Charo v National Land Commission & 3 others (Environment and Land Petition E001 of 2023) [2026] KEELC 3662 (KLR) (15 May 2026) (Ruling)

Charo v National Land Commission & 3 others (Environment and Land Petition E001 of 2023) [2026] KEELC 3662 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELC 3662 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Petition E001 of 2023 FM Njoroge, J May 15, 2026 Between Japhet Noti Charo Petitioner and National Land Commission & 3 others & 3 others Respondent Ruling 1.The petitioner’s application herein is dated 17/4/2026. It is seeking a temporary conservatory order restraining the respondents or any other person or entities from carrying out further subdivisions, alienation, leasing, issuance of title documents and/or adversely dealing with the suit property pending the hearing and determination of the present petition. 2.The application is supported by the affidavit of the petitioner. He states as his grounds to the application that he represents the estate of Charo Wa Shutu who was his father, now deceased; that the deceased lived on the suit land together with his 38 wives and 105 children; that the government promised to issue the title documents in respect of the suit land in the deceased’s favour; that the deceased was instructed never to permit anyone onto the suit premises; that the plot has undergone various subdivisions despite the state’s promises to the deceased; that the Shutu family has no other land save the suit land; that they risk being rendered homeless by the failure of the government to honour its promise, and now they seek in the present petition to be given the suit land or in the alternative be compensated at current market value. He alleges that the Shutu family residence is on the suit land and that conservatory orders should issue as prayed. 3.I have examined my earlier decision in the case of Malindi ELCC NO 10 OF 2008 in a ruling dated 30th day of September, 2025. 4.In Malindi ELC NO. 10 OF 2025, upon an application by one Rukiya, this court stated as follows in its ruling:“Rukiya does not peg her claim on the land on anything other than possession and lengthy residence thereon. She does not even purport to be an administrator of the estate of Charo Shutu under whose name and estate she possibly could be claiming, in order to demonstrate her locus standi. She has come to this court quite late in the day when this court has already dismissed the application filed by Katana Shutu Masha and Masha Shutu Fondo. The issues arising herein are similar to those in the application dated 11/11/24 filed earlier in this suit by Katana Shutu Masha and Masha Shutu Fondo and this court needs not rehash everything it stated in dismissing that application. In the said ruling this court gave the following as reasons for dismissal: 1.The applicants are not contending that they are residing on the premises; 2.They did not run the risk of eviction therefrom; the manner in which they narrated the fate of the widows of Charo Shutu showed that they had been aware of the history of the case all along; 3.The widows were also on the suit land; 4.The widows themselves have raised no issue and appear to have accepted the resettlement plan; 5.The deceased had lived only as squatters on the suit land; 6.The intervention of the local administration was only to help Charo Shutu consider his occupation on M5; 7.Evidence available showed that Charo Shutu had settled on plot no M5 after its acquisition, when it was already government land; 8.Prescriptive rights can not accrue against government land; 9.There was no evidence that Charo Shutu and his family had occupied the whole land known as M5; 10.The applicants in the application had failed to establish an identifiable stake in the suit land. 11.For the same reasons above, and also for the additional reason that the applicant has also failed to establish that she is in occupation of the plot subject of this suit known as L.R. 5785 which is owned by the respondent, I find that her application lacks merit and it is hereby dismissed with costs to the respondent.” 5.In Masha & another (Legal Representative of the Estate of Charo Shutu Masha) v Mwangi & 8 others [2025] KEELC 6478 (KLR) this court stated as follows:“I therefore find that the Petitioners have not established a prima facie case with a likelihood of success. Their claim is based on occupation of unspecified parts of Plot M5, which is evident, was subdivided and transferred to third parties long ago. For instance, the 5th Respondent’s portion L.R. No. 5785 is a registered subdivision that was lawfully alienated and whose ownership was confirmed by this Court. Moreover, the Petitioner have failed to demonstrate what portions are occupied by the 1st to 4th Respondents.” 