https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3009

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **MISC CIVIL APPLICATION NO.E017B OF 2024** **EPHRAIM KARIUKI WAMBUGU……………………………APPLICANT** **-VERSUS-** **NATIONAL LAND COMMISSION……….………………RESPONDENT** **RULING** 1. Before this Honorable Court is an Application filed by the Applicant through a Notice of Motion dated July 22, 2024, seeking the following Orders: 2. ***Spent.*** 3. ***THAT the registered owners of LR. No. Aguthi/Gatitu/3447 and the beneficiaries of the land confirm that they have not appointed any trustees as shown elsewhere in the respondent’s paperwork, and that the question of their representation and the final payment of general compensation shall remain their advocates’ responsibility.*** 4. ***THAT the NLC should deal with the advocate of record in this compulsory acquisition and should desist from dealing with any other person, especially by deviating from the matters in the judgment as declared by the court on 27/4/2023, wherefore any deviation from the judgment shall lead to further court action.*** 5. ***THAT the intervention by the respondent (meaning Ms. Mutabari) on the 15th of June 2023, when she inexplicably obtained a Decree in ELCA No. 1 of 2023 after counsel for the applicants/appellant had obtained judgment on 27/4/2023, was unethical, and that the Decree obtained by her should be recalled and kept in the safe custody of the Court, as this could interfere with the payment of just compensation to the beneficiaries.*** 6. ***THAT the representation of the appellants shall remain as it has been in ELCA No. 1 of 2017, with Wanyiri Kihoro at the head of the team. However, if there is a succession matter involving a non-connected individual, it could be removed.*** 7. ***THAT the costs of this application should be provided for.*** 8. The Application is supported by the affidavits of the 1st Applicant, Ephraim Gathuma Kabungo, and the 2nd Applicant, Wanyiri Kihoro, Advocate for the Applicants. The 1st Applicant deposed that he became the 3rd registered owner of LR. No. Aguthi/Gatitu/3447 on 7th December 1999 on behalf of 27 others who represent sub-families of the late Senior Chief Wambugu Mathangani, and that the 2nd Applicant, Ephraim Kariuki Wambugu, was the first registered owner. He further deposed that he was the registered owner together with 4 other persons until 17th January 2014, when the Land Registrar transferred the said title from them to the Government of Kenya. 9. That Wanyiri Kihoro was appointed as advocate for the registered owners and beneficiaries on March 23, 2007, after consultation before the gazette inquiry, when the process of compulsory acquisition began. 10. That since then, the said Advocate has represented the beneficiaries of the Late Chief Wambugu in two cases, **Misc. Civil Application No. 9 of 2009 (O.S.) and ELCA 1 of 2017**. 11. That the Court has addressed the question of quantum of compensation in **ELCA 1 of 2017**, and the Court delivered its judgment on April 27, 2023. The Court rejected many applications by individuals seeking a share of the compensation. 12. Lastly, he deposed that there are no trustees of the Wambugu Mathangani family as alleged, and that after the government's takeover of the subject property, there is no other property of the Late Chief Wambugu except LR Aguthi/Gatitu 3447. 13. Wanyiri Kihoro, Advocate, deposed that he has been involved in the compulsory acquisition of LR Aguthi/Gatitu 3447 since 2007, when the process was gazetted 14. Since that time, the parties have undergone an inquiry and litigated two main cases, Misc. Civil Application No. 9 of 2009 (O.S.) and ELCA 1 of 2017 are now awaiting payment of compensation as awarded in the Appeal case on April 27, 2023. 15. That the National Land Commission filed an application for review of the judgment in January 2024, and on 6th May 2024, Mr. Haji, representing them, stated to the Court that they have been working to resolve the discordant voices among the recipients of the compensation. 16. Further, that his client, Ephraim Kariuki Wambugu, was perceived to be deceased by the National Land Commission, even though he is still alive, as per the letter dated 8th April 2024. 17. That during the hearing on the 16th of July 2014, one Ms. Mutabari stated that she was representing the said Ephraim Wambugu, whom the Advocate says he has represented on all platforms in this matter, 18. He denied the existence of a trust known as the Wambugu Mathangani Family Trust, as sworn to by James Wanyaga Gathaka and Charles Wachira Kariuki, stating that the late Wambugu Mathangani did not establish a trust for himself. **The 2nd Respondent’s Replying Affidavit.** 1. Joan Mutabari filed an affidavit in reply to the application and deposed that she is the daughter of Ephraim Kariuki Wambugu, who is named as the 2nd Applicant herein. She stated that her father is currently ill and incapacitated; he did not issue instructions to Counsel to file the instant application. She prayed for his name to be struck off the record. 2. Upon learning of the present application, her siblings and she, as the immediate family members of the purported 2nd applicant, wrote to the Advocate on the matter, and they have yet to receive a response. 3. The deponent noted that the affidavit of the 1st Applicant could not have been signed before a qualified Commissioner of Oaths as required by the Oaths and Statutory Declarations Act, because he was out of the country, and deems it as fatally defective. 