https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3550

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC PETITION NO. E003 OF 2022** **INSPECTOR GENERAL OF POLICE…….…….………….…..1ST PETITIONER** **THE ATTORNEY GENERAL………..………………………..2ND PETITIONER** **VS** **FREDRICK NJUGUNA NJAGI…….……………..…....……1ST RESPONDENT** **SELESIO NJERU MUTISYA.…….………………..…...……2ND RESPONDENT** **PATRICK NJUKI NYAGA…..……………………..…..……3RD RESPONDENT** **ELIAS GITONGA NGIGE………...…………………………4TH RESPONDENT** **LUCY NJOKI LAWRENCE………………………………....5TH RESPONDENT** **AND** **COUNTY GOVERNMENT OF EMBU………………1ST INTERESTED PARTY** **NATIONAL LAND COMMISSION…………………2ND INTERESTED PARTY** **JUDGMENT** 1. Vide a petition dated 28/06/2022 the petitioners herein seek the following orders; 1. A declaration that the Petitioners rights under Article 40, 47, 50 and 62 of the Constitution of Kenya, 2010 have been violated by the Respondents. 2. A declaration that the 1st Petitioner is the rightful and beneficial owner of all that parcel of land measuring 1.6Ha allocated vide part development plan dated 12/08/2008 by the then Mbeere County Council. 3. An order of cancellation of titles to land parcels Evurore/Evurore/2989-2995, 3071-3075, 3205-3209 and 3279-3287 derived from the suit land Evurore/Evurore/1067. 4. Restoration of the tile to land parcel Evurore/Evuro/1067 as public land. 5. An order setting aside and or reviewing the ruling allowing the application dated 17/04/2015 delivered by Hon. F. Muchemi on the 22/10/2015. 6. An order of permanent injunction restraining the 1st, 2nd, 3rd, 4th and 5th Respondents by themselves, their agents, employees, and anybody else whomsoever acting on their behalf from entering, remaining on, building, cultivating, depositing building materials, leasing and or otherwise interfering with the Petitioners’ ownership, use, occupation, enjoyment and r development of all that parcel of land measuring 1.6Ha allocated vide part development plan dated 12/08/2008 by the then Mbeere County Council. 7. Any other further or better relief the court may deem fit to grant, including disposal of Embu Misc Application No. 47 of 2007 and Embu ELC No. E012 of 2020. 8. Costs and interest of the petition. 2. In support of the Petition, the Petitioners filed a supporting affidavit dated 28/06/202, sworn by Daniel Ithimbi Rukunga, the County Police Commander in charge of Embu County on behalf of the 1st Petitioner. He deposed thatland parcel No. Evurore/Evurore/1067 was registered on 07.05.1987 and reserved for Ishiara Secondary School with the Embu County Council recorded as proprietor according to records within the custody of the Land Registrar.He averred thatin the year 1996, the Government of Kenya created the Mbeere County Council by hiving it from the larger Embu County Council.As a result, all the assets which were under the control and management of the Embu County Council falling within the geographical location of the Mbeere County Council, became vested in the Mbeere County Council immediately. 3. He deposed that land parcel No. Evurore/Evurore/1067 therefore came under the control and management of the Mbeere County Council and Embu County Council ceased to have any proprietary rights over the suit parcel.That the Mbeere County Council thereafter, asserted its rights and interest over the suit land on various occasions when the same were threatened for instance, by registering a caution on 07/02/2006. He averred that in further exercise of its rights and interests over the suit land, the Mbeere County Council on 16/12/2005 allocated vide PDP dated 12/08/2008, part of the suit land measuring 1.6 hectares for construction of Ishiara Police Station. The said portion is now known as Evurore/Evurore/3073 having been excised from original land parcel No. Evurore/Evurore/1067 and has been in the exclusive occupation and use of Ishiara Police Station since 2005. 4. He deposed further that land parcel No. Evurore/Evurore/3073 was registered on 07.02.2017 in the name of Fredrick Njuguna Njagi, the 1st respondent herein as a result of sub-division of land parcel No. Evurore/Evurore/2989. That land parcel No. Evurore/Evurore/2989 was registered on 10/05/2016 as a result of sub-division of original land parcel No. 1067. He averred that these registrations were effected on the strength of a ruling delivered on 10/11/2015 by the High Court at Embu in Misc. Civil Application No. 47 of 2007 which ordered the removal of the caution dated 07/02/2006 placed by the County Council of Mbeere. 