https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3181

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELC NO 54 OF 2018** **JUDITH JULIA WANJIRU NJOROGE ….......................................................... PLAINTIFF** **VERSUS** **SAMUEL NGERU MWANGI …......................................................................... DEFENDANT** **RULING** 1. This ruling is on the notice of motion dated 10-11-2025.The motion which is by the Defendant is brought Under **Order 40 rule 7 of the Civil Procedure Rules**, **Sections 1A,1B** and **1C** of the **Civil Procedure Act,** **Article 40** of the Constitution, inherent powers of the Court and all the enabling provisions of the law. 2. The motion seeks the following three (3) orders. 3. **An order directing the Land Registrar, Murang'a remove/and/or vary the restriction registered against land parcel Ithanga/Phase II/244.** 4. **A finding that the said restriction was irregularly and unlawfully registered contrary to the interests and rights of the Defendant.** 5. **That the costs of this application be provided for.** 6. The motion is based on six (6) grounds and is supported by an affidavit sworn by the Defendant dated 10-6-2025. The gist of the entire motion is as follows. Firstly, the suit land belonged to Gakuha Nduati. It was then allocated to Isaya Mwangi Kamau by the area chief, Kiarie Kairu pursuant to the authority of the area member of Parliament, one Hon. Gachago. This was in the year 1967. Secondly, Isaya Mwangi Kamau transferred the said land to the Defendant. This was confirmed by chief Kamande of Ithanga Phase II. Thirdly, the Plaintiff is a stranger to the Defendant and has no lawful claim to the suit land. Her alleged purchase of the land from Smart Hope Group is false and unsubstantiated. Fourthly, the restriction currently placed on the land by the Plaintiff has deprived the Defendant of the peaceful and lawful enjoyment of his property. Finally, the Defendant has no documentary evidence to prove that he owns the suit land 1. The motion is opposed by the Plaintiff who has sworn a replying affidavit dated 29-1-2026 in which she replies as follows. One, the issue of ownership of the suit land was determined in a judgment delivered on 28-2-2019 after which a decree issued . In that judgment, the Plaintiff was declared the bonafide owner of the suit land and the Defendant, a trespasser. Two, the Defendant was evicted from the suit land although he has made several attempts to re-enter the land. Three, in order to protect the land from fraudsters, the Plaintiff registered a restriction against the suit land. Four, the Defendant filed Civil application No. 87 of 2022 at the Court of Appeal Nyeri seeking to file the appeal out of time. His application was dismissed. Finally, the current motion seeks to reopen the suit that has already been determined. The Defendant has no right or interest over the suit land and should therefore not be heard to litigate over land where he has no such interests or rights. 1. In a supplementary affidavit dated 23-2-2026, the Defendant repeated what is in the Supporting Affidavit dated 10-11-2025. He added a few points as follows. One, the Plaintiff's title deed was applied for on 25-7-2015 which was a Saturday when Government Offices are ordinarily closed and this irregularity ought to be scrutinized by this Court. Two, on 21-8-2020 he was evicted from the suit land by the area OCS. In the process his house was set on fire. He lost his livestock. Three, on 21-9-2019, the Plaintiff was jailed for six years following a decree of this Court. Finally, the Plaintiff and her counsel should appear in court physically and explain all this. 1. No submissions were filed by the deadline of 15-4-2026. 2. I have carefully considered the motion in its entirety including the grounds, the two affidavits by the Defendant and the replying affidavit by the Plaintiff. I find that the following issues arise. **i) Whether the Defendant has any right or interest over the suit land.** **ii) Whether the orders sought should be allowed.** 1. On the first issue, I find that the Defendant has no right or lawful interest over the suit land. Firstly, he is not the registered owner of the suit land. The registered owner of the land is the Plaintiff. Under Section 24 of the Land Registration Act, the Plaintiff is vested with absolute ownership of the suit land together with all rights and privileges appurtenant thereto. These rights are enjoyed by the Plaintiff only. They include the right to restrict the suit land as the Plaintiff wishes. Secondly, litigation in this case came to an end when the Court dismissed the Defendants application dated 27-6-2019 seeking to set aside the judgment dated 28-2-2019. The Defendant's attempt to appeal against the ruling dismissing his application was not successful. His motion dated 4-11-2022 was dismissed on 16-6-2023 by the Court of Appeal. Thirdly, the Defendant is no longer occupying the land. He has admitted that he was evicted on 21-8-2020 following a lawful order issued by the Court. Finally, the Defendant has made many allegations about the ownership of the suit land but he has not proved why his father who he says owned the land was not registered as the owner. The Defendant's own annexture, being the copy of the register, shows that the land was registered in the name of Settlement Fund Trustees on 4-10-1989, then to Simon Gakuha Nduati on 22-10-1992, to Smart Hope Self Help Group on 4-10-2020 and finally to the Plaintiff on 26-5-2015. There is nothing to show that the land was ever owned by Isaya Mwangi Kamau. The said Isaya Mwangi Kamau could not have lawfully transferred the suit land to the Defendant if he himself did not own it. 1. Since the Defendant has failed to demonstrate that he has any interest or right over the suit land, I find that he is not entitled to the orders sought. Consequently and for the reasons given, I find **no merit** in the motion dated 10-11-2025 which I **dismiss** with costs. **Dated, Signed and Delivered virtually at Murang’a this 18th day of May, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant – Antony.** **Plaintiff's Counsel- Mr Lukorito.** **Defendant – Present in person.**