4. Further, she contends that Advocates representing their clients are prohibited from making and swearing Affidavits on contentious matters. Presently, Mr. Wanyiri Kihoro, Advocate, has made and sworn an Affidavit in support of the Application. However, the Affidavit delves into contentious matters, including family meetings and the existence or nonexistence of a trust. 5. The deponent thus urges the Court to expunge both Affidavits from the record, declare the application fatally defective for want of a proper supporting affidavit, and strike it out with costs. 6. In addition, the 2nd Respondent deposes that the orders sought in the application are unmerited and should be declined. Specifically, the applicant seeks to have this Honorable Court issue an order against and affecting persons who are not parties to the present application. 7. Regarding the order sought in prayer 3 of the application against the 1st respondent, it is vague and ambiguous. It lacks the particularity that this type of order is inherently incapable of enforcement and should not be granted. 8. She further deposed that the order in prayer 4 of the application is vague and lacks particularity. That she has never purported to act for any party in case **No. ELCA No. 1 of 2023** in any Court station in the country. She also denied having obtained a decree in the said proceedings as alleged. Furthermore, she believes that recalling a decree due to parties through the present application, without their participation, will be an egregious perpetration of injustice and a violation of the right to a fair hearing. 9. The 2nd Respondent invited this Court to find that the Application lacks merit and to dismiss it with costs. **The 2nd Respondent’s written submissions** 1. Counsel for the 2nd Respondent submitted that the 2nd applicant should be struck from the proceedings because he is improperly joined to the application, as he did not issue instructions to the Advocate to bring the application on his behalf. 2. Secondly, under the Oaths and Statutory Declarations Act, a person must appear before the Commissioner for Oaths to take an affidavit. In this case, the 1st applicant was abroad; he could not have appeared before the Commissioner for Oaths, rendering the affidavit invalid and subject to being struck out. 3. With regards to the affidavit of Wanyiri Kihoro, Advocate, it is submitted that this Court is urged to strike out this affidavit as it offends the requirements of Order 19 Rule 3 of the Civil Procedure Rules, which confines affidavits to matters of fact within the deponent’s knowledge. 4. Submitting on the prayers sought in the instant application, the 2nd respondent submits that the orders sought are vague and imprecise. They placed reliance on the case of **Odongo v Attorney General & 2 others (Environment & Land Case 57 of 2021) [2022] KEELC 3085 (KLR) (5 May 2022) (Ruling),** where the court stated that it cannot infer the intent of the parties; it is the litigants who must be clear in their pleadings. 5. In prayers 4 and 5 of the application, they submit that the application explicitly refers to **ELCA No. 1 of 2023 and ELCA No. 1 of 2017**, respectively. These are separate proceedings whose issues cannot be resolved through the present application. Any aggrieved party should procedurally apply in the named files for determination, and entertaining these prayers in the present application risks the court condemning the parties in those cases to an unheard outcome, contrary to the rules of natural justice. Thus, the prayer is that this application be dismissed with costs. **Analysis and Determination** 1. The instant application seeks several prayers, referring to other matters that arose in other cases and not the present miscellaneous application, and also refers to beneficiaries who are not named herein, such as Nyeri ELCA Appeal Number 1of 2017 and Miscellaneous Application 9 of 2009. 2. To begin with, they have prayed that registered owners of LR. No. Aguthi/Gatitu/3447 and the beneficiaries of the land confirm that they have not appointed trustees over the late Chief Wambugu’s land. Save for the two applicants, none of the other beneficiaries of the same have been named herein this application, thus the Court cannot proceed to confirm something that has not been confirmed by the beneficiaries themselves, which prayer I note is not in the nature of an order. In the case of **Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] eKLR,** the Court of Appeal decided that they would not issue orders to parties not enjoined in the suit and remarked as follows: ***“In the course of its judgment in that appeal, to wit Civil Appeal No.215 of 1996, the court, differently constituted from the earlier appeal, made remarks, to the effect inter alia, that the suit as presented raised issues which touched on certain parties who had not been joined in the suit and against whom orders would not be made unless they had been given an opportunity to be heard on the matter.”*** 1. The Applicants also seek that the National Land Commission deal with the advocate of record in this compulsory acquisition and refrain from dealing with any other person, especially by deviating from the matters in the judgment as declared by the court on 27 April 2023. Any deviation from the judgment shall lead to further court action. However, this matter should be handled directly by the National Land Commission and the beneficiaries, as the involvement of advocates is unnecessary. 2. The mandate to determine matters of compulsory acquisition is now a preserve of the National Land Commission, established by **Article 67** of the Constitution. **Article 67(1)(a)** and **(h)** provide that: ***“There is established the National Land Commission.