John M'Marete Muketha & Daniel Gikundi M'Marete v Samwel Mwiti Muketha

for himself and also in trust for Samuel Mwiti Muketha [the respondent]. The trial court made a finding in the affirmative and awarded the respondent 0.68 hectares out of the suit land. The key issue that falls for determination in the appeal is whether the trial court erred in awarding the respondent 0.68 hectares out of the suit land. Before I analyse and dispose the issues that fall for determination in the appeal, I will briefly outline the background to the appeal; the grounds of appeal; and the parties’ submissions in the appeal. Background 2. Samuel Mwiti Muketha (the respondent) is a brother to John M’Marete Muketha (the 1st appellant). The duo are sons of the late M’Muketha M’Ithiri [hereinafter referred to as “the late M’Ithiri]. Daniel Gikundi M’Marete (the 2nd appellant) is a son to the 1st appellant. 3. The suit land belonged to the late M’Ithiri. During land adjudication and consolidation, the late M’Ithiri caused the suit land to be registered in the name of the 1st appellant. The late M’Ithiri, nonetheless, continued to reside on the suit land with his family, including his adult children. He subsequently died and was buried on the suit land. 4. On 28/4/2021, the respondent initiated Meru CMC E & L Case No 57 of 2021 against his brother (the 1st appellant), praying for: (i) a declaration that the 1st appellant held a portion of the suit land measuring 0.68 hectares in trust for him [the respondent]; (ii) an order removing/lifting the caution registered on the suit land; (iii) an order decreeing transfer of the portion measuring 0.68 hectares of the suit ELCL APPEAL NO. E042 OF 2025 – JUDGMENT Page 2

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land to the respondent and authorizing the Executive Officer of the Court to execute the requisite conveyance documents; and (iv) an order decreeing the appellants to bear costs of the suit. 5. The case of the respondent’s was that, he and the 1st appellant were brothers. The 2nd appellant was the 1st appellant’s son. The suit property originally belonged to the two siblings’ late father, M’Muketha M’Ithiri, who during land adjudication caused it to be registered in the 1st appellant’s name, to hold it in trust for the two of them. The two of them had occupied and developed their respective portions of the suit land for a long period pursuant to a mutual family arrangement, without any dispute or interference. The respondent maintained that the 1st appellant had at all material times acknowledged the trust and had even commenced the process of subdividing the suit property to give effect to it, but the subdivision process was not completed. He further asserted that he had been in continuous, open and uninterrupted occupation of a distinct portion measuring 0.68 hectares. 6. The respondent alleged that the appellants subsequently acted in breach of the trust by refusing to transfer the 0.68 acre portion to him and by causing a caution to be registered against the suit land. He contended that despite repeated requests for the removal of the encumbrance and transfer of his portion to him, the appellants failed or refused to comply, thereby prompting him to initiate the suit. 7. The appellant contested the suit through a defence dated 5/5/2021, in which they averred that the suit land was ELCL APPEAL NO. E042 OF 2025 – JUDGMENT Page 3

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transferred to the 1st appellant by the late M’Ithiri as a gift during his lifetime. They termed the respondent’s case as frivolous, vexatious and an afterthought. They faulted the respondent for trying to transfer the suit land to himself while the 1st appellant was serving a life sentence in prison. 8. Upon conducting trial and receiving submissions , the trial court rendered the impugned Judgment in which it made a finding to the effect that the respondent had proved his case on a balance of probabilities/preponderance. The trial court granted the appellant the key reliefs that were sought in the plaint and decreed that parties were to bear their respective costs of the suit. Appeal 9. Aggrieved by the judgment of the trial court, the appellants brought this appeal advancing the following three verbatim grounds of appeal: 1) The Learned Trial Magistrate erred both in law and fact by misapprehending the applicable laws and principles thereby arriving at a decision that is unfair and untenable. 2) That in the totality at the evidence and the principles applicable the decision is lopsided, unfair and if left to stand will occasion undue injustices and hardship to the appellants. 3) The Judgment/decision is not informed by the evidence on record; it appears to be influenced by extraneous factors. ELCL APPEAL NO. E042 OF 2025 – JUDGMENT Page 4

