https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3613

Gathara v Gathiri & 2 others (Environment and Land Case E024 of 2024) [2026] KEELC 3613 (KLR) (10 June 2026) (Judgment) Neutral citation: [2026] KEELC 3613 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Case E024 of 2024 EK Makori, J June 10, 2026 Between Gathiri Gathara Plaintiff and Susan Nyambura Gathiri 1st Defendant Samuel Gathara Gathiri 2nd Defendant Caroline Nyambura Gathiri 3rd Defendant Judgment 1.The Plaintiff instituted this suit by Plaint dated September 12, 2024, in which he averred that he was the owner of LR. No. Ruguru/Sagana/604, whose title was closed upon subdivision into Ruguru/Sagana/624, 635, 626, and 627. 2.That he was to give 0.201ha, being the first house to be registered in the names of the 1st and 2nd Defendants, and an equivalent portion to a second house, to be registered in the names of the 3rd and 4th Defendants. The Plaintiff retained for himself a portion of 0.177ha and disposed of a portion of 0.2ha, which he states was to cater for his medication, which is the portion now known as LR. Ruguru/Sagana/624. 3.He states that the other portions were not properly marked on the mutation form and that he had intended to retain the portion adjacent to LR, Ruguru/Sagana/624. He has tried, by consent, to have the 3 portions known as LR, Ruguru/Sagana/625, 626, and 627, properly marked on the mutation form with his children, but in vain. 4.The Plaintiff now seeks to have the four title deeds canceled to revert to the original title deed in his name for proper allocation to each house, in accordance with where the developments are on the ground. 5.The Plaintiff thus seeks the following orders:a.Title to parcels Ruguru/Sagana 624, 625, 626, and 627 be canceled to revert Ruguru/Sagana/604, and a fresh subdivision be done into 4 portions of the same size, arranged differently.b.That the 1st and 2nd Defendants get 0.201 ha in trust for their mother's household.c.That the 3rd and 4th Defendants are to get the portion of 0.201 ha in trust for their mother’s household.d.That the Plaintiff gets a portion of 0.177 ha adjacent to parcel 624, whereas parcel 624 remains where it is.e.That the Plaintiff bear the costs of cancellation and re-subdivision.f.That each party bears its own costs 6.The Defendants did not file a statement of defense despite being served with the summons to enter an appearance, 7.The suit was heard on February 10, 2026, when the Plaintiff adopted his witness statement and bundle of documents as his evidence in chief. In his witness statement dated September 12, 2024, he reiterated that he is the owner of LR. No. Ruguru/Sagana/604, which was closed for subdivision numbers Ruguru/Sagana/624, 635, 626, and 627. 8.He stated that he noted that his portion was not where it ought to be on the ground, and that the first and second house developments were not in the places where they were allocated. 9.That he had talked to his children, the Defendants herein, to have the title re-parceled to enable each party to take their portion as per developments on the ground in vain. 10.He thus seeks a Court order canceling the titles arising from the subdivisions and doing a fresh mutation as proposed in his claim, while retaining the same acreage for each house, as his only aim was to distribute each person their portion of land so that they could co-exist peacefully while he was in a hospital bed. The Plaintiffs/Applicants submissions 11.The Plaintiff’s Advocate submitted that after subdivision, the Plaintiff sold one portion, Ruguru/Sagana/624, to cover his medication costs. The other 3 portions were to be given to the first wife's house and the second wife’s house, represented by the second Defendant, with each house receiving one portion, while he retained the 4th portion, measuring 0.177 ha. 12.All this had happened while the Plaintiff was unwell in the hospital. In the confusion, the surveyor had the parcel numbers registered incorrectly, so the Plaintiff's portion, which was to be adjacent to 0.2 ha, was sold at the other end of the farm. 13.Further, the registered portions for the respective houses do not align with how they have settled. The Plaintiff's evidence shows that he tried to speak with his children to have the 3 titles canceled and re-parcelled, enabling each of them to take a similar-sized parcel in a different position on the ground, but in vain. That's the basis of the Plaintiff's claim herein. 