6.In Masha & another (Legal Representative of the Estate of Charo Shutu Masha) v Mwangi & 8 others [2025] KEELC 6478 (KLR) this court also stated as follows:“ 37.Further, the part of the suit property is registered in the name of the 5th Respondent. The dispute was conclusively determined in its favour in 2019, and the judgment remains valid and enforceable. The Petitioners seek to reopen that dispute under the guise of a constitutional Petition, while still contesting the same parcel through Civil Appeal No. 32 of 2020. Allowing this Application would have the effect of staying enforcement of a lawful court decree through parallel proceedings. Such an outcome would undermine the principles of finality in litigation and respect for judgments of court. 38.Accordingly, the balance of convenience tilts in favour of upholding the title and rights of the 5th Respondent, as validated by a prior determination, until and unless set aside on appeal. 39.In conclusion, I find that the Petitioners have failed to demonstrate a prima facie case, imminent irreparable harm, or that the balance of convenience favours them. This Application is, in substance, an attempt to reopen matters already determined by this Court and currently pending on appeal.” 7.This court has noted that the petitioner in his prayers in the petition is seeking for an account by the government as to what befell its promises to the deceased; that an order to compel the issuance of title documents to the petitioner on behalf of the Shutu family; a declaration that the titles issued over portions of the land known as M5 are illegal null and void and that they be cancelled; an order of declaration that the Shutu family is entitled to remain on the suit property until all title documents have been prepared and issued to them; an order that the respondents do find the Shutu family alternative land to settle them on; an order that the petitioners be compensated with Kshs 3,000,000,000/- as the current market value of the land. 8.In the affidavit in support of the petition a surprising statement is made that the government issued Gazette Notices for the acquisition of the suit land in order to facilitate allocation to the deceased. A disclosure has been made to the effect that the National Land Commission has issued the petitioner with title documents to what he considers very small portions without any explanation as to why the family should not be issued with the whole land; that statement is made despite an acknowledgement that the land has already been subdivided and portions issued to different parties. 9.The pertinent overarching observation of this court is that it is evident that the land known as M5 no longer exists under that name having been subdivided and titles issued to different parties, including the petitioner. 10.Having regard to the previous litigation over the same land and the decisions of this same court over it involving the Shutu family as seen herein above, this court is of the view that first, there is a risk of any conservatory order made herein conflicting with earlier orders made in other litigation. That is the case more so where the applicant has not availed any evidence of their current residential site as per their admitted newly allocated portions mentioned in the affidavit in support of the petition, or the location of the plots of the other persons allocated titles carved out of land previously known as M5. The upshot of the foregoing is that the court may end up creating more confusion and conflict on the ground for acceding to the applicant’s plea for a conservatory order. 11.It is not lost on this court that the applicant has sought an alternative remedy of compensation in the main petition, the right to which, if proved, may resolve the dispute adequately and with finality. 12.Thirdly bearing in mind that the portions of the land may already be in the hands of some public entities as seen from the earlier decisions of this court, that may hinder their operations unnecessarily. 13.Fourthly, if there is an appeal pending against the decisions of this court made in respect of that land as intimated in the earlier court proceedings and decision in the earlier case cited, a conservatory order herein would be a shortcut and a pre-empting of the decision in that appeal, and this court would rather the applicant awaited the appellate decision which would obviate the need for the present petition. 14.The upshot of the foregoing is that the application dated 17/4/2026 lacks merit and the same is hereby dismissed with costs to the respondents. The petition shall be mentioned on 24th September 2026 for issuance of directions as to hearing. All responses to the main petition shall be filed and served within 60 days from this date and the petitioner is herby granted leave to file a supplementary affidavit in respect of the matters raised in those responses, if need be, before the mention date. DATED, SIGNED AND ISSUED AT MALINDI ON THIS 15TH MAY 2026.MWANGI NJOROGEJUDGE, ELC MALINDI.