Mulandi v Kalui & another (Environment and Land Case 106 of 2018) [2026] KEELC 3055 (KLR) (21 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC NO. 106 OF 2018** **JOSIAH NTHIANI MULANDI........…………………………….PLAINTIFF** **-VERSUS** **DANIEL MATHEKA KALUI... …………………..............1ST DEFENDANT** **PETER KALELI MULANDI..............................................2ND DEFENDANT** **JUDGMENT** 1. The Plaintiff through a re-amended plaint dated 9th April, 2025 sought the following reliefs against the Defendant: 2. **That an order be issued by the honourable court directing government surveyor or any other qualified survey to ascertain and mark boundaries of land parcels; 353, 354 and 255 as well as 617 and the other unknown number in accordance with the original demarcation schedule.** 3. **That an order is issued by the honourable court directing the Land Registrar to cancel and/or revoke all irregularly issued title/Nos. 1400 and 1891 and thereafter issue fresh titles based on the determination of this honourable court.** 4. **An order be issued restraining the Defendant from entering plots No. 1400 and 1891 which were hived from plot number 353 until the original boundaries are marked by government surveyor or otherwise lawfully ordered.** 5. **An order of this court directing that the Plaintiff be compensated as per earlier indicated in the decision of the Minister in terms of Kshs.140/= seven (7) goats valued at Kshs.8,000/= each at a total of Kshs.56,000/=.** 6. **Costs** 7. **Interest as from 18th September, 1959 upto date of judgment.** 8. The suit herein was originally filed by Josiah Nthiani Mulandi who upon demise was substituted by the present Plaintiff who is his son. The history of this suit can be traced to a boundary dispute between Kalui Mutwota which was filed at Kilungu as Land Case No. 6 of 1959. 9. It is said that the Plaintiff’s father financed the litigation which restored his father’s land to the family. The Plaintiff’s father was one of the three sons of Mulandi Mutwota. The other two sons of Mulandi were Kalui Mulandi the father to the Defendant and Kaleli Mulandi. 10. On 28th August, 1998, the three sons of Mulandi called clan members who assisted in subdividing Mulandi’s land amongst the three sons. The clan members gave each of the sons portions of land. During the sharing of Mulandi’s land, the clan elders were informed that the Plaintiff’s father had incurred expenses in the 1959 litigation against Wambua Mutwota. The elders agreed to compensate the Plaintiff’s father with Kshs.140/=, 7 goats and payment to the elders but the compensation was to be in form of land. 11. The Defendant who is son to Kalui Mulandi was opposed to the proposal to compensate the Plaintiff by giving him land. The Defendant went and filed a case before the demarcation committee. The case progressed until an appeal was made to the Minister vide Appeal case No. 207 of 2006. In this appeal, the Minister directed that the Plaintiff’s father be compensated by way other than through allocation of land. It would appear that as a result of the Minister’s decision there was creation of parcel 1891, 1400 and 353. It is these three parcels that the Plaintiff wants their acreages to be ascertained so that the three are all equal in size and that he gets the Kshs.140/= and the value of 7 goats at Kshs.8,000/= per goat. 12. The Defendant who was duly served neither entered appearance nor filed defence. The case therefore proceeded by way of formal proof. 13. At the hearing, the Plaintiff testified that when the Defendant went before the arbitration board, a portion was curved out of his father’s parcel No. 353. Again in 2018, the Defendant went and curved another portion of land from his father’s land. It is his evidence that the Defendant’s father had been given parcel 61 and another parcel which is unknown to him. His other uncle Peter Kaleli Mulandi was given parcel 354 and 355. 14. The Plaintiff’s evidence is that parcel Nos. 1400 and 1891 were hived of from parcel 353. The Plaintiff contends that it is only the Defendant who complained that his father had been given more land by five acres. The Plaintiff stated that his uncle Peter Kaleli did not complain and that efforts by the clan to resolve the dispute did not materialize as the Defendant refused to attend the clan meetings. 15. The Plaintiff filed his submissions dated 12th February, 2026. I have duly considered the evidence adduced by the Plaintiff and his witness as well as the submissions by the Plaintiff. Though the case proceeded by way of formal proof, the Plaintiff was bound to prove his case on a balance of probabilities. 16. The Plaintiff’s case is hinged on the Minister’s decision which arose out of Appeal No. 207 of 2008. It is not known when the decision of the Minister was made. The Plaintiff never filed or produced any document arising from the Minister’s decision in Appeal No. 207 of 2006. If the Plaintiff’s father was aggrieved by the decision of the Minister he was expected to file judicial review proceedings or file any other proceedings permitted by law. It appears he never did any of the lawful actions which were open to him. 17. There was absolutely no evidence adduced to show that parcel 1400 and 1891 have titles as to call for their cancellation. Equally there was no evidence that parcel 612 and the other unknown parcel given to the Defendant’s father have titles. This is the same case with parcel 354 and 355 given to Peter Kaleli Mulandi and the Plaintiff’s father parcel 353. 18. There was no evidence adduced to show that parcel No. 1400 and 1891 were curved out of parcel 353. If there was any order for compensation of Kshs.140/= and 7 goats ordered by the Minister, there was no evidence adduced to show that the Minister indeed ordered for such compensation. Even if there was such an order, the same cannot be recoverable given the passage of time from the time the order was made if at all it was ever made. 19. The suit properties are within Wathini Adjudication Section. There was no evidence adduced when land adjudication occurred in the area and whether the process was completed. If there were any issues which arose during the adjudication which appears to be the case, the Plaintiff’s father had a clear procedure to follow in urging his grievances. 20. Courts do not give orders in vain. Court orders are given based on credible evidence adduced. If the Plaintiff wanted an order cancelling titles for parcel 1400 and 1891, evidence of existence of such titles ought to have been adduced. Evidence ought to have been led to show that the two titles were unlawfully created from parcel 353. 21. Ascertainment of any interest in land in an adjudication section is the work of Adjudication Officer and if any grievances are there, the parties have options to pursue including an appeal to the Minister and further to the court and not through an ordinary suit like the present once. I therefore find that the Plaintiff has failed to prove his case on a balance of probabilities. The same is dismissed with no order as to costs. **.................................** **HON. E. O. OBAGA** **JUDGE** **JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 21ST DAY OF MAY, 2026.** **IN THE PRESENCE OF:** Mr. Nyakeriga for Plaintiff Court assistants – Kilonzo and Musyoki