Mary Wanja Chege v Lucy Wambui Kinyua & James Kamau

Nyagatubu Ndua, a member of Nyakinyua Investments Limited holding share certificate number 2953 and ballot number 3266. 5. According to the amended plaint, the sale contemplated that the vendor would secure the removal of the person occupying the property before the purchaser paid the outstanding balance of Kshs.22,000. Attempts to obtain vacant possession through local administrative offices and an earlier suit had not achieved that objective. The 1st Respondent pleaded that the vendor subsequently transferred her share to her on 11 May 2018, enabling the company to process a title deed and allowing her to pursue possession in her own name. 6. The principal relief sought was the eviction of the person then sued as the 1st Defendant, together with his servants, agents and persons working under him, from the suit property. The 1st Respondent also sought police supervision of the eviction and costs. 7. In their joint amended defence, the Appellant and the 2nd Respondent disputed the 1st Respondent’s ownership. They asserted that the Appellant had successfully balloted for the property as a member of Nyakinyua Investments Limited and had acquired it in 1989. They contended that any purported sale by another person could not convey her interest and asked that the 1st Respondent’s title be nullified and the suit dismissed. 8. The defence described the 2nd Respondent as a person occupying the property with the Appellant’s authority. It denied knowledge of the earlier proceedings mentioned in the amended plaint and admitted the trial court’s jurisdiction. The suit proceeded to hearing, at which the 1st Respondent called four witnesses and the defence called two. 9. The record includes pleadings, witness statements, documents, the trial proceedings and the impugned judgment. The appeal was addressed through the Appellant’s submissions dated 15 December 2025 and the 1st Respondent’s submissions dated 15 January 2026. I consider the parties’ arguments against the evidence actually presented before the trial court. Parties’ Cases The Appellant’s Case 10. The ten grounds of appeal challenge the trial court’s evaluation of the evidence, its acceptance of the 1st Respondent’s account of acquisition, its treatment of the company’s documents and its application of section 26 of the Land Registration Act. The Appellant specifically questions the execution of the sale agreement by the vendor’s husband without production of a special power of attorney, the evidence establishing the vendor’s ownership, and the explanation given by the company’s advocate concerning an error in the company stamp. 11. The Appellant also complains that the trial court failed to give proper weight to her evidence and that of the 2nd Respondent, disregarded the terms of the sale agreement, relied on extraneous evidence and granted eviction without proof of the 1st Respondent’s case on a balance of probabilities. Page 2 of 12

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12. At trial, the Appellant maintained that she was a shareholder in Nyakinyua Investments Limited and had been allocated both a larger agricultural holding and the disputed plot. She said that the 2nd Respondent, her husband’s brother, had occupied the plot with her permission. She explained that the company had required her to surrender her ownership documents for verification and had subsequently withheld them despite her attempts to recover them. 13. Her amended list of documents included a surveyor’s letter concerning allocation, a letter to the District Land Tribunal, a notification of surrender of share certificates and ballots, a dividend notice, a payment document and a letter dated 25 October 2011 said to confirm her ownership. Her amended witness statement similarly attributed the failure to obtain her documents to the company. 14. The 2nd Respondent, who testified as Peter Kamau Kabera, said that he had lived on the property since 1989 with the Appellant’s permission. He testified that he understood her to be its owner. Although he disputed aspects of the description of his employment, he maintained that his presence on the property was authorized by the Appellant. 15. In her appellate submissions, the Appellant reiterated her membership of the company and her allocation of ballot number 3266. She also referred to Title No. Ruiru/Ruiru East/455, which she expressly described as undisputed. She argued that the suit below was sub judice because of Thika Civil Case No. 670 of 2011, and suggested that the 2nd Respondent’s lengthy occupation could have supported adverse possession. She further contended that, as neither she nor the 2nd Respondent had contracted with the 1st Respondent, they were wrongly sued. The 1st Respondent’s Case 16. The 1st Respondent relied on her registered title and the history of the property’s allocation and acquisition. She testified that her sister, Regina Wangui Kahiga, purchased the property on her behalf while she was in Qatar. The vendor’s interest was subsequently transferred to her through the company, and a title deed was issued in her name on 10 May 2019. 17. Regina testified that she had investigated the property with Nyakinyua Investments Limited and had seen the documents held in the vendor’s name. She confirmed that she purchased on the 1st Respondent’s behalf and that the vendor’s husband, James Ndua, signed the agreement and received the purchase money. 18. Teresia Waithira Ndua, also identified in the record as Nyagatubu Ndua, testified as the vendor. She explained the different forms of her name appearing in her identification and the company’s records. She confirmed her membership of the company, her sale of the plot and her presence when the agreement was executed. Her evidence was that her husband acted with her consent. She also explained that she had been unable to pursue the earlier suit because of illness and financial difficulties, and that she subsequently transferred her interest to enable the purchaser to pursue possession. 19. Kimani Githongo, an advocate and the company’s legal adviser and custodian of its membership register, gave evidence concerning the allocation and subsequent transfer of Page 3 of 12

