Murutu v Mwangi (Suing as the Administrator of the Estate of Francis Mwangi Ndungu) & 4 others (Environment and Land Case 48 of 2020) [2026] KEELC 4070 (KLR) (19 June 2026) (Ruling)

Murutu v Mwangi (Suing as the Administrator of the Estate of Francis Mwangi Ndungu) & 4 others (Environment and Land Case 48 of 2020) [2026] KEELC 4070 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEELC 4070 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 48 of 2020 TW Murigi, J June 19, 2026 Between Joseph Wamalwa Murutu Plaintiff and Robert Maina Mwangi (Suing as the Administrator of the Estate of Francis Mwangi Ndungu) 1st Defendant Nairobi City County 2nd Defendant Director Of Survey 3rd Defendant Chief Land Registrar 4th Defendant The Attorney General 5th Defendant Ruling 1.By a Notice of Motion dated 30th March 2026, brought under Order 40 Rule 1 of the Civil Procedure Rules and Section 29 of the Environment and Land Act, the 1st Defendant/ Plaintiff in the Counterclaim seeks the following orders:a.Spent.b.Spent.c.That the Plaintiff (in the Counterclaim), his agents and/or servants be allowed to demolish, clear and remove all permanent and temporary structures erected on the suit property, to wit, L.R No. 11344/2403 and thereafter fence the property.d.That the OCPD Buru Buru Police Division and/or the OCS Mowlem Police Station do provide adequate security and police assistance in order to ensure that law and order is maintained during the exercise contemplated in Order 3 above.e.That the cost of this application be provided for. 2.The application is based on the grounds appearing on its face together with the supporting affidavit of Robert Maina Mwangi, sworn on even date. The Plaintiff In Counterclaim /applicant’s Case 3.The Applicant averred that on 13th February 2026, the Court delivered judgment in his favour and ordered the 1st Defendant/Respondent in the Counterclaim to surrender vacant possession of the suit property to him. 4.He stated that the Respondent refused to voluntarily vacate the premises despite being notified to do so, and was unlawfully carrying out earthworks and constructing new structures on the suit property, as evidenced by a letter dated 2nd March 2026 and photographs of the property. 5.He further asserted that the Respondent, along with other parties acting under him, was constructing new structures in an attempt to hinder and complicate their removal from the suit premises. 6.He argued that it was in the interest of justice for the orders sought to be granted, to protect the authority of the Court and prevent irreparable loss and damage to the Plaintiff in the Counterclaim. The 1St Defendant In Counterclaim/ Respondent’s Case 7.The Respondent filed a replying affidavit sworn on 6th May 2026, in opposition to the application. He admitted that judgment had been entered and a decree issued in favour of the Plaintiff in the Counterclaim on 13th February 2026. 8.He vehemently denied refusing to vacate the suit property. He stated that M/S Njuru & Company Advocates served the order and pleadings filed under a certificate of urgency via email on 15th April 2026, which he received under protest on 16th April 2026, as he had already vacated the property some time earlier. He argued that the correspondence from M/S Njuru & Company Advocates demonstrated a lack of awareness of his vacating the suit property, as this had not been communicated or confirmed before the application was filed, rendering the application misconceived and mischievous. 9.He vehemently denied that he or any parties acting under him were carrying out earthworks or constructing new structures on the suit premises, asserting that he was not aware of it and challenged the Respondent to provide strict proof. He averred that he had long vacated the suit property and had duly demolished the church building, along with the signage on the perimeter wall. 10.He stated that the Applicant had not proved the allegations made in the supporting affidavit, thereby justifying the dismissal of the application as frivolous. 11.In conclusion, he urged the Court to dismiss the application with costs. Analysis And Determination 12.Having considered the application and the respective affidavits, the only issue for determination is whether the Applicant is entitled to the orders sought. 13.It is not in dispute that judgment was entered in favour of the Applicant on 13th February 2026, and a decree was issued accordingly. The Applicant alleges that the Respondent has refused to comply with the order and has, instead, continued carrying out earthworks and erecting new structures on the suit property in deliberate defiance of the court's judgment. To support this claim, the Applicant presented photographs of the suit property showing ongoing construction activity, as well as a letter to the Respondent dated 2nd March 2026, demanding that he vacate the suit property. 14.The 1st Defendant in the Counterclaim denied these allegations. He states that he had long relinquished vacant possession of the suit property before filing this application and had demolished the existing structure, a church building, along with the signage on the perimeter wall. He further states that the Applicant failed to verify or enquire into the status of the suit property before filing the application, rendering the application misconceived. In support of his position, he has produced photographs of the demolished structures. 15.The Applicant exhibited showing the existence of structures on the suit property. The photographs lend credence to the contention that there are developments presently standing on the land. However, Photographs alone do not establish who erected the structures. 16.The Defendant maintains that he vacated the suit property and denied involvement in the alleged construction. 17.The burden lay on the Applicant to demonstrate that the structures complained of were erected by the Respondent. Other than the photographs, no evidence was placed before the Court to establish such a connection. 18.The Respondent produced photographs to demonstrate that the existing church building has been demolished and that vacant possession has been surrendered. However, the Respondent admitted in the email dated 16th April 2026 that he had not yet demolished the perimeter wall. Based on the foregoing, it is clear that the Respondent has not demolished the perimeter wall on the suit property. 19.The upshot of the foregoing, the application dated 30th March 2026 is hereby allowed in the following terms:a.The 1st Defendant in the Counterclaim/Respondent, his agents and/or servants shall, within 14 days, demolish the perimeter wall standing on the suit property.b.In default of prayer (a) above, the Applicant will be at liberty to demolish and remove the wall at the Respondent’s expense.c.The OCPD Buru Buru Police Division and/or the OCS Mowlem Police Station are hereby directed to provide adequate security and police assistance to ensure that law and order is maintained during the execution of these orders.d.The demolition of the other structures on the suit property is declined for lack of evidence.e.Each party to bear its own costs. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 19TH DAY OF JUNE, 2026.…………………………………….HON. T. MURIGIJUDGEIn The Presence Of:Ms Maina holding brief for Njuru for the ApplicantKhaduli for the RespondentVena Court - Assistant