https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4450

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLC E009 OF 2024** **GRACE GAITAU KIMANI ……………………..……………..….…………...………….. PLAINTIFF** **VERSUS** **HANNAH NYAMBURA KIMANI ……………..…………………….……..…..…. 1ST DEFENDANT** **JOHN KARANJA KIMANI ……………..…………………….……..…………… 2ND DEFENDANT** **LAND REGISTRAR, MURANG’A LAND REGISTRY ……………..…..…..….3RD DEFENDANT** **JUDGMENT** 1. The Plaintiff seeks the following reliefs against the Defendants. 2. **A declaration that the Plaintiff is the owner of Plot Nos. 2/Gitura/Makuta, Makuyu/Kimorori/Block 1/984, Makuyu Kimorori/Block 3/66 and Makuyu/Kimorori/Block 4/25.** 3. **A declaration that the cancellation of the entries in the titles register recognizing the Plaintiff as the owner of the properties known as Makuyu/Kimorori/Block 1/984, Makuyu Kimorori/Block 3/66 and Makuyu/Kimorori/Block 4/25 is illegal, null and void.** 4. **An order directing the 3rd Defendant to reinstate the Plaintiff as the owner of the properties known as Makuyu/Kimorori/Block 1/984, Makuyu/Kimorori/Block /66 and Makuyu/Kimorori/Block 4/25.** 5. **A permanent injunction do issue restraining the 1st Defendant, her servants or agents and others claiming through her from entering, remaining upon, using, dealing with or otherwise transacting or interfering with the Plaintiff’s quiet possession of the properties known as Plot No. 2/Gitura/Makutano, Makuyu/Kimorori/Block 1/984, Makuyu/Kimorori/Block 3/66 and Makuyu/Kimorori/Block 4/25.** 6. **A permanent injunction do issue restraining the 2nd Defendant, her servants or agents and others claiming through her from entering, remaining upon, using, dealing with or otherwise transacting with the Plaintiff’s quiet possession of the properties known as Plot No. 2/Gitura/Makutano, Makuyu/Kimorori/Block 1/984, Makuyu/Kimorori/Block 3/66 and Makuyu/Kimorori/Block 4/25.** 7. **An order do issue that the 2nd Defendant gives vacant possession of the property known as Makuyu/Kimorori/Block 3/66 including demolishing the structures thereon.** 8. **Costs of the suit.** 9. **Interest on (f) above.** 10. **Any further or other relief that this Honourable Court may deem fit to grant.** 11. The Plaintiff’s case is as follows. One, she was registered as the absolute owner of L.R. No. 12. **Plot No. 2/Gitura/Makutano.** 13. **Makuyu/Kimorori/Block 1/984.** 14. **Makuyu/Kimorori/Block 4/25.** Two, the first Defendant filed Murang’a ELC Case No. 289/2017 (formerly known as Nyeri ELC Case No. 513 of 2014). This suit challenged the Plaintiff’s ownership of the suit parcels. The suit was filed together with an application dated 15-6-2015 that sought interim orders barring any dealing in the suit parcels. Three, the Plaintiff’s previous advocate recorded a consent dated 14-7-2015 which resulted in an order issued on 18-8-2025 which cancelled the entries in the register indicating the Plaintiff as the owner of the suit parcels. This consent was entered into without any instructions from the Plaintiff and after the death of her husband who passed away on 8-1-2015. Four, the Plaintiff moved with speed and filed an application dated 6-10-2016 to set aside the consent order. The Court issued orders on 27-10-2016 allowing the application dated 6-10-2016 pending the hearing and determination of the suit. The order also allowed the 2nd Defendant to be joined as a party to the suit because he claimed to be the owner of the Plot No. Makuyu/Kimoroi/Block 3/66. Five, in the meantime and relying upon an order issued on 13-9-2026 in Nairobi Succession cause No. 812/2015 the 1st Defendant proceeded to register the order with the Land Registrar Murang’a who cancelled the entries indicating the Plaintiff as the owner of the suit parcels. Six, on 3-10-2018, the first Defendant through his advocate withdrew Murang’a ELC Case No. 289/2017 without the knowledge and the participation of the Plaintiff. The reason for doing so was said to be settlement of Nairobi Succession Cause No. 812 of 2015. Seven, the Plaintiff’s counsel recently conducted searches at the lands offices and confirmed the cancellation of the Plaintiff’s titles on the strength of the order issued on 13-9-2016. 1. The cancellation of the Plaintiff’s title to the suit parcels has shocked her because both her and the first Defendant were both married to the deceased Simon Kimani Njuguna. Before the deceased died on 8-1-2015 he had voluntarily transferred the suit properties to the Plaintiff as a gift. He had made his intentions known to all the members of his family including the 1st Defendant who had registered cautions against the parcels which were withdrawn on 1-11-2013. When the Nairobi Succession Cause was filed, the suit land had already been transferred to the Plaintiff and it did not belong to the estate of Kimani Njuguna alias Simon Kimani Njuguna. They were not therefore available for distribution and their transfer was unlawful. 