https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4949

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA** **ELCLC NO 18 OF 2023** ***(formerly Nyahururu ELC No E002 of 2022)*** **AMOS MWANGI KARANJA (suing as the legal Representative of the Estate of KARANJA GATURU.........................................PLAINTIFF** **VERSUS** **MARATA WANGARI KAMBI & 6 OTHERS.....................DEFENDANTS** **JUDGMENT:** In the Plaint dated 9/10/2020 and amended on 5/7/2022, Amos Mwangi Karanja, the legal representative of the Estate of Karanja Gaturu sued the 7 sons of Kambi Kaniarithia and their mother, Virginia Wangui and Stephen Njuguna Ng’ang’a as 8th Defendants the last two sued as the legal representatives of the Estate of Joseph Ng’ang’a Njuguna for the following orders: 1. A Declaration that the Estate of Karanja Gaturu is the legal and absolute proprietor of L.R No. NYANDARUA/SOUTH KINANGOP /66. 2. Nullification of the entry on 7/5/1998 of the register of L.R No. NYANDARUA/SOUTH KINANGOP/66 and all the other subsequent entries including the entry on sub-division of the said parcel of land. 3. Nullification and closure of all the registers of L.R. NYANDARUA/SOUTH KINANGOP/4991 to 4996 and all the entries therein including the registration of the 1st Defendant as the first proprietor of each parcel of land, and subsequent registration of the 2nd to 7th Defendants and Joseph Ng’ang’a Njuguna as proprietors, and the entry of 14th July, 2010 that closed all the said registers on the basis of combination. 4. Nullification of the register of L.R NYANDARUA/SOUTH KINANGOP/9237 and all the entries therein including the registration of Joseph Ng’ang’a Njuguna as its proprietor and issuance of Title Deed in his name. 5. Costs of this suit. 6. Any other of further relief that the Court may deem fit and just to grant. The grounds upon which the suit was based are that on or about 1/12/1989, the Settlement Fund Trustees allotted the late Karanja Gaturu all that parcel of land that was known and described as plot No. 66 South Kinangop which in due cause came to be known and described as L.R No. NYANDARUA/SOUTH KINANGOP/66 – the suit land. this was as a result of an agreement for sale between Karanja Gaturu as the purchaser and one KAMBI KANIARITHIA as the vendor of the suit land, the latter having been its initial owner after whose death in 1995, the 1st Defendant filed a suit in Naivasha, S.R.M.C Civil Case No 52 of 1983 against Karanja Gaturu claiming ownership of the land. The Court found in favour of Karanja Gaturu and issued an eviction order against the 1st Defendant who subsequently evicted the said 1st Defendant from the land. This Judgment has never been upset. Karanja Gaturu therefore stands as the owner of the land to date. After Karanja Gaturu’s death on 7/5/1998, the 1st Defendant fraudulently caused the said suit land to be registered in her name in spite of the above Judgment and the subsequent Decree through falsified documents hence defrauding the family of Kranja Gaturu. She was hence issued with a Title Deed. On 4/8/2008, the 1st Defendant caused the Register of L.R NYANDARUA/SOUTH KINANGOP/66 to be closed on sub-division and new registers were subsequently opened for L.R NYANDARUA/ SOUTH KINANGOP/4991 TO 4996 which were all initially registered in the name of the 1st Defendant. On 26/8/2008, about 22 days thereafter the 1st Defendant transferred her interest over L.R NYANDARUA/SOUTH KINANGOP/4991 to 4996 (inclusive) to the 2nd to 7th Defendants respectively all of whom being her children who later transferred their respective interests to the late Joseph Ng’ang’a Njuguna and on 14/7/2010, the registers for L.R NYANDARUA/SOUTH KINANGOP/4991 to 4996 respectively were closed and they were consolidated into one block and re-numbered L.R NYANDARUA/SOUTH KINANGOP/9237 and on the same day, Joseph Ng’ang’a Njuguna was registered as the proprietor of NYANDARUA/SOUTH KINANGOP/9237 and who then took possession of the land later in 2012. The Plaintiff in Nairobi Succession Cause No. 2191 of 2004 petitioned for the letters of administration in respect to the Estate of Karanja Gaturu and the Deceased’s Estate was distributed and among the assets being the suit land (NYANDARUA/SOUTH KINANGOP/66). Then in early 2010, the Plaintiff came to know about about Nairobi High Court ELC No. 33 of 2002 whereby the ownership of the said parcel of land was being litigated by the 1st Defendant and one Amos Weru Murigu. On 5/2/2010, the Plaintiff sought to be joined