https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3616

Thuita v Gitonga & another (Environment and Land Case 442 of 2014) [2026] KEELC 3616 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3616 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Case 442 of 2014 EK Makori, J June 10, 2026 Between Joseph Nderitu Thuita Plaintiff and Benard Kimathi Gitonga 1st Defendant Joyce Wanjiru Nduhiu 2nd Defendant Ruling 1.There are two applications for determination on the record. The first was filed by the Plaintiff under Notice of Motion dated 10th June 2026 and seeks the following orders:a.That this honorable court be pleased to issue eviction orders against the 1st Defendant/Respondent Benard Kimathi Gitonga, who has adamantly refused to give vacant possession in accordance with this court's orders dated 26/05/2025.b.That this Honorable court be pleased to order the OCS Ndugamano police station to enforce the eviction order.c.That this Honorable Court be pleased to order the Nyeri County Land Registrar to cancel LR Thegenge/kihora/761 and 762, and to have the land revert to its prior status as LR Thegenge/Kihora/128 in the names of Joseph Nderitu Thuitа and Joyce Wanjiru Nduhiu as joint owners.d.That the cost of this application be in the cause. 2.The Application is supported by the Plaintiff/Applicant's affidavit, in which the Plaintiff/Applicant deposed that this matter was heard and decided in his favor, resulting in the cancellation of LRs Thegenge/Kihora/761 and 762, and that the said land is to revert to its prior position as LR Thegenge/Kihora/128 in the names of Joseph Nderitu Thuita, himself, and Joycе Wanjiru Nduhiu as joint owners. 3.The said Decree was duly served upon the 1st Respondent through the OCS Ndugamano police station and the OCPD Tetu East. However, the 1st Respondent has adamantly refused to vacate the suit land and has vowed not to comply with the court order, thereby necessitating the filing of this application. 4.The Applicant deposed that he was advised to seek redress from the court by filing for eviction orders, and added that the 1st Respondent is violent and that the police should provide security. 5.The Applicant deposed that this matter has dragged on for many years and that litigation should now come to an end, and stated that it is in the best interests of justice for the Court to grant the orders sought. The 1st Defendant/Respondent’s Grounds of Opposition 6.The 1st Defendant/Respondent filed Grounds of Opposition dated 25th June 2025, opposing the application dated 10th June on the following grounds:a.The application is incurable, defective, unmeritorious, and an abuse of the court process.b.There is no proof of service of the purported order in question on any of the said respondents.c.the Plaintiff/applicant lacks locus standi to institute the instant application on the ground that he substituted the plaintiff and not the actual plaintiff.d.Per the court's decree, Thegenge / Kihora /128 was to be registered in the names of Muchemi Mutune, not Joseph Wanjiru Nduhiu and the husband of the 2nd respondent.e.Thegenge / kihora /128 is either fully or partially registered in the names of the deceased proprietor.f.There is a need to review and or interpolate the judgment delivered on 15th May 2025.g.The application presented will be prejudicial to the 1st respondent. The 2nd Respondent’s replying affidavit 7.The 2nd Respondent swore an affidavit in response to the instant application on October 22, 2025. She deposed that the Plaintiff/Applicant, Joseph Nderitu Thuita, lacks the requisite locus standi to bring this application. The original Plaintiff, Muchemi Mutune (now deceased), was the registered proprietor of LR. Thegenge/Kihora/128, with herself as a joint owner. The Applicant is a substituted party, not the original Plaintiff, and there is no evidence of his legal authority to act as the administrator or beneficiary of the estate of the deceased Muchemi Mutune. 8.Thus, according to her, the proprietorship of LR. Thegenge/Kihora/128, as per the court’s judgment, remains in the names of Muchemi Mutune (deceased) and herself. The Applicant’s attempt to include himself as a joint owner in place of the deceased is irregular and contrary to the court’s judgment, as no succession proceedings or register rectification have been undertaken to reflect such a change. This renders the Applicant’s proprietorship irregular and unenforceable at this stage. 9.The 2nd Respondent deposed that the Applicant’s request for the Nyeri County Land Registrar to cancel LR. Thegenge/Kihora/761 and 762 and revert to LR. Thegenge/Kihora/128 in the names of himself and her is misleading, as the Applicant is not a registered proprietor. The register still reflects Muchemi Mutune (deceased) and herself as joint owners, and any attempt to alter the register without succession proceedings is unlawful. 10.The 2nd Respondent contends that the Applicant’s claim that the 1st Respondent has refused to vacate the suit land does not negate her rights as a co-owner. Any eviction or enforcement orders would require her involvement as a registered proprietor, which the Applicant has failed to address. 