5. That, thereafter, the suit land parcel 1067 was later sub-divided and gave rise to parcels No. Evurore/Evurore/2989-2995 and Evurore/Evurore/2989 further sub-divided to Land Parcel No. Evurore/Evurore/3071-3075. He deposed further, that notwithstanding the existence and subsistence if various suits relating to the suit land, the 2nd Petitioner in exercise of the duties conferred by Article 156 of the Constitution on behalf of the 1st Petitioner, sought to assert the right, interest and exclusive possession of the 1st Petitioner on multiple occasions including registering restrictions on the suit land and the resultant sub-divisions. 6. He annexed to the supporting affidavit, a copy of the Green Card for land parcel No. Evurore/Evurore/1067, copies of Green Card for the resultant sub-divisions land parcel Nos. Evurore/Evurore 2989-2995, 3071-3075, 3205-3207, a copy of a letter from the Ag. County Clerk Embu County Council to the Diocese of Embu dated 11/10/1989, a copy of letter from the OCPD in Mbeere to the Clerk of the County Council of Mbeere dated 04/10/2005, a copy of the Ruling in Embu HCC Misc. Application No. 47 of 2007, a copy of a letter from the County Council of Mbeere to the District Physical Planning Officer dated 16/12/2005, a copy of the Judgement in ELC Misc. Application No. 31 of 2014, a copy of an official search for land parcel No. Evurore/Evurore/1067 dated 23/09/2014 and MCC Part Development Plan 1/1/47 dated 16/12/2005. 7. By way of a response and opposition to the Petition, the 1st Respondent, Fredrick Njuguna Njagi filed a replying affidavit dated 18/09/2025. He deposed that he was the registered owner of land parcel Evurore/Evurore/1067 now subdivided as indicated by the Petitioners, and that the land was neither public land nor reserved for Ishiara Secondary School. He contended that its registration in the name of Embu County Council was illegal. He averred that the land was purchased by his grandfather, the late Njuguna Mavevu, from the Mururi clan using two heifers, passed to his father Njagi Njuguna, and eventually given to him. He further stated that the Embu County Council was alleging that it got the suit land from their Nyonga clan, however the said clan denied ever giving the land to Embu County Council. 8. He deposed that despite the land being registered in the name of Embu County Council, he remained in possession and use of the land and had been pursuing its recovery since 1975. He filed an objection before the Adjudication Officer which was dismissed, an appeal to the Minister (Appeal No. 109 of 1984), and later Meru HCCC No. 11 of 1992 against the Embu County Council, which was transferred to Embu as HCCC No. 54 of 1997. He stated that Mbeere County Council made an application to be joined in HCCC No. 54 of 1997 which was allowed but they failed to file any pleadings. The matter was later withdrawn by consent after the parties agreed to settle it out of court, with each party bearing its own costs. He averred that the Embu County Council subsequently indicated that it had no claim over his land and agreed to transfer it to him. That they obtained the Land Control Board consent to transfer the land to him and executed transfer documents in his favour upon advice from the Commissioner of Lands. 9. He further stated that before he could process the title in his name, Mbeere County Council lodged a caution and filed Siakago Civil Case No. 38 of 2005 against him and his father, alleging that they had trespassed on the land. The suit was later transferred to Embu through Misc. Application No. 47 of 2007. He deposed that the Mbeere County Council failed to prosecute the suit, leading to its dismissal for want of prosecution on 13/10/2014 upon his application. Following the dismissal, he obtained court orders on 22/10/2015 lifting the caution and compelling registration of the land in his favour. Consequently, he was registered as proprietor of the suit land on 13/11/2015. 10. He stated that he thereafter subdivided the land into several parcels, including Evurore/Evurore/3073, on which Ishiara Police Station was allegedly constructed without his authority or consent. He denied that he fraudulently acquired title to the suit land and maintained that his registration was lawful, having been effected pursuant to the court order dated 22/10/2015 has neither been set aside nor revoked to date. 11. He denied violating the petitioners' constitutional rights and maintained that he lawfully acquired the land. 12. He further asserted that the land belonged to him and had merely been irregularly registered in the name of Embu County Council, and that Mbeere County Council had no authority to allocate it to the police station. 