in Nairobi HCC ELC No. 33 of 2002 in order to protect the interests the Estate of Karanja Gaturu over the said parcel of land and the Plaintiff came to know of the fraudulent acts in Naivasha SRMCC No. 52 of 1985. On 17/3/2011 the High Court in Nairobi in HC ELC No. 33 of 2002 ordered the 1st Defendant to abide by the Decree in Naivasha SRMC No. 52 of 1985. The Plaintiff averred that the 1st Defendant lacked capacity to be registered as the proprietor of the parcel No. NYANDARUA/SOUTH KINANGOP/66 and further L.R NYANDARUA / SOUTH KINANGOP/4991 to 4996 (inclusive) and also capacity to transfer the sub-divisions to the 2nd to 7th Defendants and therefore the subsequent registrations were as well null and void just as the transfer of L.R No. NYANDARUA/SOUTH KINANGOP/9237 to Joseph Ng’ang’a Njuguna. In the Statement of Defence by the 1st to 7th Defendants dated 26/1/2021 and amended on 21/7/2022, the said Defendants denied the contents of the entire Amended Plaint save the descriptive parts thereof. They further said that the award of the panel of elders was made without jurisdiction and that further, Naivasha Senior Principal Magistrate’s Court had no jurisdiction to read and confirm an award that was null and void. They also denied the particulars of fraud under paragraph 8 of the Amended Plaint. They finally said that Nairobi HCCC No. 33 of 2002 (later Nyahururu ELC No 306 of 2018) where the ownership of the land in question was the subject matter is still pending in ELC Court at Nyahururu. They therefore prayed that the suit be dismissed with costs. In the 8th Defendant’s further Amended Statement of Defence and Counter-claim dated 5/9/2024, the Estate of Joseph Ng’ang’a Njuguna contended that the suit offended the provisions of Section 6 of the Civil Procedure Act in view of Nyahururu ELC NO. 306 of 2018 (formerly Nairobi HCC No. 32 of 2002 (OS) and that the claim was based on a Judgment hinged on the adoption of an award of elders which was made without jurisdiction hence null and void. They also averred that the Plaintiff’s claim was time barred by virtue of Limitations of Actions Act (Cap 22 Laws of Kenya). The 8th Defendant also said that the Deceased took possession of the land NYANDARUA/SOUTH KINANGOP/66 in 2009 and not 2012. The 2nd to 7th Defendants equally averred that Nyahururu ELC No. 3906 of 2018 was still pending in Court. In the Counter-claim, the 8th Defendant averred that they were bona fide purchasers for value without Notice as the Plaintiff had not taken any measures to ventilate their claim of the suit land. And that the Plaintiff should then compensate the 8th Defendant at a fair market value of the suit land. In the Reply to 8th Defendants’ Statement of Defence, the Plaintiff joined issues with the 8th Defendants and added that the Judgment of Naivasha SRMCC No. 52 of 1985 was from a Court with competent jurisdiction. The hearing of the suit commenced on 8/5/2025 with Amos Mwangi Karanja adopting his statement dated 9/10/2020 which resonates with the Plaint of even date. He said he was one of the Administrators of the Estate of Karanja Gaturu together with Nancy Wangari Karanja and Eddie Wambui Karanja. He said that other Administrators of Karanja Gaturu died on 7/3/2020 and 24/11/2016 respectively and that therefore he was the sole surviving Administrator of the Estate of his deceased father. He said that on 1/12/1989, the Settlement Fund Trustees allotted Karanja Gaturu plot No. 66 South Kinangop which later came to be known and described as L.R NYANDARUA/SOUTH KINANGOP/66. This followed an agreement for sale between Karanja Gaturu as the purchaser of the 10 Acres and Kambi Kaniarithia, late husband to the 1st Defendant as the Vendor for Kshs. 46,000 in the 1970’s and who died in 1977. The 1st Defendant laid claim over the land but Naivasha SRMCC Civil case No. 52 of 1985 dismissed this claim and the family of Karanja Gaturu took possession of the land. He further said in his statement that the Judgment of Naivasha S.R.M Court has never been set aside and is still in full force. Even after Karanja died in 1993, his family continued in occupation of the land until 2008 when his homes were unlawfully and maliciously demolished by his uncle Amos Murugu and his children who were charged in Naivasha Criminal Case No. 2 of 2008 and were convicted and sentenced. On 7/5/1998 the 1st Defendant fraudulently caused the land to be registered in her name and sub-divided and transferred as averred in the Plaint. The prayers are also exhaustively detailed in the Plaint. He then produced the following documents: - 1. Ministry of Lands and Settlement charge for Parcel No. 66 South Kinangop. 