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the property. His adopted statement identified share certificate number 2953 and ballot number 3266 as having been held by Nyagatubu Ndua until their transfer to the 1st Respondent on 11 May 2018. He also produced the company-related documents in the supplementary bundle. 20. The witness disputed the authority of Isaac Nderitu Mishek and Hannah Muthoni to transact for the company. He relied on correspondence concerning a disputed return to the Registrar of Companies, the withdrawal of the resulting list of directors and rulings in the litigation over the company’s management. In cross-examination, he also explained the difference between the company’s name and the spelling appearing on a stamp used on a clearance letter. 21. In submissions, the 1st Respondent maintained that her documents established the chain of ownership, whereas the Appellant’s documents did not establish a lawful allocation of the disputed plot. She relied on section 26 of the Land Registration Act and opposed the introduction of sub judice and adverse possession at the appellate submissions stage. She cited Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR on the binding effect of pleadings and sought dismissal of the appeal with costs. Issues for Determination 22. Having considered the memorandum of appeal, the record and the submissions, I identify the following issues for determination: i) Whether the questions of sub judice and adverse possession are properly before this Court on appeal. ii) Whether the trial court erred in upholding the 1st Respondent’s ownership of Ruiru/Mugutha Block 1/3266 over the Appellant’s competing claim. iii) Whether the 1st Respondent established entitlement to the eviction orders granted by the trial court. iv) Who should bear the costs of the appeal. Applicable Legal Principles 23. This is a first appeal. Under the principles stated in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123, this Court must reconsider and evaluate the evidence and reach its own conclusions, while allowing for the fact that it neither saw nor heard the witnesses. The exercise entails an independent assessment of the record, rather than a mere endorsement of the trial court’s conclusions. 24. The Court of Appeal reiterated that approach in Kenya Ports Authority v African Line Transport Co. Ltd [2014] eKLR. A finding may warrant interference where it rests on no evidence, arises from a misapprehension of the evidence or reflects the application of wrong principles. In this appeal, the Court must therefore examine both the reasons given below and the evidential basis for the ultimate decision. Page 4 of 12