1. He stated that the present claim is an afterthought, particularly because he has already sold several resultant subdivisions to third parties not party to the proceedings. 2. He further stated that the Petitioners have not produced evidence demonstrating that parcel 1067 was public land, apart from the green card showing registration in the name of Embu County Council, which he maintained was irregular and was voluntarily transferred back to him. He averred that the proper course would be for the Petitioners to negotiate compensation with him for their use of his land without his authority. He therefore urged that the petition be dismissed with costs. 6. Bottom of Form 7. He annexed to the Replying Affidavit, a letter dated 12/03/1986 by the clan members of Nyonga Clan, a consent and order dated 31/01/2005, letters by the Embu County Council dated 20/04/2004 and 21/03/2005, minutes of the Embu County Council, an application for consent to transfer land, executed transfer forms and a letter dated 25/10/2005, a copy of an application dated 13/05/2014 and a court order, a court order dated 22/10/2015, the green card for land parcel 1067 and an application dated 03/12/2024. 8. The 4th Respondent in response and opposition to the Petition filed a replying affidavit that is undated but filed on 16/08/2022. He deposed that the Petition does not disclose any constitutional rights violated by him against the Petitioners. He averred that he is the registered owner and absolute proprietor of land parcel No. Evurore/Evurore/2994, which he has extensively developed by constructing a storey rental houses as shown in annexed photographs. He deponed that he purchased the land from the 1st Respondent on 04/01/2017 for Kshs. 1 million, having obtained it free from any encumbrances, and was granted vacant possession after paying the purchase price. He stated that he was not a party to Embu Misc. Application No. 47 of 2007 or any prior proceedings concerning the mother title. 9. He further stated that due process was followed during the subdivision, transfer, and registration of the land, which was already subdivided at the time he purchased it. He distinguished his parcel from land parcel No. Evurore/Evurore/3073 occupied by Ishiara Police Station, stating there was no connection between the two. He argued that the burden is on the Petitioners to prove any alleged violation of rights, which has not been discharged or even stated in the Petition. He contended that the Petition lacks merit, discloses no cause of action against him, and amounts to an abuse of the court process. He therefore prayed that it be dismissed with costs. He annexed a copy of the title deed to land parcel No. 2994 and photographs showing developments he has made on the land. 10. The parties agreed to canvass the Petition by way of written submissions. The record shows that as of the date of this Judgement, only the 1st and 4th Respondents had filed their submissions. The submissions are dated 07/04/2026 and filed through the firm of Muthoni Ndeke & Company Advocates. 11. The 1st and 4th Respondents submitted that the Petition is without merit. They maintained that Land Parcel No. Evurore/Evurore/1067 was never public land under Article 62 of the Constitution. In their view, the Petitioners have not shown any lawful process by which the land became public land as there is no evidence of compulsory acquisition, no gazette notice setting the land apart for a public purpose and no adjudication record vesting the land in the County Council and that there was no instrument of surrender by any private owner. They maintained that the land has a private root of ownership traced from the 1st Respondent’s grandfather, later acknowledged by the County Council, which obtained Land Control Board consent and executed transfer documents in his favour. 12. They emphasized that the 1st Respondent was registered as proprietor on 13/11/2015 pursuant to a valid court order in Misc Application No. 47 of 2007, which has never been set aside. The land was subsequently subdivided and transferred to third parties, including the 4th Respondent, who lawfully purchased parcel Evurore/Evurore/2994 and developed it. On whether the Petitioners had met the threshold for cancellation of title, they relied on **Section 26 of the Land Registration Act**, and argued that the Petitioners had not pleaded or proved fraud, misrepresentation, or illegality. They cited the case ofArthi Highway Developers Ltd v West End Butchery Ltd& 6 others to stress that title cannot be impeached without clear proof of fraud or illegality. They invoked Article 40 of the Constitution, which protects the right to property, and argued that cancelling their titles without proof of unlawful acquisition would amount to unconstitutional deprivation. They therefore urged the Court to dismiss the Petition with costs. 