https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3174

Ntiyione v Ntiyione & 2 others (Environment and Land Case E107 of 2025) [2026] KEELC 3174 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3174 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Case E107 of 2025 MD Mwangi, J May 21, 2026 Between Charity Mpano Ene Ntiyione Plaintiff and Amos Rempeine Ntiyione 1st Defendant Ahmed Mohammed Gurey 2nd Defendant The Land Registrar Kisamis 3rd Defendant Ruling Backgrond and Introduction 1.The Plaintiff, Charity Mpano Ene Ntiyioine instituted this suit by way of the plaint dated 5th June 2024. She asserts that she is the registered proprietor of the parcel of Land known as Kajiado/Loodariak/909 comprised of 104 hectares which she holds on, on a life interest on behalf of her 5 children listed under paragraph 4 of the plaint; including the 1st Defendant who is her biological son. 2.The Plaintiff avers that she learnt about an illegal agreement entered into by the 1st and 2nd Defendants in November 2022 wherein the 1st Defendant purported to sell to the 2nd Defendant, six (6) acres of land which was supposedly to be hived off the parcel of land Kajiado/Loodariak/909. The Plaintiff’s case is that the purported agreement is illegal since she as the holder of the title of the parcel of Land known as Kajiado/Loodariak/909 (hereinafter referred to as ‘the suit property’) was not a party to the agreement; neither were the other beneficiaries involved in the purported transaction for the sale of six (6) acres. She asserts that the 1st Defendant lacked the capacity to sell any portion of the suit property. 3.It is further alleged that the 2nd Defendant having realized that the transaction he had entered into was unlawful filed a suit for recovery of his monies in Ngong Chief Magistrates Court being Ngong CMELC E030 of 2024 against the 1st Defendant. The two parties allegedly entered into a consent in favour of the 2nd Defendant, authorizing the hiving off of 6 acres from the suit property to be transferred to the 2nd Defendant notwithstanding the fact that neither the Plaintiff herein nor the other beneficiaries were party to the suit before the Ngong Chief Magistrate’s court. 4.According to the Plaintiff the 1st and 2nd Defendants herein with the collusion of the 3rd Defendant fraudulently went ahead to subdivide the suit property hiving out or creating a new parcel of land known as Kajiado/Loodariak/40557 measuring 114.54 hectares. The Plaintiff particularizes the fraudulent acts at paragraph 13 of the plaint. 5.Consequently, the Plaintiff prays for various orders, namely;a.A declaration that the parcel of land Kajiado/Loodariak/909 and 40557 are held by the Plaintiff on a life interest and therefore not available for alienation or sale.b.A permanent injunction restraining the Defendants, their servants or agents from in any manner disposing, alienating, selling, trespassing or in any other manner dealing with the properties described as Kajiado/Loodariak/909 and 40557.c.General damages for trespass.d.Costs.e.Interests. 6.Alongside the plaint, the Plaintiff filed the Notice of Motion dated 18th August 2025 wherein she prays for an order of interim injunction restraining the Defendants, their servants and or agents from in any manner alienating, disposing, subdividing, transferring or in any manner dealing with the parcels described as L.R No Kajiado/Loodariak/909 and 40557 pending the hearing and determination of this suit. She further prays that this court calls for the file and record in Ngong CMELC E030 of 2024 with a view to meeting the ends of justice. She does not specify what this court is to do with the file and record in Ngong CMELC E030 of 2024. 7.The motion is premised on the grounds on the face of it and on the supporting affidavit of the Plaintiff/Applicant deposed in 18th August 2025 reiterating the assertions in the plaint. She too has attached as annexures the two impugned titles, the agreement for sale between the 1st and 2nd Defendants, the plaint in Ngong CMELC E030 of 2024, the settlement agreement and the resulting decree, as well as the order of the court dated 24th April 2025. This order of 24th April 2025, directs the hiving off six (6) acres from L.R No. Kajiado/Loodariak/40557 to be registered in the name of Amina Mohammed Hassan, the wife of and nominee of Ahmed Mohammed Gurey. It further goes on to authorize the Executive Officer of the court to sign all necessary documents to effect the excision and transfer of the six (6) acres. Response by the Defendants. 8.The 2nd Defendant/Respondent responded to the Plaintiff’s application by way of a lengthy notice of preliminary objection dated 5th September 2025 and a replying affidavit by Ahmed Mohammed Gurey sworn on 9th February 2026. 9.On his part the 1st Defendant filed a replying affidavit dated 14th May 2026. 10.The 1st Respondent refers to himself as one of the `remaindermen` to the subject property known as L.R Kajiado/Loodariak/40557 that emanated from the former parcel of land identified as Kajiado/Loodariak/909. He avers that the subject properties are still registered against a life interest in favour of the Plaintiff/Applicant as the life tenant. 