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25. Order 42 rule 4 of the Civil Procedure Rules requires leave before an appellant may urge a ground of objection not set out in the memorandum of appeal. It also recognizes the appellate court’s power to consider other grounds, subject to affording the party affected a sufficient opportunity to contest them. The restriction is thus qualified, but it safeguards fair notice and the proper scope of appellate adjudication. 26. In Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & others Ex-Parte Tom Mbaluto [2018] eKLR, the Court of Appeal explained that submissions must address issues properly before the court and cannot be used to change the nature of a party’s case. In Openda v Ahn [1983] KLR 165 and Kenya Hotels Limited v Oriental Commercial Bank Limited [2018] eKLR, the Court recognized discretion to admit a new point, while emphasizing the need for an adequate factual foundation and consistency with the case conducted at trial. 27. The controlling consideration is whether the proposed point can fairly be determined on the existing record without converting the appeal into a trial of a different case. A pure question of law may stand differently from an issue requiring new factual inquiry. As reiterated in Mwinyi v Bhai & another [2025] KECA 1309 (KLR), a fundamental jurisdictional question also requires particular consideration. These exceptions do not dispense with the need to establish the factual basis of the objection advanced. 28. Sections 107, 108 and 109 of the Evidence Act govern the burden of proof. A party seeking judgment on asserted facts must establish those facts. The 1st Respondent, as Plaintiff below, bore the legal burden of proving her entitlement to the property and to possession. The Appellant likewise bore the evidential burden of supporting the affirmative facts on which she based her competing claim. The weakness of the defence could not, by itself, establish the Plaintiff’s case. 29. Sections 24 and 25 of the Land Registration Act provide for the rights flowing from registration. Section 26(1) makes the certificate of title prima facie evidence of proprietorship, subject to challenge for fraud or misrepresentation involving the proprietor, or where the certificate was acquired illegally, unprocedurally or through a corrupt scheme. Proof of the proprietor’s personal involvement in fraud is not a requirement under the separate ground in section 26(1)(b). 30. In Munyu Maina v Hiram Gathiha Maina [2013] eKLR, the Court of Appeal held that a registered proprietor whose root of title is challenged must go beyond the title instrument and explain the legality of its acquisition. The Supreme Court reinforced the importance of examining the process underlying a title in Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR). A title must therefore be assessed alongside the evidence of its origin. 31. Where fraud is alleged, it must be distinctly pleaded and strictly proved. Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR confirms that suspicion or an inference unsupported by adequate evidence is insufficient. That principle does not exclude an independently established challenge based on illegality or procedural impropriety under section 26(1)(b). Page 5 of 12

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32. Section 3(3) of the Law of Contract Act prescribes requirements for a suit founded upon a contract disposing of an interest in land. Section 3(6) includes within the meaning of a party an agent duly authorized in writing to act in the principal’s absence. Oral evidence of consent should not be treated as automatically dispensing with statutory execution requirements. Equally, a claim to recover possession founded on a subsequently registered title must be examined on its pleaded basis and the evidence supporting the completed acquisition. VI. Analysis and Determination 33. Guided by Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123, I have reconsidered the pleadings, testimony and documentary evidence and drawn my own conclusions. In doing so, I have borne in mind that the trial court had the advantage of seeing and hearing the witnesses. That advantage does not relieve this Court of its obligation to examine whether the findings appealed against were supported by the record and whether the correct legal principles were applied. i) Whether sub judice and adverse possession are properly before the Court 34. The Appellant raises sub judice and adverse possession in her appellate submissions. Neither is expressly identified as a ground in the memorandum of appeal. The grounds filed principally challenge the evaluation of the competing ownership claims, the validity of the 1st Respondent’s acquisition and the resulting eviction orders. 35. Under Order 42 Rule 4 of the Civil Procedure Rules, a ground omitted from the memorandum of appeal cannot ordinarily be urged without leave. Nevertheless, the Court retains discretion to consider another ground after ensuring that the affected party has a sufficient opportunity to contest it. As explained in Openda v Ahn [1983] KLR 165 and Kenya Hotels Limited v Oriental Commercial Bank Limited [2018] eKLR, the relevant inquiry includes whether the point can fairly be determined on the existing evidence and whether its admission would alter the case conducted at trial. 36. The existence of earlier proceedings was mentioned in the amended plaint and addressed in the evidence. Accordingly, the factual reference to Thika Civil Case No. 670 of 2011 is not entirely new. However, mentioning an earlier suit does not, by itself, establish the statutory elements of sub judice. 37. Section 6 of the Civil Procedure Act requires proof that the earlier suit remains pending, that the matters directly and substantially in issue coincide, and that the parties are the same or claim through the same persons under the same title. The earlier court must also be competent to grant the relief claimed. Those requirements must be established from the relevant proceedings; they cannot be assumed merely because the two suits concern the same parcel. 38. The evidence before the trial court did not conclusively establish the procedural status of the earlier suit. The vendor described her inability to continue pursuing it, while the 1st Respondent’s evidence suggested that an earlier case had concluded. Abandoning pursuit of a suit does not necessarily establish its formal termination. Equally, an assertion in Page 6 of 12

