https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4903

**REPUBLIC OF KENYA** **IN THE ENIVIRONMENT AND LAND COURT AT MACHAKOS** **ELC NO. E030 OF 2022** **JOSHUA KIOKO KITUNGU:::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF** **VERSUS** **JOSEPH MUITHYA MBUVI** **DAVID MUMO NZUKI** **JIMMY MULWA KILETU** **NZIOKA MAKAU** **NZAU KILETU** **MUTAVI UVYU** **MUMBUA KYENGO MANTHI** **MBITHI MULI T/A** *as* **NGALALYA SOCIETY::::::::::::::::::DEFENDANTS** **JUDGEMENT** The Plaintiff avers that at all material times relevant to this suit Land Parcel No. LR9775 comprising 130 Acres solely belonged to his father having bought shares from Mitaboni Farmers & Traders Ltd and which parcel of land was subdivided to his sons namely Daniel Mbatha Kitungu, Titus Mbuvi Kitungu, Joshua Kioko Kitungu and Ndululu Kitungu and whose value is approximately at 100 Million. That the Plaintiff and other beneficiaries of the late Mr. Kitungu have been in quiet possession of the suit land since 1970s, where they have been carrying out farming activities, grazing, quarrying and planting of trees on the same parcel of land. That the Plaintiff avers that the suit property has been litigated and has gone through the adjudication process up to the appeal stage and a ruling delivered in their favor. That the Defendants on diverse dates without any color of right, and/or consent from the Plaintiff or any of the other beneficiary trespassed onto the suit property and started laying claim and asserting proprietary interest over the suit property inspite them knowing that all the previous litigation and all suits between themselves and the Plaintiff predecessors were determined.There has been another suit being Civil Suit No. 176 of 1993 between Ngalalya Society (Plaintiff) and Daniel Kitungu Muthoka (Defendant) and which suit was dismissed for want of prosecution by Mwera. J on 22/5/1997.The Plaintiff prays for judgment against the Defendants jointly and severally for: - 1. An order of permanent injunction restraining the Defendants either by themselves, their servants, agents, workers or any other person claiming under them from entering, trespassing, moving into, seeking to occupy, alienating, encroaching, constructing and/or laying claim and in any other manner whatsoever from interfering with the plaintiff's rights of ownership, possession, occupation or use of the Parcel of Land Known as LR9775 comprising 130 Acres. 2. A declaration that the suit property being Parcel of Land known as L.R 9775 comprising 130 Acres belonged to the late Aron Kitungu Muthoka. 3. Costs and interest of this suit. 4. Any other prayer that this Honourable Court may deem fit to grant in the circumstances. The Defendants aver that the suit property known as L.R. 9775 belongs to the Ngalalya Society wherein the chairman Aaron Kitungu Mutoka (deceased) bought shares from Mitaboni farmers on behalf of the shadow members of Ng'alalya Society. That the Ng'alalya Society members contributed equal shares of Ksh. 100 and one cow on or about 1963. The Defendants further aver that the Plaintiff together with his brothers Timothy Ndululu(Deceased), Titus Mbuvi Kitung'u (Deceased) and Daniel Mbatha Kitung'u (deceased), who was sub chief then used his influence to frustrate the efforts to resolve the dispute and wants to grab the suit property. The Defendants aver that civil suit no. 176 of 1993 between Ng'alalya society and Daniel Kitung'u Muthoka(deceased) was not determined on merits but dismissed on technicalities and/or want for prosecution in which they were not parties therein. The Defendants herein purchased the suit property through Aaron Kitung'u Muthoka (deceased) who was the chairman of the Ng'alalya Society acting on behalf of the shadow members which comprised of 45 members. In the year 1963, the Defendants organized a group of 45 members T/A Ng'alalya Society and contributed ksh. 100 and one cow being the shares of all the members under the chairmanship of Aaron Kitung'u Muthoka(deceased). The Plaintiffs do not have overriding ownership rights over the suit property to the exclusion of the Defendants herein, as the Defendants herein acquired ownership rights through their share contribution and pray this court to issue orders confirming them as the owners of the suit property. The Defendants herein pray the Plaintiff’s suit be dismissed with costs and judgement be entered against the Plaintiff in the counterclaim for; 1. An order that the Defendants herein, Joseph Muithya Mbuvi, David Mumo Nzuki, Jimmy Mulwa Kiletu, Nzau Kiletu, Mutavi Uvyu, and Mumbua Kyengo Manthi T/A Ngalalya Society are the bonafide owners as part of members of all the parcel of land known as LR. 9775 comprising 130 acres. 