11.The 1st Defendant admits entering into an agreement with the 2nd Defendant/Respondent on 1st November for sale of land but he later learnt that he could not fulfill his obligations under the said agreement since the subject land had a life interest which barred it from being disposed of without following due procedure. He did not therefore technically and legally own it. He therefore agreed with the 2nd Defendant that he would compensate him to a such total of Kshs 2,326,128/= which sum was the purchase price paid to him and the incidental costs arising therefrom. They indeed signed a deed of settlement dated 4th June 2024 which has been exhibited as an attachment to the affidavit. 12.In spite of the deed of settlement signed between the 1st and 2nd Defendants herein, the 2nd Defendant’s filed a case against the 1st Defendant in Ngong being Ngong MCELC E030 of 2024 wherein they ended up signing a consent dated 12 June 2024 resulting in the decree dated 22nd July 2024. 13.The 1st Respondent deposes that he failed to honour the consent judgement and the resulting decree and then a Notice to Show cause was consequently issued against him and according to the 1st Defendant/Respondent, the court at Ngong made an edict directing the Land Registrar and the County Surveyor Kisamis Land Registry to hive off a portion of land measuring 6 acres out of L.R No. Kajiado/Loodariak/909 in favour of the 2nd Defendant/Respondent. 14.The 1st Respondent avers that after he was served with the aforesaid orders, he shared the same with his family members including the Plaintiff herein, who were not parties to the proceedings in the Ngong Law Court, but they insisted that they were not parties to the Ngong case. The Plaintiff/Applicant particularly told him to shoulder the burden on his own. 15.The 1st Defendant/Respondent entreats this court to adjudicate on this matter with finality and fairness. 16.The 2nd Respondent too, as already indicated, filed a replying affidavit sworn on 9th February 2026. The 2nd Defendant/Respondent deposes that the High Court at Nairobi in Succession Cause No. 1916 of 1993, in the Estate of Ntiyione Ole Nena bequeathed L.R No. Kajiado/Loodariak/909 measuring 104 hectares to the Plaintiff/Applicant with her children who were all to inherit in equal shares. He has attached the certificate of confirmed grant dated 22nd September 2014 which granted a life interest to the Plaintiff and thereafter to her children Christopher Tima Ntiyione, Paul Kaduna Ntiyione, Amos Rimpeine Ntiyione, Faith Kunena Ntiyione and Furaha Sitionte Ntiyione, in equal shares. 17.The 2nd Defendant claims that the 1st Defendant approached him after the grant was confirmed with an intention to sell him 6 acres out of his share of more than 20 hectares in L.R No. Kajiado/Loodariak/909. That is how they ended up entering into the agreement of 1st November 2022. He paid on purchase price of Kshs. 1,850,000/=. He alleges that the Plaintiff/Applicant was well aware and informed and approved the sale of 6 acres from the suit property to him. 18.However, in spite of paying the agreed purchase price to the 1st Defendant, a dispute ensued after the 1st Defendant’s failure to transfer the 6 acres from his share of the suit property. In a bid to find an amicable solution, a meeting was held in the Kisamis Chief’s office which meeting included the Plaintiff/Applicant and the parties’ lawyers. A settlement agreement dated 18th February 2023 was signed by the Plaintiff, and the 1st and 2nd Defendants after they mutually agreed in good faith that upon subdivision of the suit property, the 1st Defendant/Respondent would transfer the 6 acres to the 2nd Defendant. The 6 acres, according to the 2nd Defendant was to touch the tarmac road. 19.Subsequently, a survey exercise was carried out allegedly with the knowledge and approval of the Plaintiff who resides near the suit property. The 1st Defendant/Respondent facilitated the survey and placement of beacons for the 6 acres portion excised out of the suit property and touching the tarmac road. The 2nd Defendant affirms that he was even granted possession of the 6 acres portion and he commenced putting up a permanent fence around the portion of 6 acres. 20.It is the 2nd Defendant’s case that despite the settlement agreement and the subsequent developments, the 1st Defendant failed to transfer the 6 acres from his share. That is what forced him to institute the suit at the Ngong Law Courts against the 1st Defendant/Respondent (Ngong MCELC E030 of 2024) seeking to give effect to the settlement agreement. The parties entered into a consent dated 12th June 2024 compromising the suit in effect entering judgement in favour of the 2nd Defendant against the 1st Defendant for the sum of Kshs. 2,326,128/=. In default, the 2nd Defendant was given the liberty to execute the judgement against the 1st Defendant by hiving off a portion of land measuring 6 acres out of L.R No. Kajiado/Loodariak/909. 21.Subsequently, upon default by the 1st Defendant, the court in Ngong eventually issued the order dated 7th November 2024 ordering the hiving off a portion of 6 acres out of the suit property and registration of the same in the name of the 2nd Defendant. Court’s directions. 22.The court’s directions were that the Plaintiff’s application dated 8th August 2025 be heard contemporaneously with the preliminary objection by the 2nd Defendant. The Plaintiff, the 1st and 2nd Defendants complied with the directions by filing their respective submissions which this court has had occasion to read and consider in writing this ruling. Issues for determination. 