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submissions that a suit remains pending does not prove that fact. The earlier pleadings and sufficient evidence of its status were necessary to resolve the objection. 39. The joint amended defence did not develop a sub judice objection, and the trial judgment did not determine one. The proposed ground would therefore require this Court to make factual findings insufficiently established in the proceedings below. Applying Order 42 rule 4 and the principles in Openda and Kenya Hotels, I decline to admit it as a fresh ground for overturning the judgment. This finding does not determine the merits or present status of Thika Civil Case No. 670 of 2011. 40. As regards adverse possession, the Appellant’s supporting affidavit to her application dated 7 December 2022 referred to occupation since 1989 exceeding twelve years. It would consequently be inaccurate to say that adverse possession was first mentioned in the appellate submissions. The material distinction is between that reference and a substantive claim properly framed and tried. 41. The amended defence asserted ownership through the Appellant’s membership, allocation and balloting in Nyakinyua Investments Limited. It did not frame a substantive claim that another proprietor’s title had been extinguished by adverse possession. The trial court did not adjudicate such a claim, and the memorandum of appeal identifies no error in its determination. 42. The Appellant’s further suggestion that the 2nd Respondent could have acquired the property by adverse possession against her also departs from their trial case. The 2nd Respondent testified that he occupied the property with her permission and recognized her ownership. The Court cannot substitute a hypothetical adverse claim for the permissive occupation that he actually asserted. 43. Determining adverse possession would require examination of the character of possession, the interest against which time allegedly ran and the relevant period. Duration alone would not resolve those questions. Applying Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & others Ex-Parte Tom Mbaluto [2018] eKLR, submissions cannot convert the appeal into a determination of a different proprietary claim. I therefore decline to entertain adverse possession as a new substantive claim in this appeal, without determining its merits. ii) Whether the 1st Respondent proved ownership of the suit property 44. Under sections 107 and 108 of the Evidence Act, the 1st Respondent bore the legal burden of proving her ownership and entitlement to possession. That burden did not disappear because the Appellant’s documents were challenged. The 1st Respondent’s case must succeed on the strength of her own evidence. Under section 109, the Appellant also had to substantiate the particular facts supporting her asserted allocation. 45. The 1st Respondent produced a title deed issued on 10 May 2019. Section 26(1) of the Land Registration Act gives that document prima facie evidential force. However, the Appellant challenged the allocation to the vendor and the subsequent acquisition. The inquiry could therefore not end with production of the title. Page 7 of 12

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46. Applying Munyu Maina v Hiram Gathiha Maina [2013] eKLR, I have examined the evidence underlying the registration. The question is whether the 1st Respondent established a lawful connection between the company’s allocation, the vendor’s interest and her subsequent acquisition. The principle in Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) similarly requires scrutiny of the acquisition process; registration cannot itself remedy an unlawful root. 47. Both parties traced their claims to Nyakinyua Investments Limited. The decisive evidential question was therefore which claim was sufficiently connected to ballot number 3266 and the particular parcel in dispute. General membership of the company could support the background to a claim, but it could not establish allocation of this parcel without the necessary link. 48. The Appellant’s dividend material and notification of surrender of documents provided some support for her relationship with the company. Their limitation was that they did not adequately establish the disputed allocation. In cross-examination, she acknowledged that the allocation letter did not bear her name and was unsigned, and that another letter relied upon did not identify her by name. The differing certificate numbers appearing in her documents were also not satisfactorily reconciled with her claim to ballot number 3266. 49. I have considered her explanation that the company required surrender of her ownership documents and subsequently withheld them. Those events are not necessarily inconsistent. Nevertheless, the explanation did not remove the need for credible evidence identifying the interest represented by the surrendered documents. On the record, it did not sufficiently answer the company’s evidence that the disputed ballot belonged to another allottee. 50. Title No. Ruiru/Ruiru East/455, referred to in the Appellant’s submissions, concerns a different parcel which she expressly described as undisputed. It may support her account of having acquired land through the company, but it does not establish allocation of Ruiru/Mugutha Block 1/3266. I therefore attach limited weight to it in resolving this dispute. 51. The purported confirmation of ownership dated 25 October 2011 must also be assessed against the challenge to its signatories’ authority. Kimani Githongo relied on registry correspondence and the litigation concerning the company’s management to question that authority. Withdrawal of a list of directors does not automatically invalidate every document associated with the persons named in it. Nevertheless, the disputed authority diminished the reliability of the confirmation, particularly when considered alongside the deficiencies in the Appellant’s other allocation documents. 52. I do not regard the witness’s statement concerning the absence of a male chairperson as decisive. The validity of a company document depends on authority and authenticity, rather than the signatory’s gender. My conclusion rests on the documentary deficiencies, the evidence concerning disputed authority and the company’s records identifying another allottee. 53. The 2nd Respondent’s evidence established occupation with the Appellant’s permission. It did not independently establish the company’s allocation to her. His understanding of her Page 8 of 12

