Esther Gikiri v Fatuma Ahmed Jama

ii. THAT the trial court erred in law and fact by ignoring the overwhelming evidence on record as to ownership of the suit property. iii. THAT the trial court erred in law and fact by misinterpreting the purport of the Supreme Court decision in Dina Management Limited Vs County Government of Mombasa & 5 Others Petition 8 (E10) OF 2021. iv. THAT the Honourable Court erred in law and fact in failing to distinguish the facts of this case and the facts in Dina Management Limited Vs County Government of Mombasa & 5 Others Petition 8 (E10) OF 2021 since in this case, there is only one title to the suit property, L.R. No.15400/33. v. THAT the court erred in law in ignoring binding precedent from the High Court in ELCC 335/2022: Silas Irungu Karuri Vs Peter Nganga Chege, which shares similar facts as this case and which is the neighbouring plot. Page 2 of 12

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vi. THAT the court erred in law and fact in requiring the Appellant to prove the root of her title even though there is only one title to the suit property. vii. THAT the learned magistrate failed to appreciate the purport of Section 26(1) and 24 (a) of the Land Registration Act. viii. THAT the Learned Magistrate erred in failing to appreciate that the Honourable Court was bound to determine the matter before it fairly and impartially, according to established norms of jurisdiction, procedure and fairness as dictated by Article 50 and ring-fenced by Article 25( c) of the Constitution of Kenya, 2010. ix. THAT the Learned Magistrate, in delivering the subject Judgment and Decree, violated the overriding objective contained in Article 50 and 25 (c) of the Constitution of Kenya, 2010 in that he failed to handle the matter for the purpose of attaining a just determination thereof. x. THAT the Learned Magistrate, in delivering the subject Judgment and Decree, violated the right to property as Page 3 of 12

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contained in Article 40 of the Kenyan Constitution and the due and proper administration of justice. xi. THAT the Honourable Magistrate erred in law in making orders that violated the Land Act, the Constitution and the due and proper administration of Justice. xii. THAT in the circumstances of this case, justice was perverted. 2. Before the trial court, the appellant's primary pleading was an amended plaint dated 28.4.2022. She had prayed for; a) Injunction restraining the respondent from entering, trespassing, constructing or continuing with the construction of any structure, offering for sale, subdividing, selling, disposing dealing, of, alienating, charging, occupying, managing, letting or otherwise using, residing and remaining, or representing any person as the duly registered owner or in any way whatsoever, from interfering with the appellant's property rights over LR No. 15400/533 situated in the city Page 4 of 12

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of Nairobi, hereinafter the suit premises. Measuring 0.0235 hectares or thereabouts. b) Declaration that the appellant is the legitimate and registered owner of the suit premises. c) General damages for conspiracy and fraud. 3. The appellants averred that she became the registered owner of the suit premises having purchased, transferred and registered as the sole owner of the same from Amboseli Court Limited, for valuable consideration, in 2016, whereafter she took possession and occupation of the same. 4. The appellant averred that sometime in March 2022, the respondent trespassed into her land and deposited building materials in preparation for construction, whereafter she made a police report, and the respondent was arrested and detained briefly but was released upon confirming that he was mistaken while depositing the construction materials. 5. The appellant termed the acts of the respondent as trespass orchestrated as part of a cartel who prey on vacant land and starts construction without any color of right; hence prayed Page 5 of 12

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for damages as a consequence of those acts of trespass, loss and damage. 6. The plaint was accompanied by a list of documents, among them, a copy of title deed, offer for sale dated 12.6.2015, sale agreement dated 2.2.2016, transfer form, official receipt, letters dated 27.9.2016, 14.2.2022 and 14.2.2023 respectively. 7. The respondent opposed the suit through a statement of defence dated 6.6.2023, she denied that the appellant was the registered owner of the suit premises the former seller was, the true owner of the same, given that the suit property belonged to Kiambu Dandora Farmers Company Limited under Land No. 11379 /3, from whom she had acquired ownership, from as the genuine and rightful owner, hence the appellants recourse lay elsewhere. 8. The respondent denied all the allegations in the amended plaint. The statement of defence was accompanied by a list of documents containing copies of a Title No. 11379/3, survey report, share certificate, sale agreement, public Page 6 of 12