2. A permanent injunction to issue restraining the Plaintiff, his representatives and/or assigns from selling, transferring and/or dealing with Defendants parcel of land known as LR. 9775 measuring 130 acres and an order cancelling the title alienating issued in the name of the Plaintiff and an order for issue of respectively titles in the name of the Defendants. 3. Costs of the counter-claim This court has carefully considered the evidence and the submissions therein. The issues for determination in this matter are as follows; 1. *Whether or not the Plaintiff is the legal owner of the suit Land Parcel No. LR9775* *comprising 130 Acres?* 2. *What orders should the court issue?* PW1 the Plaintiff testified that the suit property belonged to his father and which land was to be subdivide into his sons namely Daniel Mbatha Kitungu. Titus Mbuvi Kitungu, Joshua Kioko Kitungu and Ndululu Kitungu. He stated that they have been in quiet possession of the suit land since 1970s and they have been carrying out agricultural activities on the suit land. He further stated that the suit land has been litigated having gone all the adjudication process up to the appeal stage in presence of the Defendants herein. Ruling delivered and no Judicial Review application has ever been filed by the Defendant to challenge the Ruling at the appeal stage PW2. the treasurer of Mitaboni Farmers & Traders Ltd one Reinson Mwithui, adopted his statement dated 18th November 2024 and produced the documents from Mitaboni Farmers & Traders Ltd. He confirmed that from the documents from Mitaboni Farmers & Traders Ltd the suit property belongs to Kitungu Family. He produced a copy of the Company allocation letter dated 29th October 1994, A copy of the plot allocation letter dated 13th July 2022 and the company registration certificate. He also produced documents indicating that the suit property was allocated to Aron Kitungu with the agreement that the same be sub divided into four equal portions for his sons namely Ndululu Kitungu. Titus Mbuvi Kitungu, Daniel Mbatha Kitungu and Joshua Kioko Kitungu each of the four got 130 Acres. That he did not have any shadow members. PW3 was Raphael Musila Mutiso he adopted his statement dated 2nd July 2023. The Defendants stated that as members of the Ngalalya Society they are shareholders of Mitaboni Farmers & Traders Ltd and they are entitled to the suit property. The Defendants further filed a counter claim claiming ownership of the suit property. DWI, the Chairman of Ngalalya Society disowned the ruling from the minister and stated that they never participated. He admits that the ruling was not challenged. DWI produced a list of members for the Society dated 29th March 2022 and drawn by the Defendants Advocate Law firm and not Ngalalya Society. That in 1963 a group of 45 members trading as Ngalalya Society purchased the suit property through Aaron Kitungu Muthoka (Deceased) who was acting as Chairman of Ngalalya Society acting as shadow members. DWI also produced a document from the Deputy Commissioner Kathiani Sub County and which document is Appeal Summons indicating that the Defendants were aware of the Appeal to the minister and the Defendants were aware of the hearing date. DWI also produced a sale agreement which was written in Kamba Language but was not translated. DWI produced a letter dated 11th September 1992 to the Commissioner of the Co-operatives Development indicating that they have lodged a complaint under Section 80 (1) (a) of Cap 490, Laws of Kenya enclosing all the evidence. I find that Ngalalya Society sued one of the sons of Aron Kitungu Muthoka by the name Daniel Mbathai Kitungu in Civil Suit No. 176 of 193 and the same matter was dismissed for want of prosecution by Justice Mwera. From documentary evidence I find that the 2nd and the 3rd Defendants were part of the appeal to the minister as Appellants number 2 and 3. They confirmed that there has been dispute between the Kitungu family and themselves herein as Ngalalya Society and that the orders of Justice Mwera Civil Suit No. 176 of 1993 were not vacated or reviewed. They further stated that they did not challenge the decision of the Deputy Commissioner. In 1996 the Defendants herein in the name of Ngalalya Society filed a complaint in the District Commissioner being Land Tribunal Case No. 