11.Further, the Respondent deposed that the judgment delivered on May 15, 2025, should be reviewed or interpolated to clarify the status of proprietorship, given the deceased status of Muchemi Mutune and the Applicant’s lack of legal standing to enforce the judgment. 12.She accused the Applicant of attempting to unjustly take over the share of the deceased owner without the involvement of the beneficiaries of the deceased and prayed that the application be dismissed with costs. The 1st Defendant/Respondent’s submissions 13.Counsel for the 1st Defendant/Respondent submitted a response to the Plaintiff’s application dated 10th June 2025, stating that the entire application depends on the order issued on 26/05/2025, yet the Applicant has not attached the order, the extracted decree, or an affidavit of service proving that it was served on the 1st Respondent. 14.It is their contention that without these basic documents before the court, there is nothing for this Honorable Court to enforce. Applications that fail to annex the very order they seek to enforce have been dismissed outright, relying on the cases of Majon v Masibo & 8 others [2025] KEHC 3497 (KLR) and Waswala v Ejilo & another [2022] KEELC 2740 (KLR), the latter still binding. 15.It is also noted that Prayer 3 of the application simply repeats the title-cancellation order that the Applicant claims was already issued on 26/05/2025. Asking the court to issue the same order twice is unnecessary and amounts to an abuse of process. Further, the Applicant sought to evict the 2nd Respondent in their grounds for the application, while the prayers sought to evict the 1st Respondent instead. It is their submission that the application isn’t clear. 16.Third, it is submitted that the instant Application is not brought under any provision of the law and does not cite any Order, Rule, Section, or statute under which it is brought, and that this is sufficient for it to be struck out, as they cited the decision in Republic v Municipal Council of Eldoret Ex-parte John Kipkosgei Krui & 22 Others [2011] KEHC 1745 (KLR). 17.The 1st Respondent also highlighted that the serious claim that the 1st Respondent is “a violent person,” as set out in paragraph 6 of the supporting affidavit, is made without any supporting evidence. They submit that Courts do not order police to assist in evictions based on bare assertions alone, as recently affirmed in Rama & 27 others v Police & 2 others [2025] KEELC 5898 (KLR), where the Court emphasized that police involvement in eviction matters requires proper justification and credible evidence. Counsel concluded that the application is without merit and ought to be dismissed. The 1st Defendant’s application dated 18th October 2025 18.The 1st Defendant also filed an application dated October 18, 2025, for determination before this Court, seeking the following orders:a.Spent.b.The firm of Ms. Muthoni Muhoro advocates be allowed to come on record formally for the 1st defendant/applicant herein.c.This Honorable Court be pleased to review the judgment and decree issued on or about May 15, 2025, on the grounds and submissions to be adduced by the 1st defendant/applicant at the hearing and determination of this applicationd.At the hearing of the application, the Honorable Court be pleased to review the said judgment with a view to setting it aside and ordering a retrial of the suit to be heard on the merits.e.Costs of the application be awarded to the 1st defendant/applicant.f.This Honorable Court does make such further orders as it may deem fit in the interests of justice. 19.The Application is supported by the Applicant's affidavit, in which the Applicant deposed that one Muchemi Mutene had instituted the claim by a plaint dated 11th January 2011, in which he sued the Applicant as well as the 2nd defendant/respondent. However, the said Muchemi Mutene passed away on the 17th October 2013, and after his demise, Joseph Nderitu Thuita took out letters of administration ad litem in the estate of the late Muchemi Mutune, issued on the 20th June 2014. 20.The Applicant contends that at the time of delivery of the judgment, Joseph Nderitu Thuita was the actual plaintiff, not suing on behalf of the estate of Muchemi Mutene (Deceased). 21.From the reading of the judgment and decree, the court's decision is unclear because Joseph Nderitu Thuita was not the initial plaintiff but a substituted plaintiff upon the demise of Muchemi Mutune mid-suit. 22.They contend that the application is made without undue delay and that the prayers sought are in no way prejudicial to the plaintiff/respondent, the estate of the late Muchemi Mutune (Deceased), and the 2nd defendant/respondent. The 2nd Defendant/Respondent’s replying affidavit. 23.The 2nd Defendant/Respondent filed an affidavit in response to the application dated October 18, 2025, and admitted that the suit was initially instituted by Muchemi Mutune, who later passed away on October 17, 2013. 24.She deposed that she supports the application for review, but only to the extent that there is an error apparent on the face of the record that necessitates correction, because the substituted plaintiff is meant to act on behalf of the estate of the Deceased Plaintiff, not in his own capacity or as a beneficiary of the deceased’s estate. 