23.Having agonized over this matter for a long time and further having considered the pleadings herein, the responses by the Defendants including the preliminary objection by the 2nd Defendant, the court picks out a single overarching issue from the preliminary objection by the 2nd Defendant that commends itself for determination, i.e. whether this court has the jurisdiction to entertain the suit as presented by the Plaintiff. Analysis and determination. 24.The subject matter of this suit is the parcel of land known as Kajiado/Loodariak/909 also known as Kajiado/Loodariak/40557 comprising 104.01 hectares which formed part of the estate of Ntiyione Ole Nena (deceased). The High Court sitting in Nairobi in Succession Cause no. 1916 of 1993 confirmed the grant of representation issued to Jackson Mulunkei Ntiyione and Joseph Ntiyie Ntiyione on 22nd September 2024 pursuant to the provisions of section 71 of the Law of Succession Act directing that the estate, with particular reference to the suit property Kajiado/Loodariak/909 be distributed as follows;Charity Mpano Ene Ntiyione to hold a life interest and thereafter to her children. Christopher Tima Ntiyione, Paul Kudana Ntiyione, Amos Rempeine Ntiyione, Faith Kunina Ntiyione and Furaha Siyonte Ntiyione. in equal shares, absolutely. 25.The above mode of distribution created a continuing trust by way of a life interest. By virtue of the provisions of Section 84 of the Law of Succession Act, the personal representatives, Jackson Mulunkei Ntiyione and Joseph Ntiyie Ntiyione, remain the trustees thereof since no other trustee was appointed by the court. 26.Section 82 (d) (i) and (ii) is explicit that no appropriation shall be made so as to affect adversely any specific legacy or for the benefit of a person absolutely and beneficially entitled in possession without the consent nor for the purpose of a continuing trust without the consent of either the trustees thereof (not being the personal representatives themselves) or the person for the time being entitled to the income thereof, unless the person whose consent is so required is a minor or of unsound mind, in which case consent on his behalf by his parent or guardian (if any) or by the manager of his estate (if any) or by the court shall be required. 27.The subordinate court sitting in Ngong in MCELC E030 of 2024 adopted a consent and subsequently issued orders allowing the hiving of 6 acres out of L.R. No. Kajiado/Loodariak/909 in favour of Ahmed Mohammed Gurey, the 2nd Defendant herein, without the consent of all the persons beneficially entitled to the land in equal shares in accordance with the certificate of confirmation of grant issued by the High Court in Nairobi in succession cause No. 1916 of 1993 and contrary to the provisions of the section 82 of the Law of Succession Act. That is essentially the complaint by the Plaintiff. 28.The Plaintiff however, has approached this court by way of a fresh suit seeking, as I have already stated in my summary of the pleadings, amongst other orders, a declaration that she holds the suit property on a life interest. The High Court already declared so in the certificate of confirmation of grant. 29.From my above analysis of the various provisions of the Law of Succession Act, the property is held in the form of a continuing trust. It cannot be the subject of attachment or appropriation except in the manner provided for in the law. 30.Whereas the Plaintiff has a valid concern, she has approached this court in the wrong way thereby denying it jurisdiction to entertain this new matter. This is not something that can be remedied by the provisions of Article 159 of the Constitution or the overriding objective principle of sections 1A and 1B of the Civil Procedure Act. 31.There is a noticeable trend whereby parties adopt procedures unknown in law and whenever confronted with objections invoke the provisions of Article 159 of the Constitution and sections 1A and 1B of the Civil Procedure Act and 3A of the Civil Procedure Act urging the court to uphold substance over form or technicalities and procedures. 32.Kiage J.A addressing that growing trend had this to say in the case of Nicholas Kiptoo Arap Korir Salat -vs- IEBC & 6 others [2013] eKLR:“… I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice........Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned…” 33.In Mumo Matemu -vs- Trusted Society of Human rights alliance and 5 others, Civil appeal No 290 of 2012, the Court of Appeal once more stated that;“In our view it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to article 159 of the constitution and the overriding objective principle of Section 1A and 1B of the Civil Procedure Act Cap 21 and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a hand maiden of just determination of cases.” 34.Elsewhere it has been put as follows;“Article 159 (2)(d) of the constitution is not a panacea, a general whitewash that cures and mends all ills, misdeeds and defaults of litigation.’ 35.The upshot is that the court lacks the jurisdiction to entertain the Plaintiff’s suit as presented. It is hereby by struck out with cost to the 2nd Defendant/Objector.Ordered accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF MAY, 2026.M.D. MWANGIJUDGEIn the virtual presence of:Mr. Muriithi for the 2nd DefendantMr. Kuchio for the 1st DefendantN/A by the Plaintiff and the 3rd DefendantCourt Assistant: AlexM.D. MWANGIJUDGE