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Court of AppealDismissedCourt of Appeal Appeal from Embu ELC No. 50 of 2017 (Memorandum of Appeal with 8 grounds)

M'Chege v Kamuti (suing as legal representative of Kamuti Kamuingu) (Civil Appeal 139 of 2018) [2025] KECA 1226 (KLR)

Court of Appeal of Kenya
11 July 2025
4,702 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that a man who broke a written 1961 promise to share family land fraudulently registered himself as sole owner, and must hand over half the parcel.

What this practically means

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Executive summary

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This is a Court of Appeal judgment at Nyeri (S. Ole Kantai, J. Lesiit and A. O. Muchelule, JJ.A) dismissing an appeal against a judgment of Angima, J. of the Environment and Land Court at Embu delivered on 12th July 2018. The dispute concerns a 9-acre parcel, Gaturi/Nembure/2438, allegedly bought jointly by the parties' fathers, later subdivided into parcels 3684 and 3685, with the respondent claiming the suit land (3685) in trust for the Kamuingu family. The litigation, originating in Embu RMCC No. 151 of 1983 and referred to a panel of elders whose award was set aside on appeal because the chairman did not sign it, has lasted some 42 years. The Court agreed with the trial Judge on every ground: the respondent had capacity to sue, the appellant being bound by his admission of the plaint's descriptive paragraphs and holding a limited grant ad litem; the original parcel was jointly purchased, the elders' award retaining probative value despite being set aside on a technicality; the 1961 written undertaking to transfer half the land was proved, having been produced by consent as exhibit P5 and corroborated by PW2; and the appellant fraudulently registered himself as sole owner contrary to that undertaking. The award of costs to the successful respondent under section 27 of the Civil Procedure Act was also affirmed. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in finding that the respondent had legal capacity to file the suit on behalf of Kamuti Kamuingu
  2. 2.Whether the learned Judge erred in finding that the appellant was fraudulently registered as the absolute proprietor of land parcel number Gaturi/Nembure/2438
  3. 3.Whether the Judge erred in finding that the appellant gave a written undertaking in 1961 to surrender half the parcel
  4. 4.Whether the Judge erred in finding that land parcel number Gaturi/Nembure/2438 was jointly bought by Kamuti and M'Chege
  5. 5.Whether the Judge erred in finding that the appellant failed to prove he was given the parcel of land by his father
  6. 6.Whether the Judge erred in ordering costs in favour of the respondent and in failing to analyse the appellant's evidence

Key legal issues

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01

Whether the respondent, holder of a limited grant ad litem, had capacity to sue as legal representative of Kamuti Kamuingu

Holding

The respondent had capacity; the appellant admitted the descriptive contents of the plaint and never challenged capacity in the defence, and the limited grant ad litem sufficed for prosecution of the suit.

Reasoning

The amended plaint described the plaintiff as legal representative of the estate of Kamuti Kamuingu, and the amended defence admitted the descriptive contents of paragraphs 1 and 2. The defence raised capacity nowhere else. A limited grant of letters of administration ad litem issued in Probate and Administration Cause No. 153 of 2013 was on record. The trial Judge found capacity existed on the defendant's own pleading, and this Court agreed, dismissing that ground.

p. 6
02

Whether parcel Gaturi/Nembure/2438 was jointly purchased by Kamuti and M'Chege

Holding

The parcel was jointly purchased; the trial Judge's finding on a balance of probabilities, supported by the elders' award, the coffee planting, the 1978 caution and the 1961 undertaking, was affirmed.

Reasoning

Although the elders' arbitral award was set aside on the technical ground that the chairman had not signed it, it retained probative value as evidence that elders with first-hand knowledge unanimously found joint acquisition, with consideration of cows and goats contributed in equal shares. The trial Judge, who saw and heard the witnesses, was satisfied on a balance of probabilities based on the coffee planting, the elders' intervention, the caution and the panel's findings.

p. 7
03

Whether the appellant gave a written undertaking in 1961 to transfer half the original parcel

Holding

The written undertaking of 25th January 1961 was proved; the document was produced by consent as exhibit P5 and its execution was corroborated by PW2.