155/1996 between Ngalalya Society vs Daniel Mbatia, Joshua Kitungu and Titus Kitungu. From the documents produced by the Plaintiff, the Tribunal Case was heard in presence of all parties on 17th April 1997 and the same was adjourned to 26th May 1997. On 26th May 1997 objectors case was heard in presence of all parties and cross examination by the representative of the Defendants herein. On 3rd July 1997, the tribunal held that the Defendants herein (Ngalalya Society) had no documents credible to link them with the suit property and that the Kitungu Family is to continue using the land without interference. The Defendants herein were given 30 days of appeal. The Defendants did lodge an appeal to the Minister being Ngalalya Society(Appeallant) vs Daniel Mbatha, Joshua Kitungu, Timothy Kitungu and Titus Kitungu (Respondents). The Appellants were represented by the Joseph Muithya Mbuvi who is the 1st Defendant in this matter. From the proceedings of the appeal, the Appellant was allowed to testify and cross-examined and the Respondents were heard. Joshua Kitungu was heard and cross examined. The Deputy County Commissioner delivered her Ruling and confirmed the decision of the Land Tribunal Committee. I find that the Defendants fully participated in the appeal to the Minister and after a ruling delivered they never challenged the decision. It was also the testimony of the Plaintiff that Defendants herein filed another complain to the D.O on 17/5/1990 and the same was heard and the D.O stated that the complainants had no documentary evidence to prove. I find that the Defendants have not adduced any evidence to show that the said Aron Kitungu Muthoka purchased the suit land on their behalf as shadow members. DW1 alleged forgery and fraud on the part of the Plaintiffs to try and dispossess the rightful members contrary to section 40 of the Constitution. No evidence of this fraud on the part of the Plaintiff has been adduced. Section 109 of the Evidence Act Cap 80 is clear that; *''The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.''* The well-known mantra *“he who asserts must prove.”* Was well pointed out by the Court of Appeal in Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi (2013) eKLR as follows; *“We have considered the rival submissions on this point and state that Section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. Section 107 of the Evidence Act provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”* In James Muigai Thungu vs County Government of Trans-Nzoia & 2 others (2022) eKLR it was held that; *“It is now settled law that whosoever asserts the existence of a legal right or liability is vested with the burden to prove it except in so far as the law may expressly exempt him or her. Section 107 of the Evidence Act Chapter 80 Laws of Kenya succinctly states:* *Whosever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.* *Also, further, Section 108 of the Act states thus:* *The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.* *Again Section 109 of Act refers to the burden of proof of a particular fact. It states that:* *The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.* On the issue of locus standi, I find that the Plaintiff being the son of Aron Kitungu Muthoka has beneficial interest in the suit land. Indeed, he was involved in the previous disputes at the Tribunal on suit land where he was a Defendant. DW1 and DW2 also state that it was their fathers who bought the land hence their interest. From the evidence and the facts of this case I find that the Defendants have failed to prove their counterclaim on a balance of probabilities and the same is dismissed with costs. I find that the plaintiff has proved his case on a balance of probabilities and I grant the following orders; 1. An order of permanent injunction restraining the Defendants either by themselves, their servants, agents, workers or any other person claiming under them from entering, trespassing, moving into, seeking to occupy, alienating, encroaching, constructing and/or laying claim and in any other manner whatsoever from interfering with the plaintiff's rights of ownership, possession, occupation or use of the Parcel of Land Known as LR9775 comprising 130 Acres. 2. A declaration that the suit property being Parcel of Land known as L.R 9775 comprising 130 Acres belonged to the late Aron Kitungu Muthoka. 3. Costs and interest of this suit. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 30TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**