13. Having considered the Petition, the responses made to it and the submissions on record, I find that the issues for determination are: 14. Whether the Petitioners have established violation of their rights under Articles 40, 47,50 and 62 of the Constitution; 15. Whether the 1st petitioner is the rightful and beneficial owner of all that parcel of land measuring 1.6Ha allocated vide part development plan dated 12/08/2008 by the then Mbeere County Council. 16. Whether the resultant titles of land parcel 1067 should be cancelled and land parcel 1067 restored to public land. 17. Whether the orders of Hon. F Muchemi dated 22/10/2015 should be reviewed and or set aside. 18. Whether an order of permanent injunction should issue against the 1st -5th Respondents. 19. On the first issue, the evidence on record shows that the first registration of Land Parcel No. Evurore/Evurore/1067 was effected on 07/05/1987 in the name of the Embu County Council. The Petitioners rely on this registration as proof that the suit land was public land. The 1st Respondent's case on his part is that the suit land originally belonged to his family, having been passed down from his grandfather to his father and eventually to him. He contended that during the adjudication and demarcation process, the land was erroneously or fraudulently registered in the name of the Embu County Council. In pursuit of his claim, he instituted Embu HCCC No. 54 of 1997 against the Embu County Council seeking recovery of the suit land. 20. The evidence produced demonstrates that the Embu County Council subsequently resolved to settle the dispute out of court. The minutes of the Council meeting held on 09/03/2004 show that the Council resolved not to contest the 1st Respondent's claim on the basis that it had no interest in the suit land, the same being within the jurisdiction of the then Mbeere County Council. The Council further expressed the view that if any claim existed over the land, the same could be pursued separately by the Mbeere County Council. 21. Pursuant to that resolution, the parties recorded a consent dated 30/04/2004 in HCCC No. 54 of 1997. The 1st Respondent further produced an application for consent of the Land Control Board duly executed by the Embu County Council, transfer documents signed by the Council in his favour, and a letter from the Commissioner of Lands dated 21/03/2005 confirming that the Embu County Council had no claim over the suit land. The evidence therefore demonstrates that the registered proprietor at the time had voluntarily agreed to transfer the land to the 1st Respondent and had taken concrete steps towards effecting that transfer. 22. However, before the transfer could be completed, the Mbeere County Council lodged a caution against the title and instituted PMCC No. 38 of 2005 seeking injunctive orders restraining the 1st Respondent and another from interfering with the suit property. That suit was subsequently transferred to the High Court. The record further shows that the 1st Respondent filed an application dated 13/05/2014 seeking dismissal of the suit for want of prosecution. The application was allowed and the suit was dismissed. 23. Thereafter, in Embu High Court Miscellaneous Application No. 47 of 2007, the 1st Respondent sought orders for removal of the caution registered against the suit land, cancellation of the registration in favour of the Embu County Council, registration of himself as proprietor, and dispensation with the attendance of the Embu County Council for purposes of effecting the transfer. The court in a ruling dated 22/10/2015 allowed the application and granted the orders sought. Significantly, the court found that there was no subsisting suit between the 1st Respondent and either the Embu County Council or the Mbeere County Council that would justify the continued existence of the caution. Following the issuance of those orders, the caution was removed, the registration in favour of the Embu County Council was cancelled, and the 1st Respondent was registered as proprietor of Land Parcel No. Evurore/Evurore/1067 on 13/11/2015. A title deed was subsequently issued to him on 18/11/2015. 