2. In addition to the foregoing, the Plaintiff has resided on Plot No. 2/Gitura/Makutano Market since the 1970s together with her husband and children and this is her home. Further, her source of livelihood is land parcels Makuyu/Kimorori/Block IV/25, Makuyu/Kimorori/Block III/66 and Makuyu/Kimorori/Block IV/984 which she has been farming on to earn her livelihood. Currently, she has been prevented by the 1st and 2nd Defendants together with their family from utilizing the suit parcels including building a matrimonial home for retirement away from the urban center where she has lived when younger. Finally, the 2nd Defendant has put up a house on L.R. No. Makuyu/Kimorori/Block III/66 instead of No. 67 which he had been given by his father and which was registered in his name. For the above and other reasons, the Plaintiff prays for the above orders. 3. In support of her case, the Plaintiff filed the following evidence. 4. **Her witness statement dated 30-3-2024.** 5. **Copies of title deeds for L.R. No. Makuyu/Kimorori/BLK III/66, Makuyu/Kimorori/Block IV/25 dated 27-3-2014.** 6. **Certificates of official search for L.R. Nos. 66 and 25 dated 25-5-2025 and 26-5-2025 respectively.** 7. **Search certificate for Loc.5/Gitura/633/2 Makutano market dated 5-6-2015.** 8. **Copy of the consent dated 14-7-2015 in case No. Nyeri ELC 513 of 2014.** 9. **Copy of order dated 18-8-2015 issued in ELC Nyeri Case No. 513 of 2014.** 10. **Copy of application dated 6-10-2016.** 11. **Copy of order dated 7-10-2016 in Nyeri ELC Case No. 513 of 2014.** 12. **Copy of order dated 13-9-2016 in Nairobi Succession Cause No. 812 of 2015.** 13. **Copies of register for the suit parcels.** 14. **Certificates of official search for the suit parcels dated 1-4-2022 and 30-10-2023.** 15. **Copy of certificates of death of Kimani Njuguna.** 16. **Nine photographs showing the suit parcels.** 17. **Copy of letter dated 7-10-2023.** 18. In their written statement of defence dated 3-6-2024, the 1st and 2nd Defendants, through counsel on record deny the Plaintiffs claim and aver as follows. Firstly, the Plaintiff is not a co-administrator of the estate of Simon Kimani Njuguna and therefore lacks capacity to file this suit. Secondly, all the four suit parcels are registered in the name of Simon Kimani Njuguna who died on 8-1-2015 and they are the subject of Nairobi High Court Succession Cause No. 812 of 2015 which is still pending in Court. Thirdly, the registration of the suit parcels in the name of the Plaintiff was cancelled in Murang’a ELC Case No. 289 of 2017(formerly Nyeri ELC Case No. 513 of 2014) and they are now in the name of Simon Kimani Njuguna. In particular the succession court in Nairobi cancelled all orders, processes, transfers and disposals of any property comprising of the deceased’s estate including the suit parcels. Fourthly, the Plaintiff is in contravention of order 4 rule 1 (1) (f) of the Civil Procedure Rules for failure to mention Nyeri ELC Case No. 513 of 2013 and Nairobi Succession Cause No. 812 of 2015 involving the same parties and the same subject matter. Fifthly, in Nyeri ELC Case No. 513 of 2013 a consent was recorded on 14-7-2015 whereby the registration of the suit parcels in the name of the Plaintiff was cancelled and the title numbers reverted to the name of Simon Kimani Njuguna who was deceased by then. This cancellation ousted the jurisdiction of the Environment and Land Court. It is, infact, the Plaintiff who secretly filed the Nairobi Succession Cause without the consent of the family of the deceased and obtained a certificate of confirmation of Grant dated 17-5-2016 which was later revoked on 5-9-2016. For the above and other reasons, the 1st and 2nd Defendants pray for the dismissal of the Plaintiff’s suit with costs. 19. In support of their case, the 1st and 2nd Defendants filed the following evidence. 20. **Witness statements by the two Defendants dated 3-6-2024.** 21. **Copy of certificate of death of Kimani Njuguna No. 0107216 dated 4-2-2015.** 22. **Copies of certificates of official search for the suit parcels dated 16-7-2025.** 23. **Copy of the consent dated 14-7-2015 in ELC 513 of 2014, Nyeri.** 24. **Copy of order dated 18-8-2014, Nyeri.