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ownership could explain why he entered and remained on the property, but it could not supply the missing evidence connecting her to the disputed ballot. 54. Conversely, the 1st Respondent presented evidence addressing both the original allocation and the subsequent acquisition. Kimani Githongo, as custodian of the company’s membership register, identified share certificate number 2953 and ballot number 3266 as belonging to Nyagatubu Ndua before their transfer to the 1st Respondent on 11 May 2018. His evidence was supported by the company-related documents produced at trial. 55. The vendor herself testified, explained the different forms of her name and confirmed her interest in the plot. Regina Wangui Kahiga explained the purchase on the 1st Respondent’s behalf, while the 1st Respondent confirmed that arrangement. The plot ownership certificate and receipts relating to transfer and title processing further supported the company’s recognition of the acquisition. Taken together, this evidence went beyond the title deed and established the connection required by Munyu Maina v Hiram Gathiha. 56. The complaint concerning execution of the sale agreement by the vendor’s husband requires careful treatment. Marriage alone did not authorize him to dispose of her interest. Further, the vendor’s oral confirmation of consent cannot automatically replace written authority where the Law of Contract Act requires it. I therefore do not uphold the acquisition merely because the vendor approved her husband’s participation. 57. However, the claim before the trial court sought possession on the basis of a subsequently registered title. It did not seek enforcement of the 2005 agreement against a vendor who repudiated it. The relevant inquiry extends to the later acquisition. The evidence was that the vendor subsequently transferred her interest through the company, and the company’s records recognised that transfer. There was no evidence that her husband executed that later disposition in her place. 58. The absence of a produced special power of attorney accordingly raised a legitimate question concerning the earlier agreement, but did not, on its own, prove that the later registration was illegal or unprocedural. Nor does this conclusion treat registration as curing a defective agreement. It rests on the evidence of the vendor’s subsequent participation and the company’s recognition of the transfer. 59. The complete formal transfer instruments would have strengthened the 1st Respondent’s proof. Their absence must nevertheless be assessed against the evidence actually adduced, rather than treated as automatically decisive. The vendor’s testimony, the company register, the plot ownership certificate, the processing receipts and the title collectively established the pleaded acquisition on a balance of probabilities. This finding is based on that cumulative evidence. 60. The outstanding Kshs.22,000 and the agreement’s provision concerning vacant possession were disclosed in the amended plaint and explained by the vendor. She testified that she subsequently transferred her interest to enable the purchaser to pursue possession. That subsequent conduct was relevant to whether she recognized the purchaser’s acquisition. It did not establish that the balance had been paid, and this Court makes no determination of any outstanding contractual obligation between them. Page 9 of 12