24. The Petitioners have not placed before this Court any evidence showing that the orders issued in Embu Miscellaneous Application No. 47 of 2007 were appealed against, reviewed, set aside, or otherwise vacated. Those orders therefore remain valid and binding. Equally, no evidence was tendered to show that the registration of the 1st Respondent was procured through fraud, misrepresentation, or concealment of material facts in those proceedings. 25. The Petitioners have further failed to demonstrate that parcel No. Evurore/Evurore/1067 constituted public land within the meaning of Article 62 of the Constitution. Apart from the fact that the land was registered in the name of the Embu County Council, no evidence was tendered to show the process through which the land became public land and more importantly the Embu County Council voluntarily relinquished their ownership of the land and transferred it to the 1st Respondent. 26. Similarly, the Petitioners failed to demonstrate violation of Articles 40, 47 and 50 of the Constitution. There is no evidence that the Petitioners were arbitrarily deprived of the suit land as protected under Article 40 of the Constitution. No evidence was adduced to show that any administrative action affecting the Petitioners was undertaken unfairly, unlawfully or in violation of Article 47. Likewise, there is no evidence that the Petitioners were denied an opportunity to be heard in any proceedings relating to the suit property so as to establish a violation of Article 50. The record instead demonstrates that the dispute over the suit land was litigated through various proceedings in which the parties had the opportunity to ventilate their respective claims. Accordingly, I find that the Petitioners have failed to establish any violation of their rights under Articles 40, 47, 50 and 62 of the Constitution. 27. On the second issue, the Petitioners contend that the former Mbeere County Council allocated 1.6 hectares out of parcel No. Evurore/Evurore/1067 for the construction of Ishiara Police Station and that the 1st Petitioner is therefore the rightful and beneficial owner thereof. However, no evidence was produced demonstrating that the Mbeere County Council held a valid and indefeasible title to the land capable of conferring proprietary rights upon the 1st Petitioner. 28. On whether the resultant titles of land parcel No. Evurore/Evurore/1067 should be cancelled and the land restored to public land, I find that the Petitioners failed to demonstrate that the registration of the 1st Respondent as proprietor of Land Parcel No. Evurore/Evurore/1067 was unlawful as it was effected pursuant to a lawful court order that was never challenged. Further, the Petitioners did not plead or prove fraud, misrepresentation, illegality, procedural impropriety or corrupt scheme on the part of the 1st Respondents so as to warrant the cancellation of his title to the suit land and the subsequent sub divisions of the land under Section 26 of the Land Registration Act. Consequently, there is no basis for cancellation of the titles. 29. On whether the orders of Hon. F. Muchemi dated 22/10/2015 should be reviewed and/or set aside, the Petitioners seek the review and setting aside of the ruling delivered on 22/10/2015 in Embu Miscellaneous Application No. 47 of 2007 lifting the caution by the Mbeere County Council and the orders directing the cancellation of title to the Embu County Council. However, no grounds recognized in law for review have been established. There is no demonstration of discovery of new and important evidence, error apparent on the face of the record or any other sufficient reason warranting review as provided underOrder 45 Rule 1 of the Civil Procedure Rules, 2010. Furthermore, the orders have remained in force for several years and there is no evidence that they were challenged through an appeal. In the circumstances, the prayer for review and setting aside of the ruling dated 22/10/2015 is without merit and is declined. 30. Having found that the Petitioners have failed to establish ownership rights over the suit property, that the 1st Respondent lawfully acquired title thereto and that the resultant titles have not been shown to be unlawful, there is no basis upon which a permanent injunction can issue against the Respondents. The Petitioners have failed to establish a legal right requiring protection by way of injunctive relief. 31. The upshot is that the Petition dated 28/06/2022 lacks merit. The same is hereby dismissed with costs to the 1st and 4th Respondents. DATED, DELIVERED AND SIGNED AT EMBU THIS 04TH DAY OF JUNE, 2026. HON. E.C CHERONO ELC JUDGE, EMBU In the presence of; 1 Mr. Kiongo for the Petitioners 2. M/S Muthoni Ndege for the 1st & 4th Respondents 3. 2nd & 3rd Respondents/Advocate-absent 4. Ruth C/A