https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3142

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA** **ELC LAND APPEAL NO. E041 OF 2024** **ROSEMARY WANYAMA CHELEKESI ..………..……1ST APPELLANT** ***HOLDING TRUST FOR*** **MOSES MBEKI CHELEKESI …….………………….. 2ND APPELLANT** **BILL MUKITAN’A CHELEKESI ………..…………… 3RD APPELLANT** **MOSES WATILA CHELEKESI ………………...…….. 4TH APPELLANT** **VERSUS** **JUDITH NABALAYO CHELEKESI ..…………………. RESPONDENT** **JUDGMENT** 1. The Appellants lodged this appeal being dissatisfied with the ruling and orders of Hon. T.N. Olando, Principal Magistrate, (PM) delivered on 21/8/2024 in Bungoma CM ELC Case No. E063 of 2023. The Appellants faulted the Learned Magistrate for dismissing their application dated 24/5/2025 and for upholding the preliminary objection filed by the Respondent. The Appellants invited the court to set aside the ruling of the PM, evaluate the evidence on record and arrive at its own conclusion. 2. The appeal was canvassed through written submissions. The Appellants submitted that the Respondent sued them in the plaint dated 19/5/2023 seeking a prohibition order against the parcels of land listed in paragraphs 5, 6 and 7 of the plaint, pending the hearing of succession cause to be filed in court. The Appellants filed their defence in the suit. After hearing the case, the trial court delivered its judgment on 20/12/2023 in favour of the plaintiff, the Respondent in this appeal. 3. The Respondent filed the application dated 13/2/2024 pursuant to which interim orders were issued on the same day to the effect that the parcels of land known as Chwele plot no. 73, plot no. Malakisi Township 5 and E. Bukusu/S. Kanduyi/4089 were to be transferred back to the name of the late Walter Chelekesi Wachila as per the judgment. The Appellants submitted that that order was quickly extracted and served upon the land registrar, Bungoma, who immediately cancelled the Appellants’ names from the register for E. Bukusu/S. Kanduyi/4089. On 28/2/2024, the application dated 13/2/2024 was dismissed for want of prosecution but the cancellation of the land register at the land’s office remained intact which prompted the Appellants to file the application dated 24/5/2025 seeking cancellation of entries no. 3 to 8 in the land register for E. Bukusu/S. Kanduyi/4089. 4. The trial court disallowed the application dated 24/5/2025 on the basis that the register was not produced to prove that an entry was made on the land register on 15/2/2024. The Appellants submitted that the land known as E. Bukusu/S. Kanduyi/4089 was not part of the parcels of the land mentioned in the plaint. Further, that the land was registered in the names of the 2nd to 4th Appellants. They contended that despite the application dated 13/2/2024 being dismissed for want of prosecution, the entry made on the register on 15/2/2024 remained on the register and needed to be removed in order to reinstate entry numbers 3 to 8 of the register. 5. The Appellants maintained that a copy of the register was duly filed and that the Learned Magistrate erred when he stated that it was not on record. They faulted the Respondent for using the back door to introduce new parcels of land which did not form part of the suit when she filed the application dated 13/2/2024, which led to the cancellation of the names of the Appellant and thereafter abandoning the application. 6. The Respondents submitted that the appeal emanated from the the proceedings where an order was given and the document dated 13/2/2024 was filed at the land registry. The Respondent urged that the parcel no. E. Bukusu/S.Kanduyi/4089 was among the parcels of land to be transferred back to the name of the late Walter Watila Chelekesi. The Respondent urged that judgment was delivered on 8/12/2023 and the applicants filed their application on 24/5/2024. She maintained that the Learned Magistrate did not see the copy of the land register but only saw the letter from the Appellants’ advocate. She added that by the time the Respondent filed the case in the magistrate’s court, Walter Watila Chelekesi was already dead. 7. She contended that after marrying Walter Chelekesi, they acquired the property jointly and that parcel no. E. Bukusu/S. Kanduyi/4089 was one of parcels of land which she wished to prohibit. She adverted to the prayers sought in the plaint seeking a prohibition order against all the titles in paragraphs 5, 6 & 7 pending hearing of the succession cause to be filed in court. She pointed out that paragraph 6 specifically mentioned E. Bukusu.S. Kanduyi/4089 and added that the succession matter was going on in the High Court as succession cause no. E005 of 2024. She argued that all the titles bore the names of Walter Watila Chelekesi. She added that there was no preliminary objection that emanated from her advocate and invited the court to dismiss the appeal. 