25.Specifically, she pointed out that paragraph 24 of the judgment directed that the suit property reverts to the names of the substituted plaintiff and herself, rather than to the deceased plaintiff, stating that no person can deal with the estate of a deceased person except through letters of administration or a confirmed grant. 26.That devolution of this title must occur through succession proceedings, and thus this constitutes an error on the face of the record that ought to be corrected, but she denied any need for a retrial. The 1st Defendant/Applicant’s submissions 27.Counsel for the Applicant filed submissions in support of the application dated 10th October 2025, and relied on Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules on review, as well as the decision in Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Limited [2014] eKLR, and submitted that this Court has the power to review. 28.It is submitted that despite his ad litem position, the substituted plaintiff was decreed to have the suit property revert to his name rather than to the deceased plaintiff, and that this directive bypasses mandatory procedures for dealing with deceased estates and title transmission, which can only be interpreted as intermeddling. On this point, they relied on the case of David & 2 ofhers v Bakaya [2025] KEHC 12790 (KLR), which holds that errors apparent must be prima facie visible without extensive examination; here, the substitution contravenes the limited nature of the 2014 order and the absence of succession authority. 29.Secondly, the Applicant submits that the judgment nullifies the 2010 Tribunal award while partially enforcing outcomes from prior tribunals, creating ambiguity and unenforceability, which they submit constitutes any other sufficient reason for review. On this point, they relied on the authorities of Kung'u v Kung'u (2025) KEELC 1285 (KLR) and Mwangi & another v Muiga (2025) KEELC 6818 (KLR). 30.It is also submitted that the application was filed within a reasonable time after judgment in accordance with David & 2 others v Bakaya[2025] KEHC 12790 (KLR). 31.In response to the 2nd Defendant’s support for a limited review but opposition to a retrial, the Applicant submits that the limited review overlooks ambiguities, including partial tribunal enforcement and the 2nd tribunal-based registration. A retrial would resolve these without abuse, as the merits remain unaddressed. He adds that the Applicant has occupied LR 761 since 199 and argues that a retrial would promote justice under Article 40 on property rights, praying that his application be allowed. The 2nd Respondent’s written submissions 32.Counsel for the 2nd Respondent submitted that review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules is permitted only for limited reasons and relied on the authority of Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR, in which the Supreme Court clarified that review is not a substitute for appeal and must be confined to correcting clear errors or considering new evidence, rather than reopening the merits of the case or permitting re-litigation. 33.It is her submission that in the present matter, a patent error appears on the face of the record in Paragraph 24 of the judgment and the corresponding decree, which substituted Joseph Nderitu Thuita for the late Muchemi Mutune as joint owner of LR. Thegenge/Kihora/128, even though Thuita was substituted merely as the legal representative ad litem under Order 24 Rule 4 of the Civil Procedure Rules. That substitution did not confer proprietary rights or make him a successor in title to the deceased’s estate. 34.The 2nd Defendant notes that the application was brought without undue delay, thereby satisfying the requirement under Order 45 Rule 1(1). Correcting this error would promote the expeditious and just determination of the dispute in line with the overriding objective enshrined in Sections 1A and 1B of the Civil Procedure Act, while avoiding unnecessary multiplicity of proceedings. 35.However, she opposes a retrial, arguing that the Applicant’s argument suggests the Tribunal proceedings should be either fully implemented or entirely disregarded, which attacks the merits of the court’s decision rather than identifying an error apparent on the record. She noted that the judgment, at paragraphs 23 and 24, expressly nullified the Tribunal’s award for lack of jurisdiction under Section 3 of the repealed Land Disputes Tribunals Act. 36.The 2nd Respondent submits that review cannot be used to introduce fresh arguments, new evidence, or challenges to the court’s substantive findings. The Applicant’s assertion that the decision is “not clear” remains vague and unsubstantiated, falling short of the threshold set by Order 45 Rule 1. She thus supports review only to the extent that the Decree should read that the suit land reverts to the estate of the deceased plaintiff and her, not the substituted plaintiff herein. Analysis and Determination 37.The issues I frame for the determination of this Court are whether the Court should grant the Plaintiff an order of eviction of the Defendants herein from the suit property; whether the Court should grant an order of review as prayed by the 1st Defendant; whether the reliefs sought by the parties are tenable; and costs. Should the Court grant the Plaintiff an order of eviction of the Defendants herein from the suit property? 