14.The Plaintiff thus seeks a Court order canceling the four title deeds, Ruguru/Sagana 624, 625, 626, and 627, and ordering a fresh subdivision. Counsel submits that the Plaintiff's claim is merited, considering the Plaintiff's intentions and the developments of his 2 wives' houses. 15.The Plaintiff submits that the land registrar should also be directed to dispense with the Defendants' documents, and that, for the peaceful sub-division exercise, the O.C.S Kiamariga police station should provide security during the sub-division exercise. The Plaintiff, as a responsible father, has undertaken to bear all the costs. Analysis and Determination 16.The Plaintiff herein, as the proprietor of LR No. Ruguru/Sagana/604, subdivided it into LR Nos. Ruguru/Sagana/624, 635, 626, and 627. 17.He states that he intended to give 0.201ha, the first wife’s household, to be registered in the names of the 1st and 2nd Defendants, and an equivalent portion to the second wife’s household to be registered in the names of the 3rd and 4th Defendants. The Plaintiff retained for himself a portion of 0.177ha and disposed of a portion of 0.2ha, which he states was to cater for his medication, now known as LR. Ruguru/Sagana/624. 18.He states that the said portions are no longer located where he had wished them to be and prays that the resultant subdivisions be canceled and that a fresh subdivision be made as he had intended. 19.Section 42 of the Land Registration Act Cap 300 provides that;“No part of the land comprised in a register shall be transferred unless the proprietor has first subdivided the land and duly registered each new subdivision.” 20.The new subdivisions have already been registered, and titles have been issued, as shown in his bundle of documents. He now wishes the same to be canceled and subdivided afresh, but his children have refused to have the titles re-parceled. 21.A registered proprietor has the freedom to do as they wish with their parcel of land, provided that it is lawful. Munyao J. (as he then was) in the case of Oganga & another v Orangi & 3 others (Environment & Land Case 466 of 2015) [2023] KEELC 16348 (KLR) held that:“Was the 1st defendant under any legal obligation to involve them in such a sale? I do not think so, and Mr. Nyamurongi did not refer me to any law or any authority which asserts that a parent must consult and obtain consent of his children before disposing of his/her free land. In fact it is despicable, if not outrageous, for a child to assert that his father or mother, must subdivide his land in a particular way, and proceed to sue his parent because he/she does not wish to deal with the land in the way proposed by the child…… It is time that children stopped having a notion, that what belongs to their parents also belongs to them in equal measure, and that their parents must subdivide and distribute land to them in a particular manner.” 22.Similarly, in Hudson Wanyonyi Wasike & 2 Others v. Peter Wanyonyi Simwelo & 6 Others [2011] eKLR, it was held that:“The first Defendant was therefore the absolute proprietor of NDIVISI/MIHUU/15 with all the rights and privileges pertaining thereto as provided for by section 27 and 28 of the Land Registered Act Cap. 300. In his capacity as the absolute proprietor, the first Defendant is entitled to deal with his land as he wishes during his lifetime. He may give the whole of the land or part of it to any person of his choice.” 23.In conclusion, the Plaintiff is granted the orders he requested to redistribute the suit lands as he planned. However, I observe that he mentioned selling Parcel 624 but wants it to remain where it is. To prevent potential land disputes, I believe the title for LR. Ruguru/Sagana/624 should remain intact, and the acreage should not be resurveyed. The remaining parcels may be re-subdivided, and relocation can proceed according to the Plaintiff's wishes and the prayers sought in the plaint. 24.No orders as to cost DATED, SIGNED, AND ELECTRONICALLY DELIVERED IN NYERI ON THIS 10TH DAY OF JUNE, 2026.E. K. MAKORIJUDGEIn the presence of:Ms. Wahome for the PlaintiffDennis: Court AssistantIn the absence of:The Defendants (in person)