Reasoning

Exhibit P5 was admitted by consent of both counsel. Although the appellant disowned the signature, he did not specifically deny the handwriting, did not report forgery to the CID, and was a schooled teacher at the material time. PW2 testified he was present when the appellant signed the agreement at the market place. The subdivision into two parcels and sale of one was consistent with the undertaking having been made.

p. 7
04

Whether the appellant was fraudulently registered as sole proprietor of the suit land

Holding

Having agreed before clan elders and reduced the agreement into a written undertaking to transfer half the land, the appellant fraudulently registered himself as sole owner after subdividing the original parcel.

Reasoning

The appellant subdivided the original parcel as directed by clan elders but retained the whole, contrary to his written undertaking. Registration in his sole name, removal of the caution lodged by the respondent, and charging the respondent's portion to a bank as loan collateral supported the finding of fraudulent registration. The Court held it was wrong and irregular for him to retain the suit land.

p. 9
05

Whether the trial Judge erred in awarding costs to the respondent

Holding

The award of costs was correct; costs follow the event under section 27 of the Civil Procedure Act and there was no good reason to deprive the successful plaintiff of costs.

Reasoning

The trial Judge, exercising discretion under section 27 of the Civil Procedure Act, held that the general rule is that costs follow the event and a successful litigant is entitled to costs unless for good reason the court directs otherwise. The Court of Appeal saw no reason, even on appeal, why the respondent should not be entitled to costs, both of the suit and of the appeal.

p. 9

Legal principles established

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  • A defendant who admits the descriptive contents of a plaint describing the plaintiff as a personal representative of a deceased estate is bound by that admission and cannot later challenge the plaintiff's capacity to sue.
  • The setting aside of an elders' arbitral award on the technical ground that the chairman did not sign it does not destroy its probative value as evidence of the history and ownership of disputed land.
  • Costs follow the event under section 27 of the Civil Procedure Act, and a successful litigant is entitled to costs unless the court, for good reason, directs otherwise.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court of Kenya at Embu
ELC No. 50 of 2017
Jurisdiction invoked
First appellate/second appellate jurisdiction over the Environment and Land Court appeal (no specific constitutional or statutory provision stated in the judgment)

Relief refused

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All eight grounds of appeal, including the complaints on capacity, joint purchase, the 1961 written undertaking, fraudulent registration and costs

The Court agreed with the trial Judge's findings of fact and conclusions on all the main issues; the appellant's complaint on capacity had no basis

p. 9

Costs

Appeal dismissed with costs to the respondent; the Court also endorsed the trial Judge's award of costs of the suit to the respondent as a successful litigant under section 27 of the Civil Procedure Act.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We find no merit in this appeal which we dismiss with costs to the respondent.
p. 9Final orders - dismissal of the appeal with costs
The appellant was bound by what he stated in the defence.
p. 5Parties bound by pleadings - capacity admitted
That did not reduce or alter its probative value that elders had converged to discuss the issue of ownership of a disputed parcel of land
p. 6Probative value of elders' award set aside on a technicality
the general rule is that costs follow the event as provided for under section 27 of the Civil Procedure Act (Cap 21). A successful litigant is thus entitled to costs of the action unless, for good reason, the court directs otherwise.
p. 9Costs follow the event
It follows therefore, and a long discussion on this will not be necessary, that after subdividing the original parcel of land into two portions as directed by clan elders the appellant fraudulently registered himself as the owner of the suit land.
p. 9Fraudulent registration contrary to written undertaking

Issues in the judgment

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minor

The judgment contains two consecutive numbered paragraphs both marked '33' (the second being the quoted trial judgment paragraphs 32-33 and the Court's response), creating a numbering irregularity.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "M'Chege v Kamuti (suing as legal representative of Kamuti Kamuingu) (Civil Appeal 139 of 2018) [2025] KECA 1226 (KLR)", Case Analysis (2025). Court of Appeal Appeal from Embu ELC No. 50 of 2017 (Memorandum of Appeal with 8 grounds). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1226/eng@2025-07-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.