*** ***(2) The functions of the National Land Commission are--*** 1. ***to manage public land on behalf of the national and county governments;*** ***(h) to monitor and have oversight responsibilities over land use planning throughout the country.”*** 1. In addition to this, **Section 107** of the Land Act CAP 280 provides that: ***“Whenever the national or county government is satisfied that it may be necessary to acquire some particular land under section 110, the respective Cabinet Secretary or the County Executive Committee Member shall submit a request for acquisition of land to the Commission to acquire the land on its behalf.”*** 1. The court in the case of **Patrick Musimba v National Land Commission & 4 others (2016) eKLR**summarized the process of compulsory acquisition and observed as follows; ***“Under Section 107 of the Land Act, the National Land Commission (the 1st Respondent herein) is ordinarily prompted by the national or county government through the Cabinet Secretary or County Executive member respectively. The land must be acquired for a public purpose or in public interest as dictated by Article 40(3) of the Constitution. In our view, the threshold must be met: the reason for the acquisition must not be remote or fanciful. The National Land Commission needs to be satisfied in these respects, and it can do so by undertaking the necessary diligent inquiries, including interviewing the body intending to acquire the property…******On completion of the inquiry the National Land Commission makes a separate award of compensation for every person determined to be interested in the land and then offers compensation. The compensation may take either of the two forms prescribed. It could be a monetary award. It could also be land in lieu of the monetary award, if land of equivalent value, is available. Once the award is accepted, it must be promptly paid by the National Land Commission. Where it is not accepted then the payment is to be made into a special compensation account held by the National Land Commission: see Sections 113- 119 of the Land Act.*** 1. Thus, in my opinion, it remains the mandate of the National Land Commission to identify the real beneficiaries of the late Senior Chief Wambugu and to compensate them accordingly. It can only be guided by this Court’s previous judgments, not dictated by them. The matter of advocates' representation is a non-issue, as the Counsel are not the beneficiaries of compensation after compulsory acquisition, and the Court cannot establish their representation in the absence of the other beneficiaries. 2. Mr.Wanyiri Kihoro, Advocate, has sworn an affidavit in support of this application, deposing to matters such as family meetings and whether the family of the late Chief Wambugu has trustees, which are matters best left to an applicant to depose upon. The Court of Appeal, sitting at Mombasa, in the case of **Ibrahim & another v Muhsin & another (Civil Application E058 of 2024) [2024] KECA 862 (KLR),** took the following position on the matter of advocates swearing affidavits instead of their clients: ***“The general rule is that advocates should not swear affidavits in contested matters. Where the client is available to swear to the disputed facts, the depositions in the affidavit of the advocate, may amount to hearsay unless their sources and grounds for belief are disclosed. More importantly, an advocate who swear an affidavit in contested matters potentially of exposes himself to playing the role of both advocate and witness should they be called upon to take the witness stand in order to be cross-examined on the said affidavits…….*** ***This Court in Pattni v Ali and Others [2005] 1 EA 339; [2005] 1 KLR 269 held that:*** ***“Whereas it is right that advocates should not swear affidavits on behalf of their clients when their clients are readily available to do so as this accords with the spirit of the best evidence rule and in view of the provisions of Order 18 rule 2, with common sense and it would be embarrassing to apply those provisions to an advocate who may have to relinquish his role as one to become a witness.”*** 1. Similarly, Nyamweya JA in the case of **Turea Limited t/a Dr. Mattress v Mohamed (Civil Application E030 of 2022) [2022] KECA 1271 (KLR)** concluded that: ***“On the affidavit filed in support of the application that was sworn by the Applicant’s advocate, under Rule 9 of the Advocates Practice Rules, it is not the mere swearing of an affidavit by an advocate that renders it defective, but the swearing of an affidavit on contentious issues of which he or she has no knowledge of.”*** 1. Further, the 2nd Respondent contends that the 1st Applicant is out of the country and therefore could not have sworn the supporting affidavit before a Kenyan Commissioner of Oaths. The 2nd Respondent also contends that the 2nd Applicant, her father, is ill and incapacitated and therefore could not have instructed Counsel to file the present application. If these two allegations are true, they are contentious matters that can only be resolved by cross-examining the 1st Applicant/deponent. However, this is not a substantive suit with real issues for determination and does not require such measures. 2. Prayer numbers 3 and 4 relate to **ELC Appeal No. 1 of 2017**, matters that do not arise in the present application and proceedings to which this Court is not privy. 3. For the above reasons, the entire miscellaneous application lacks merit and is dismissed in its entirety with costs. **Ruling Dated, Signed, and Delivered at Nyeri** **This 14th day of May 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr. Wanyiri for the Applicant** **Mr. Pamba for the 2nd Respondent** **Kendi: Court Assistant**