2. Grant of letters of administration for the estate of Karanja Gaturu (deceased). 3. Certificate of confirmation for the estate of Karanja Gaturu, deceased. 4. Certificate of official search for L.R Nyandarua/South Kinangop/66. 5. Abstract of titles for L.R Nyandarua/South Kinangop/4991 to 4996. 6. Copy and Certificate of official search for L.R Nyandarua/ South Kinangop/4997. 7. Extracted Plaint in Nairobi SRMC No. 52 of 1985. 8. Judgement in Nairobi HCCC No. 33 of 2002. 9. Copy of tracing and order in Nairobi HCC No. 33 of 2002 On cross-examination by Ms. Muchoki for the 1st to 7th Defendants, the Plaintiff said his father was issued with an allotment letter on 1/12/1969 by the Ministry of Lands but died in November 1993 before he was issued with a Title Deed. He said that his paternal uncle Mungai was as well claiming ownership of the land and that is why he demolished the Plaintiff’s house in January 2010. He said he came to know that the 1st Defendant was issued with a Title Deed for the land on 7/5/1998. He learnt of this in 2012. He said he had not been able to regain possession. On cross-examination by Mr. Mbigi, the Plaintiff said that he was born in 1971 and in 1985 he was therefore 14 years old and in primary school and was hence not involved in the matters of the purchase of the land but came to learn about it in 1988 or thereabout. But that the Award of the Tribunal was adopted on 19/9/1989. He said that he filed Nakuru J.R case No 67 of 2011 asking for the cancellation of the Titles that came from NYANDARUA/SOUTH KINANGOP/66. But he was unsuccessful. He further said that Karanja died before Title Deeds for the area were issued. On re-examination by Mr. Komu, the Plaintiff said that he was very confident when he was filing the case at Naivasha that the land belonged to his father and that he blamed the 1st Defendant for the mess relating to the ownership of the land which benefitted the 8th Defendant. After the close of the Plaintiff’s case DW1 David Njogu Kambi , the 6th Defendant and son to the 1st Defendant with authority from the 1st to 8th Defendants to give evidence on their behalf, adopted his evidence in form of a recorded witness statement dated 24/5/2021. He said that the property NYANDARUA/SOUTH KINANGOP/66 was originally allotted to his late father Kambi Kaniarithia in the 1960’s by the SFT. He then entered in negotiations with the late Karanja Gaturu who had a plot in Pangani but Kambi realized it was a hoax but by the time he returned to Kinangop he found that Karanja had fenced off parcel No. 66 and prevented his father from taking possession. He said that it was his mother, the 1st Defendant who serviced the loan to SFT upon which the land was transferred to her by the SFT and the land was transferred to her by the Succession Court in Nakuru High Court, Succession Cause No. 37 of 1985. She then sub-divided the land and gave it to her children including the witness all of who sold and transferred their interest to the 8th Defendant. He said that the Judgment of Naivasha Senior Principal Magistrate was null and void and that the Plaintiff’s suit to cancel the various Titles was dismissed by the Court in Nakuru High Court J.R. No. 67 of 2011 on 21/6/2011. He finally said that the suit was bad in law for it was statute barred. He then produced the following documents: - 1. Bundle of statement of accounts issued by the Settlement Fund Trustees. 2. Grant of letters of administration dated 12th June 1985 issued in Nakuru HC Succession Cause No. 37 of 1985. 3. Demand Notice from the Ministry of Lands and Housing dated 9th May 1989. 4. Copy of title deed for Nyandarua/South Kinangop/66. 5. Certificate of official search for Nyandarua/South Kinangop/4991 6. Certificate of official search for Nyandarua/South Kinangop/4992 7. Certificate of official search for Nyandarua/South Kinangop/4993 8. Certificate of official search for Nyandarua/South Kinangop/4994 9. Certificate of official search for Nyandarua/South Kinangop/4995 10. Certificate of official search for Nyandarua/South Kinangop/4996 11. Copy of title deed for Nyandarua/South Kinangop/4991 12. Copy of title deed for Nyandarua/South Kinangop/4992 13. Copy of title deed for Nyandarua/South Kinangop/4993 14. Copy of title deed for Nyandarua/South Kinangop/4994 15. Copy of title deed for Nyandarua/South Kinangop/4995 16. Copy of title