8. The issue for consideration is whether the court should grant the appeal. Through the application dated 24/5/2024, the Respondent sought cancellation of the entry registered on 15/2/2024 cancelling entry numbers 3 to 8 on the register for E. Bukusu/S. Kanduyi/4089. The application was made on the grounds that the Respondent had erroneously included this parcel of land in the application dated 13/2/2024 yet this parcel of land did not form part of the suit land. It was contended in that application that the Respondent used the court order issued by the trial court on 13/2/2024 to firstly, cancel the title over E. Bukusu/S. Kanduyi/4089 and secondly, to include parcels of land which were not in the plaint. The Appellants also contend that the orders in the plaint which were allowed were in respect of inhibition and not cancellation of the titles. 9. The orders made by the Learned Magistrate on 13/2/2024 with respect to the application dated 13/2/2024 were to the effect that Chwele Plot No. 23, Malakisi Township Plot No. 5, E. Bukusu/S. Kanduyi/4089 were to be transferred back to the names of the deceased Walter Chelekesi Watila as per the judgment of the court. The court fixed that application for *inter parties* hearing on 28/2/2024, but on that day the plaintiff’s advocate informed the court that it had not been served on the defendants. It was fixed for hearing on 21/3/2024. The application was dismissed on 21/3/2024 for want of prosecution. Meanwhile, the court order of 13/2/2024 was promptly registered against the register for E. Bukusu/S. Kanduyi/4089 on 15/2/2024 even before the application had been argued *inter partes*. 10. The Appellants filed the application dated 24/5/2025 seeking to have the entry made on 15/2/2024 cancelling entries 3 to 8 on the register in respect of E. Bukusu/S. Kanduyi/4089 removed or cancelled. In the ruling of 21/8/2024, the Learned Magistrate stated that the annexure to the supporting affidavit was a letter dated 20/5/2024 written by Wamalwa and Simyu Co. Advocate to the land registrar which did not constitute the land register. The court concluded that the applicant had not demonstrated that there was an entry made on the register on 15/2/2024 and that the court needed to see that entry before making any orders. The court dismissed the application for lacking merit. 11. The copy of the register for E. Bukusu/S. Kanduyi/4089 shows that on 15/2/2024 entries number 3 to 8 were cancelled by the court order in MCELC Case No. 63 of 2023 pursuant to the order dated 13/2/2024 from Bungoma CMC Court. Entry no. 4 had the names of Walter Chelekesi Watila, Bilcah Machuma Chelekesi, Moses Beki Chelekesi and Bill Mukatanga Chelekesi (a minor). Entry no. 6 dated 8/8/2023 shows that Moses Chelekesi was registered as the owner and on 15/8/2023, Bill Mukitanga Chelekesi was registered as the owner of the land and a title was issued to him on 15/8/2023. Entry no. 8 dated 8/12/2023 shows that the title was closed when the land was subdivided and given new numbers 26909 to 26911. 12. The basis for the cancellation of entries number 3 to 8 on 15/2/2024 was the judgment of the trial court. In the judgment delivered on 20/12/2023, the trial court found that the plaintiff (the Respondent in this appeal) had proved her case on a balance of probabilities and entered judgment as prayed. Contrary to the assertion by the Appellants, E. Bukusu/S. Kanduyi/4089 constituted part of the suit land at paragraph 6 of the plaint. The court agrees with the Appellants that the relief sought in the plaint was a prohibition order against the titles listed in paragraphs 5,6 and 7 pending hearing of the succession cause and not cancellation of the titles over those parcels of land. 13. The court directs the Land Registrar, Bungoma to cancel the entry made on 15/2/2024 in the register for E. Bukusu/S. Kanduyi/4089 and replace it with a prohibitory order restraining dealings with E. Bukusu/S. Kanduyi/4089 pending hearing of the succession cause over the estate of the late Walter Chelekesi Watila. The appeal succeeds to this extent. 14. This being a family dispute, each party will bear its costs. Delivered virtually at Bungoma this 13th day of May 2026. **K. BOR** **JUDGE** **In the Presence of:-** Mr. Wamalwa Simiyu for the Appellants Ms. Lucy Nanzushi for the Respondent Court Assistant –Josephat Bett