithaa to be buried. (vii) That this is where her daughters have constructed her house that they live whenever they visit the defendant in the counterclaim”. 51. It is therefore incorrect to assert that the trial court improperly rendered itself on the issue of matrimonial home. The issue was raised in the pleadings. The trial court properly rendered itself on the issue. 52. Before I dispose the appeal, I will address a peripheral issue which was raised by the respondent, relating to the completeness of the record of appeal. Counsel for the respondent urged this court to dismiss this appeal on the ground that the decree extracted from the impugned judgment was not included in the record of appeal. Unlike the Supreme Court and the Court of Appeal, this Court exercises appellate jurisdiction on the basis of both the original record of the trial court and the record extracted from the original record of the trial court. The extracted record, together with the memorandum of appeal, constitute the record of appeal. Given the fact that this court is seized of both records and the original typed and signed judgment CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 20

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of the trial court is before the court, I do not think noninclusion of the decree, which is an extract of the judgment, would be a proper basis for dismissing an appeal that has been fully argued and falls for determination on merits 53. Having re-evaluated the pleadings and the evidence that were before the trial court, the court comes to the conclusion that this appeal lacks merit and is for dismissal. 54. On costs, the parties who participated in the appeal are close relatives. The dispute in the appeal arose as a result of what was established through evidence to be an inadvertent mistake by the family patriarch, the late Nathan. In the circumstances, parties will bear their respective costs of the appeal. 55. In the end, for the above reasons, this appeal is rejected and dismissed for lack of merit. Parties shall bear their respective costs of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF SEPTEMBER, 2026 B M EBOSO [MR] ELC JUDGE CHUKA - ELCL APPEAL NO. E005 OF 2025 – JUDGMENT Page 21

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