JUDGMENT OF THE COURT
This is an appeal from the decision of Owuor J (as she then was) dated 25th June, 1998 by which she dismissed an appeal brought by Charles Gichina Mwangi (the appellant) .
Henry Mukora Mwangi (the respondent) filed a suit against the appellant in the Senior Resident Magistrate’s Court at Thika in 1991 seeking a declaration that the appellant held 15 acres which form part of the appellant’s plot Land Parcel Loc 16/KIGORO/197 in trust for him. The appellant and the respondent are brothers. The disputed piece of land was once part of a much larger parcel of land (75 acres) owned by their late father. It would appear that during land consolidation the appellant allocated to himself 45 acres leaving only 30 acres for the respondent. He said he was entitled to a lion’s share of their father’s land because he was the eldest son. In his defence the appellant denied the respondent’s claim and pleaded that the respondent’s claim was res judicata .
The learned Magistrate reje…