38.The Plaintiff has prayed for an order of eviction against the 1st Defendant/Respondent Benard Kimathi Gitonga, who has adamantly refused to give vacant possession in accordance with the orders of this court issued on May 26, 2025. 39.This Court entered judgment on May 15, 2025, and decreed the following orders:“In the premises, I am persuaded that the Plaintiff has proved his claim on a balance of probabilities and I hereby allow the same in terms of prayers ‘a’ and ‘b’ of the Plaint dated 11th January, 2011.” 40.Although the Plaintiff has not produced a copy of the decree with his application, a reading of the prayers sought in the Plaint dated January 11, 2011, reveals that these were the prayers sought:a.The registration of land No. L.R Thegenge/Kihora/761 and 762 are canceled, and the land reverts to its prior status as L.R Thegenge/Kihora/128, in the names of the Plaintiff and the 2nd Defendant as joint owners.b.A declaration that the Land Dispute Tribunal lacked jurisdiction to entertain a matter involving an issue of title deed. 41.It must be noted that the Plaintiff who instituted this suit was Muchemi Mutune (Deceased), and the Plaintiff in these prayers refers to him. The substituted Plaintiff herein seeks an order of eviction of the 1st Defendant from the suit land, and the 1st Defendant has not denied that he is still on the suit land, a fact he has admitted in his written submissions. 42.It is my view that, now that the suit land is no longer registered in the 1st Defendant’s name, since the title L.R Thegenge/Kihora/761 was canceled to revert to its mother title, the sought order of eviction will only allow this Court’s judgment to be fully realized as intended. It was held by the Court in In Machira T/A Machira & Co Advocates v East African Standard (No 2) [2002] KLR 63 that:“……The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged…” 43.Similarly, it was held in Republic v Town Clerk of Webuye County Council & another [2014] KEHC 7207 (KLR) that:“A decree holder’s right to enjoy the fruits of his judgment must not be thwarted. When faced with such a scenario the court should adopt an interpretation that favours enforcement and as far as possible secures accrued rights. My reasoning is underpinned by the values of the Constitution particularized in Article 10, the obligation of the court to do justice to the parties and to do so without delay under Article 159 (2) (a) & (b), and the Applicant’s right of access to justice protected under Article 48 of the Constitution.” 44.In my view, issuing an eviction order against the 1st Defendant herein will serve to advance the Decree issued by this Court, and the Court may proceed to issue this supplementary order to facilitate access to justice for the successful litigants, namely the Plaintiff and the 2nd Defendant herein. The Plaintiff should be directed to obtain a copy of both the Decree and this eviction order, and police oversight may be authorized to enforce the Court's orders. 45.As for the Plaintiff’s prayer that the court order the Nyeri County Land Registrar to cancel L.R Thegenge/Kihora/761 and 762 and that the land revert to its prior position as L.R Thegenge/Kihora/128 in the names of Joseph Nderitu Thuita and Joyce Wanjiru Nduhiu as joint owners, this order cannot be granted, as Joseph Nderitu Thuita was never the registered owner of the mother suit parcel, and this was a mischievous attempt by the Plaintiff to have the suit land registered in his name. The decree was already granted as prayed for by the Plaintiff, that the registration of land no. L.R Thegenge/Kihora/761 & 762 be canceled. The land reverts to its prior position as L.R Thegenge/Kihora/128, in the names of the Plaintiff and the 2nd Defendant as joint owners, the Plaintiff in this case referring to Muchemi Mutune (Deceased) and not Joseph Nderitu Thuita, the substituted plaintiff who only acts on behalf of the Deceased’s Estate. Thus, the Plaintiff’s application dated 10th June 2025 should only partially succeed, insofar as an order for eviction is granted. 2. Should the Court grant an order of review as prayed by the 1st Defendant? 46.The 1st Defendant has sought an order for review of this Court’s judgment and decree, asserting that there is an error on the face of the record, and further seeks a retrial of the suit. 47.The statutory provisions that govern orders of review are Section 80 of the Civil Procedure Act, Cap 21, and Order 45 of the Civil Procedure Rules, 2010. Section 80 of the Act provides that:“Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” 48.Order 45, Rule 1 of the Civil Procedure Rules (2010) provides that:“Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” 49.The elements required for orders of review have been extensively articulated by the Courts. In the case of Francis Njoroge v Stephen Maina Kamore [2018] eKLR, the Court held that:“Therefore, Order 45 of the Civil Procedure Rules, 2010 is very explicit that a court can only review its orders if the following grounds exist: -(a)There must be discovery of a new and important matter which, after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; or(b)There was a mistake or error apparent on the face of the record; or(c)There were other sufficient reasons, and(d)The application must have been made without undue delay.” 