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notice by National Land Commission, gazette notice dated 10.9.2021 and new subdivisions report. 9. The court record shows that on 17.9.2024 an order to maintain the prevailing status quo was granted pending hearing and determination of the appeal. The mention was issued for 4.2.2025 to confirm the filing of the record of appeal. Learned counsel for the appellant had not complied, so he undertook to file one by close of business that day. 10. A mention date for 19.2.2025 was given to take directions on the hearing of the appeal. As of 19.2.2025, no record of the appeal had been filed. Another mention for 30.4.2025 was given to confirm compliance. The court also called for the lower court file to be availed. 11. As of 30.4.2025, the court was told that a record of appeal had been filed and served. A mention date was given for 14.5.2025 to confirm that the lower court file had been availed. 12. On 10.7.2025, the court was told of the availability of the lower court file, which, as of the writing of this judgment, has not been availed by the deputy registrar. An application Page 7 of 12

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for temporary injunction was then filed by the Appellant. An order to maintain the status quo was then agreed upon by consent, hence compromising the application on 2.10.2025. 13. The record shows that on 21.10.2025, the parties, by consent, stayed this appeal to await the outcome of ELC No. 393 of 2008. A mention for further orders was given for 21.1.2026. When the matter came before this court on 16.2.2026, the appellant told the court that she had filed a record of appeal dated 29.4.2025. Directions were then given for the appeal to be canvassed by way of written submissions to be filed by 15.9.2026. As of the deadline, no written submissions had been filed by the parties. 14. Section 78 of the Civil Procedure Act, as read together with Order 42 of the Civil Procedure Rules, is the law governing hearing on an appeal. In Selle & another Vs Associated Motor Boat Company Limited & others [1968] EA 123 the court said an appellate court has the duty to completely re-evaluate and re-analyse the trial evidence afresh and draw its own independent conclusion on Page 8 of 12

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law and fact while mindful that the trial court had the benefit of seeing and hearing the witnesses first hand. 15. For the court to exercise its mandate, it has to have a complete record of the proceedings that were before the trial court. Typed proceedings and the impugned judgement must be availed as part of the appellants’ record of appeal. 16. Order 42 Rule 13 (4) CPR provides what must be contained in a record of appeal. They include certified typed notes of the record of trial court proceedings, the judgment and the decree of the pleadings all document put in evidence. The memorandum of appeal and record of appeal must be duly served; an incomplete record of appeal may lead to striking out of an appeal. 17. In Bwana Mohammed Bwana Vs Silvano Buko Bonaga & Others [2015] EKLR the Supreme Court of Kenya said that without a record of appeal or one with omitted requisite bundle of documents, the appeal is incompetent and defective, for failing the requirements of the law. Page 9 of 12

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18. The court said that a court cannot exercise its adjudicatory powers conferred by law or the Constitution where an appeal is incompetent, for an incomplete appeal directs a court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues. 19. In Sammy Kemboi Kipken Vs Bowen David Kangongo & others petition No. 23 OF 2018, a record of appeal is said to contain proceedings, documents emanating that were subject of proceedings in the trial court. 20. In Manchester Outfitters vs Standard Chartered Financial Services Limited & Another [2002] KECA 303 (KLR),Civil Appeal No. E011 of 2024, an issue of the illegible Record of appeal was raised. The court said that whereas the right to a fair trial under Article 50 of the Constitution was non- derogable, in normal circumstances, an incomplete record of appeal may infringe and violate one’s right to a fair trial and access to justice. 21. In this matter, the appellant knew that her record of appeal is incomplete as regards the proceedings in which the parties testified and produced exhibits. The court, in the Page 10 of 12

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grounds of appeal, is expected by the appellant to reevaluate the facts, evidence and the law applicable in the matter and find that the trial court misdirected itself as per the 12 grounds in the Memorandum of Appeal dated 31.5.2024. 22. In Doris M. Wanjiru Kinuthia & 2 others Vs Purity Ndirangu [2015] EKLR, Civil Appeal Application No. 94 of 2014, the court said that it is a shared responsibility between an appellant and a respondent to include all relevant documents in the appeal. Striking out an appeal or a suit should only be done in the clearest of cases. The appellant was given ample time to file and serve a record of appeal. She did so late but in an incomplete manner. No explanation is given as to why the appellant left out a critical part of the record of appeal, which goes to the core of her appeal. 23. In the circumstances, the appeal is found incompetent and is hereby dismissed with no order as to costs. Dated , Signed and Delivered on this 7 th day of October at Milimani . Page 11 of 12

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……………………. HON JUSTICE C.K NZILI JUDGE In the presence of ; Miss Kimani for Njenga for Applicant Awandu for Respondent Court assistant ; Julius Legal researcher ; Bevalyn N. Page 12 of 12

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