** 25. **Copies of register for the 3 suit parcels.** 26. **Copy of petition, affidavit in support of petition, certificate of confirmation of grant dated 17-5-2016, Ruling dated 5-9-2016, application dated 28-9-2022 and replying affidavit dated 20-6-2023 all in Nairobi Succession Cause No. 812 of 2015.** 27. At the trial on 25-2-2026, only the Plaintiff and the second Defendant testified. They adopted their witness statements and documents and reiterated what is contained therein. The only new thing that came up through cross-examination is that Plot No. Makuyu/Kimorori Block 3/67 measuring ½ acres and which is listed at page 18 of the Defendant’s trial bundle as item No. 18 does not belong to the estate of the deceased Kimani Njuguna but to the first Defendant. 28. Counsel for the parties filed written submissions dated 19-3-2026 and 13-4-2026 respectively. Only the Plaintiff’s counsel identified issues for determination. They include the following. 29. **Whether the suit parcels had been lawfully and procedurally acquired by the Plaintiff before the death of the late Simon Kimani Njuguna.** 30. **Whether the suit parcels were to be affected by the order issued in Nairobi Succession Cause No. 812 of 2015.** 31. **Whether the Plaintiff is entitled to the prayers sought in the plaint.** 32. **Who should bear the costs of these proceedings.** In the Defendant’s submissions, they have referred to the preliminary objections in paragraphs 10 and 11 of the written statement of defence dated 3-6-2024. They include the following. 1. **Whether the Plaintiff has *locus standi* to litigate over the estate of a deceased person without letters of administration or probate.** 2. **Whether this suit is res judicata under Section 7 of the Civil Procedure Act in view of the concluded Murang’a ELC Case No. 289 of 2017(formerly Nyeri ELC Case No. 513 of 2013) involving the same parties and the same subject matter.** 3. **Whether this suit offends the mandatory rule against *sub judice* in view of the** **pending Nairobi High Court Succession Cause No. 812 of 2015 involving the same parties and the estate of Kimani Njuguna alias Simon Kimani Njuguna, the registered owner of the suit lands in this matter.** 1. I have carefully considered all the evidence adduced by the parties including the witness statements, documents and the testimony at the trial. I have also considered the written submissions by learned counsel for the parties, the issues raised therein as well as the law relied upon. I make the following findings on the issues as identified by learned counsel. 2. Looking at the first of the Plaintiff’s issues, I do not have sufficient evidence to enable me reach a conclusion as to whether the suit parcels were lawfully and procedurally acquired by the Plaintiff. This seems to have been an issue in Murang’a ELC Case No. 289 of 2017 (formerly Nyeri ELC Case No. 513 of 2013). The pleadings in that case have not been filed here by the Plaintiff. How the said case was concluded is a very contentious issue. While the Plaintiff contends that the order issued on 15-6-2015 restored the titles to the suit land to her, the Defendants’ position is that the said order is a forgery. I did not have the benefit of the proceedings of 15-6-2025 to see what transpired in court on that date. All that I have on record is the contested order. I also have a ruling in Nairobi Succession Cause No. 812 of 2015 dated 5-9-2016 which states as follows at page 4 paragraph 3. “ **It has been brought to the attention of this Court that the Applicant has previously obtained irregular court orders in Nyeri ELC 513 of 2014. This was revoked and set aside by the Court order of Hon. Justice L.N. Waithaka of Nyeri High Court of 21-7-2015 annexed to the instant application.”** The other question that arises is why the Plaintiff had to file this suit if she was the successful party in the previous suit. Had she been the successful party, she would have executed. If she was not successful, the only avenues available were review or appeal to the Court of Appeal. The outcome of ELC Murang’a 289 of 2017 (formerly 513/2013) does not require validation by this Court. It should stand on its own. Finally, if there was any irregularly obtained order in that suit, it should have been set aside within the suit itself and not through another suit like this one. The Plaintiff is therefore guilty of failure to plead exhaustively to warrant a finding in her favour on the first issue. 