50.The requirements for review are therefore the discovery of a new and important matter that could not have been known at the time the decree or order was issued, a mistake or error apparent on the face of the record, or any other sufficient reason. The application should be made without undue delay. 51.In this case, the 1st Defendant argues. The 2nd Defendant supports the proposition that paragraph 24 of the judgment directed that the suit property revert to the name of the substituted plaintiff and herself, rather than the deceased plaintiff, stating that no person can deal with the estate of a deceased person except through letters of administration or a confirmed grant. 52.I note that this was never the Court's intention, as discussed above, because the said Joseph Nderitu Thuita was acting on behalf of the estate of Muchemi Mutune (Deceased), in whose name the suit land ought to revert to in joint ownership with the 2nd Defendant, not in the name of the substituted plaintiff. 53.As held in In Re Estate of Wambua (Deceased) (Succession Cause E054 of 2022) [2026] KEMC 118 (KLR) (19 May 2026) (Ruling):“There are several types of grants recognized under the Law of Succession Act. A limited grant ad litem is one such category, issued pursuant to Section 54 of the Law of Succession Act and Rule 14 of the Probate and Administration Rules. Such grants are temporary and specific in nature; they do not confer full powers of administration but are ordinarily issued for the limited purpose of enabling representation of the estate in pending proceedings.” 54.Therefore, the substituted plaintiff was acting on behalf of the deceased’s estate, not in his personal capacity. For avoidance of doubt or ambiguity, the review may be granted, and the Decree ought to read as follows:a.The registration of land no. L.R Thegenge/Kihora/761 & 762 be canceled and the land to revert to its prior position as L.R Thegenge/Kihora/128, in the names of the Muchemi Mutune(Deceased) and the 2nd Defendant as joint owners.b.A declaration that the Land Dispute Tribunal had no jurisdiction to entertain a matter touching on an issue of title deed. 55.As for the 1st Defendant’s prayer for a retrial, which raises the point that the Court partially implemented the decision of the Land Dispute Tribunal that it had declared had no jurisdiction, it is evident that this goes to the merits of the case and does not fall under any of the grounds for review. It is more suited to an appeal. In Benjoh Amalgamated Limited & Another v. Kenya Commercial Bank Limited & Another [2014] eKLR, which was relied upon by both the 1st and the 2nd Defendant in their submissions, the Court of Appeal quoted the decision of the Singapore Court of Appeal in Management Corporation Stratta Title Plan No.301 v Lee Tat Development Pte Ltd [2009] S GHC 234 as follows:“The general rule is that where a litigant seeks to reopen in a fresh action an issue which was previously raised and decided on the merits in an earlier action between the same parties, the public interest in the finality of litigation (“the finality principle”) outweighs the public interest in achieving justice between the parties (“the justice principle”) and therefore the doctrine of res judicata applies. In such cases, it is usually immaterial that the decision which gives rise to the estoppel is wrong because “a competent tribunal has jurisdiction to decide wrongly, as well as correctly, and if it makes a mistake its decision is binding unless corrected on appeal.” 56.It must be noted that two deciding bodies may reach the same decision without influencing each other at all. Thus, I am of the view that prayer no. 4 of the 1st Defendant’s application should not succeed.Disposal and the Reliefsi.Notice of Motion dated 10th June 2026, succeeds in this manner:a.An eviction order is hereby issued against the 1st Defendant/Respondent Benard Kimathi Gitonga, who has adamantly refused to give vacant possession in accordance with the orders of this court issued on 26th May 2025.b.A decree should be extracted and served on the 1st defendant, who should vacate the suit premises 90 days after servicec.Failure to comply with (a) above, forcible eviction to ensue with the assistance of the O.C.S. Ndugamano police station.d.No order as to costs.ii.Notice of motion dated October 18, 2025, succeeds to this extent:a.The firm of Ms. Muthoni Muhoro advocates is allowed to come on record formally for the 1st defendant/applicant herein.b.The registration of land no. L.R Thegenge/Kihora/761 and 762 are canceled, and the land reverts to its prior status as L.R Thegenge/Kihora/128, in the names of the Muchemi Mutune (Deceased) (and not the Plaintiff) and the 2nd Defendant as joint owners.c.A declaration that the Land Dispute Tribunal lacked jurisdiction to entertain a matter involving an issue of title deed.d.The other orders sought in the motion are declined.e.No order as to costs DATED, SIGNED, AND ELECTRONICALLY DELIVERED IN NYERI ON THE 10TH DAY OF JUNE, 2026.E. K. MAKORIJUDGEIn the presence of:Mr. Muchangi for the plaintiffMr. Wambugu for the 1st DefendantDennis: Court Assistant