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61. The Appellant and the 2nd Respondent did not establish that the outstanding balance conferred a proprietary or possessory right upon either of them. The contractual provision therefore did not, on the evidence presented, defeat the 1st Respondent’s claim to possession. 62. The spelling discrepancy in the company stamp also called for scrutiny. The advocate acknowledged the absence of a company resolution supporting his explanation for its continued use. I do not treat his explanation as conclusive proof of authenticity. However, the discrepancy must be considered alongside the separate evidence of the vendor’s allocation and the subsequent transfer. It did not sufficiently displace that corroborated history. 63. Applying Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR, suspicion arising from documentary irregularities is insufficient to establish fraud. At the same time, section 26(1)(b) permits impeachment for illegal or unprocedural acquisition without proof of the proprietor’s personal participation in fraud. I have therefore considered both possibilities. The evidence did not establish either fraud involving the 1st Respondent or an illegal, unprocedural or corrupt acquisition sufficient to impeach her title. 64. The complaint concerning extraneous evidence likewise does not justify reversal. The vendor and the company’s advocate testified, adopted their statements and were crossexamined. The company documents were tendered through the advocate. Their evidence formed part of the trial record. The Court must assess its weight, but disagreement with that weight does not make it extraneous. 65. There is, however, a material factual error in the trial court’s reasoning. Paragraphs 13 and 15 of its judgment describe the Appellant as having purchased the property from the 2nd Respondent. That was not her case. She asserted direct allocation by the company, while he asserted occupation with her permission. 66. Under Kenya Ports Authority v African Line Transport Co. Ltd [2014] eKLR, a finding founded on a misapprehension of the evidence warrants interference. I therefore reject that particular finding. The remaining question is whether, after correcting it and independently evaluating the actual defence, the ultimate decision remains supported. 67. My assessment of the Appellant’s direct-allocation claim shows that it was not sufficiently established. Separately, the 1st Respondent proved a coherent connection between the original allottee, the company’s records and her registered ownership. The trial court’s erroneous account of a purchase from the 2nd Respondent therefore does not require reversal of its ultimate finding. I uphold the finding of ownership on the independent evidential basis set out above. iii)Whether the eviction orders were justified 68. Sections 24 and 25 of the Land Registration Act recognize the registered proprietor’s rights, subject to the interests and limitations recognized by law. Having established her ownership and successfully answered the challenge to its root, the 1st Respondent was Page 10 of 12

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entitled to seek possession unless the occupants established a right capable of defeating that entitlement. 69. The absence of a contract between the 1st Respondent and the occupants did not prevent her from suing them. Her claim concerned recovery of land occupied under a competing assertion of ownership. It was therefore unnecessary to establish contractual privity with either the Appellant or the 2nd Respondent. 70. The 2nd Respondent relied on permission from the Appellant. Since her competing ownership claim was not established, that permission did not confer a right enforceable against the 1st Respondent. No separate entitlement defeating her claim was established within the issues pleaded and tried. The eviction order consequently followed from the ownership and entitlement to possession proved. 71. The operative order was directed against the person sued as the 1st Defendant, now the 2nd Respondent, together with his servants, agents and persons working under him. I find no sufficient basis to interfere with that order or the accompanying direction for police supervision. Their affirmation does not enlarge the persons bound by them or dispense with the legal requirements governing execution. iv)Costs 72. The successful party ordinarily receives costs unless the circumstances justify a different order. The 1st Respondent successfully defended her ownership and the judgment. I find no sufficient reason to depart from the ordinary rule. The 1st Respondent shall therefore have the costs of the appeal, and the trial court’s costs order remains undisturbed. Determination and Disposition 73. On an independent reconsideration of the evidence, the Appellant has not established a basis for setting aside the trial court’s ultimate decision. The evidence supports the finding that the 1st Respondent proved ownership and entitlement to possession of the suit property. 74. Accordingly, I make the following orders: i) The appeal is dismissed. ii) The judgment and consequential orders of Hon. Joseph Were, Chief Magistrate, delivered on 23 August 2024 in Ruiru ELC Case No. 164 of 2019 are upheld. iii) The Appellant shall bear the costs of the appeal payable to the 1st Respondent. 75. It is so ordered. DATED, SIGNED AND DELIVERED IN GARISSA THIS 8TH DAY OF OCTOBER 2026. Page 11 of 12

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DR. OMONDI R. OWINO, FCIArb ENVIRONMENT AND LAND COURT JUDGE DELIVERED VIRTUALLY ON THE TEAMS PLATFORM IN THE PRESENCE OF: Mr. Mohammed Dabar (Court Assistant) Page 12 of 12

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