1. Regarding the Plaintiff’s second issue, it is my finding that the suit parcels are to be affected by the order in Nairobi Succession Cause No. 812 of 2015 for the simple reason that they are in the name of the deceased Simon Kimani Njuguna and the Plaintiff has been unable to set aside the consent order that is dated 18-5-2015 which said that the title deeds to the suit land revert to the position they were on 5-12-2011 when Kimani Njuguna was the registered owner. 2. As for the Defendants’ first issue, it is my finding that the Plaintiff would have the requisite *locus standi* to litigate over the estate of the deceased without letters of administration if her suit was about her occupation of a particular parcel and she was threatened with eviction. I say this because, under Article 162(2) (b) of the Constitution, this court has exclusive jurisdiction to determine disputes relating to: – **“ (b) the environment and the use and occupation of, and title to land.”** Secondly, under Article 165 5(b) of the same Constitution it is provided as follows- **“ The High Court shall not have jurisdiction in respect of matters-** Falling within the jurisdiction of the Courts contemplated in Article 162 (2).” In this case, however, the Plaintiff is not saying that she is about to be evicted from land that she is in occupation of. Instead she is saying that she wishes to be declared the registered owner of specific parcels in the name of her deceased husband and in regard to land parcel No. Makuyu/Kimorori/Block 3/66, she wants the 2nd Defendant to give her vacant possession and also have his house demolished. It is outside the jurisdiction of this Court to determine which of the Dependants of the Deceased is to inherit which of the many parcels that are registered in the name of the deceased . That is the province of the High Court and from the little that I have seen, the deceased left behind a will that is to be executed by one John Karuru Kamau. The Plaintiff therefore has limited locus to litigate over any property that she is in occupation of, if that occupation is threatened. In this case the Plaintiff has not demonstrated that she is threatened with eviction. The reliefs that she seeks are outside the jurisdiction of this Court for now. 1. In answer to the Defendants’ second issue, I am unable to decide if this suit is res judicata Murang’a ELC Case No. 289 of 2017 (formerly Nyeri ELC 513 of 2013) for the same reasons that I gave earlier. The parties have not filed the pleadings in that case, in this case so I am unable to know what the issues were. Neither party has pleaded the issues in the said case. All that they have done is file orders which are not agreed upon. It was upon the party relying on those proceedings to file them in this case. None did. I am therefore unable to decide as I do not have sufficient material. 2. On the third and final the Defendants’ issues, I find that this suit offends the mandatory requirement of Order 4 rule (1) (f) which provides as follows. **“ The plaint shall contain the following particulars-** **(f) an averment that there is no other suit pending, and there have been no previous proceedings, in any court between the Plaintiff and the Defendant over the same subject matter and that the cause of action relates to the Plaintiff named in the plaint.”** Paragraph 20 of the plaint dated 30-3-2024 states as follows. **“ The Plaintiff states that there is no other suit or proceedings pending in any other court between her and the Defendant or any other person about the subject matter herein. “** The averment at paragraph 20 is not correct because we know that there is pending the Nairobi Succession Cause No. 812 of 2015 and it has been pending since the year 2015. It is also insufficient for failing to comply with Order 4 rule 1(f) of the Civil Procedure Rules as regards previous proceedings. This failure by the Plaintiff to plead all the necessary material is to blame for the inadequacy of the resolution of some of the issues framed for determination. It demonstrates lack of good faith on the part of the Plaintiff. 1. The Court finds, in regard to the Plaintiff’s third issue that she is not entitled to the prayers sought in the plaint and the reasons are given in the foregoing paragraphs. 2. In conclusion and for the reasons already given, I find no merit in the Plaintiff’s suit which I **dismiss** with costs to the 1st and 2nd Defendants. **It is so ordered.** **Dated, Signed and Delivered virtually at Murang’a this 13th day of July , 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistants – Antony and Jackline** **Plaintiff’s Counsel – Mr. Keiro** **1st and 2nd Defendant’s Counsel – Mr Kirubi**