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10. The appellants prayed for an order setting aside the Judgment of the trial court and decreeing that the suit land be shared equally. Submissions 11. The appeal was canvassed through written submissions dated 13/2/2026, filed through M/s Mokua Obiria & Associates Advocates. Counsel rehashed the above three grounds of appeal and submitted that the trial court fell into error both on law and fact. Counsel submitted that the trial court having found, as a proven fact, that the suit land was ancestral land and that the 1st appellant held the land in trust, it ought to have decreed equal sharing of the suit land by the two siblings. Counsel observed that the suit land, Nyaki/Mulathankari/65, measured 0.96 hectares (2.372 acres), adding that by awarding the respondent 0.68 hectares, the trial court made an error. 12. Counsel for the appellant urged this court to set aside the Judgment of the trial court and decree that the suit land be shared equally by the two siblings. Counsel urged the court to allow the appeal 13. The respondent did not file submissions in the appeal. Analysis and Determination 14. The court has read and considered the entire record of the trial court; the record filed in this appeal; the grounds of appeal; and the submissions tendered in the appeal. As observed, the respondent did not tender submissions in this appeal. Effectively, the appeal is unopposed. Secondly, whereas the appellants listed three grounds of appeal in their ELCL APPEAL NO. E042 OF 2025 – JUDGMENT Page 5

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memorandum of appeal dated 26/6/2025, they did not contest the factual finding of the trial court on the issue of existence of a trust. They only faulted the trial court on the aspect of sharing out the suit land, which they said measured 0.96 hectares. It was their case that the trial court having found that the 1st appellant held the suit land for himself and also in trust for the respondent, it should have decreed the sharing of the 0.96 hectares in equal portions between the two siblings. 15. Taking the above into account, the only issue that falls for determination in this appeal is whether the trial court erred in awarding the respondent 0.68 hectares instead of awarding him half of the suit land. Before I analyse and dispose the issue, I will outline the principle that guides this court when exercising appellate jurisdiction. 16. 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 weigh, interrogate analyze, and evaluate, scrutinize all assess, of the evidence and arrive at our own independent conclusions.” 17. 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: ELCL APPEAL NO. E042 OF 2025 – JUDGMENT Page 6

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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 extracts the on and record and re-analyze then the determine whether the conclusions reached by the learned trial judge are to stand or not and give reason either way.” 18. Did the trial court err in awarding the respondent 0.68 hectares out of the suit land? There was common ground, and evidence was tendered demonstrating, that the suit land measured 0.96 hectares. The respondent did not, however, tender any evidence justifying entitlement to 0.68 hectares out of the 0.96 hectares. The respondent and the 1st appellant were siblings. In the absence of evidence justifying the entitlement to 0.68 hectares, the proper award would be to decree that the suit land be shared equally between the two siblings. To the extent that the trial court awarded the respondent an unjustifiable 0.68 hectares out of the 0.96 hectares that the 1st appellant held in trust, this court agrees with the appellant that the trial court erred. The trial court ought to have awarded the respondent half of the suit land. Disposal Orders 19. Having re-evaluated the pleadings and the evidence that were presented to the trial court; and having considered the grounds of appeal, the submissions tendered and the entire record of the trial court, the court’s finding is that this appeal partially succeeds and is disposed in the following terms:(a) The finding of the trial court in Meru CMC E & L Case No E057 of 2021 on the issue of existence ELCL APPEAL NO. E042 OF 2025 – JUDGMENT Page 7

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of a trust in the registration of John M’Marete Muketha as proprietor of land parcel number Nyaki/Mulathankari/65 is upheld. (b) Disposal order numbers (a), (b) and (d) in the trial Court’s Judgment dated 275/2025 are upheld. (c) Disposal order number (c) in the trial court’s Judgment is set aside and is hereby replaced with an order decreeing that land parcel number Nyaki/Mulathankari/65 be subdivided and shared equally between Samuel Mwiti Muketha (the respondent) and John M’Marete Muketha (1st appellant). (d) Parties shall bear their respective costs of this appeal. 20. Lastly, for avoidance of doubt, the platform for executing this appellate Judgment shall be the trial court file. DATED, SIGNED AND DELIVERED AT MERU THIS 29TH DAY OF SEPTEMBER, 2026. B M EBOSO [MR] ELC JUDGE In the Presence of: Daniel Gikundi Marete – 2nd Appellant - Present 1st appellant – Absent ELCL APPEAL NO. E042 OF 2025 – JUDGMENT Page 8

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Respondent – Absent E. Tupet – Court Assistant ELCL APPEAL NO. E042 OF 2025 – JUDGMENT Page 9

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