deed for Nyandarua/South Kinangop/4996 17. Ruling in Nakuru HC Judicial Review No. 67 of 2011 18. Proceedings in Nairobi ELC No. 33 of 2002 now Nyahururu ELC No. 306 of 2018 19. Rulings and Judgment in Proceedings in Nairobi ELC No. 33 of 2022 now Nyahururu ELC No. 306 of 2018. There was no cross-examination from Mr. Mbigi for the 8th Defendant. When cross-examined by Mr. Komu for the Plaintiff, the 6th Defendant said that the Demand Notices he claimed that his fathers’ family received were not in Court nor was the allotment letter. He could also not tell the description of the property in Nairobi his father was to get in exchange from Karanja. He said that he saw an agreement that read that his father had received from Karanja Kshs. 46,000/- and his mother told him she had received a further Kshs. 16,000 from Karanja. He said that when his late father died he could not be buried on the suit land because of this dispute with the Kambi’s. He was therefore buried in his brother’s land in Lare, Njoro. He said that when the Court adopted the Award of the Tribunal on 29/9/1089 his mother did not appeal against it. Further, that his parents never refunded the money they received from Mr. Karanja and that they later sold the entire land to the 8th Defendant. He also said he did not have the discharge of charge from the SFT. On re-examination from Mr Muchoki, Mr Njogu Kambi, a pastor with K.A.G said they as a family were not aware Gaturu had received a letter of allotment. When answering questions from the Court, Mr Kambi said that he saw the 2 sale agreements between his parents and Karanja Gaturu one of which talked of his father having received Kshs. 46,000/- and signed for it. Karanja also signed for it. As for the 2nd agreement his mother placed a thumb print against her name while Karanja signed it as well. On further re-examination by Mr. Muchoki, the witness said that the agreements never referred to exchange of the land NYANDARUA/ SOUTH KINANGOP/66 against a plot in Nairobi. DW2 Stephen Njuguna Ng’ang’a took to the witness stand on 2/7/2025 and adopted his recorded statement dated 5/9/2024 which he wished to rely upon as his evidence in chief. He said he did not know the Plaintiff in the suit. He said that he had been in possession of the suit land since 2009. He said that it was his father who had bought plot No. NYANDARUA/SOUTH KINANGOP/ 9237. He testified that he had built on the land and that his father was practicing dairy farming on the same. He said that the parcel Nos. NYANDARUA/ SOUTH KINANGOP/4991,4992,4993,4994,4995 and 4996 were consolidated at the time of the purchase into one Title namely NYANDARUA/SOUTH KINANGOP/9237. He said that the case against him was far-fetched. He then produced the following documents to cement his case: - 1. Search for Nyahururu/South Kinangop 4991 2. Search for Nyahururu/South Kinangop 4992 3. Search for Nyahururu/South Kinangop 4993 4. Search for Nyahururu/South Kinangop 4994 5. Search for Nyahururu/South Kinangop 4995 6. Search for Nyahururu/South Kinangop 4996 7. Copy of Title Deed for Nyahururu/South Kinangop 4991 8. Copy of Title Deed for Nyahururu/South Kinangop 4992 9. Copy of Title Deed for Nyahururu/South Kinangop 4993 10. Copy of Title Deed for Nyahururu/South Kinangop 4994 11. Copy of Title Deed for Nyahururu/South Kinangop 4995 12. Copy of Title Deed for Nyahururu/South Kinangop 4996 13. Sale Agreement for L.R. Nyandarua/South Kinangop 4991 – 4996 14. Application for development permission for L.R. No. Nyandarua/South Kinangop 4991 15. Application for development permission for L.R. No. Nyandarua/South Kinangop 4992 16. Application for development permission for L.R. No. Nyandarua/South Kinangop 4993 17. Application for development permission for L.R. No. Nyandarua/South Kinangop 4994 18. Application for development permission for L.R. No. Nyandarua/South Kinangop 4995 19. Application for development permission for L.R. No. Nyandarua/South Kinangop 4996 20. Bundle of payment receipts for transaction at the County Council of Nyandarua for L.R. No. Nyandarua/South Kinangop 4991 – 4996 21. Title deed for Nyandarua South/ Kinangop 9237 22. Ruling in Judicial Review No. 67 of 2011 Amos Mwangi Karanja the Research law Registrar Nyahururu. 23. Pleading in Nairobi ELC Case No. 33 of 2002 (OS) now Nyahururu ELC No. 306 of 2018 24. Rulings and Judgment in Nairobi ELC case No. 33 of 2002 now Nyahururu ELC No. 306 of 2018 25. Notice of appeal in Nairobi ELC No. 33 of 2002 now Nyahururu ELC No. 306 of 2018 26. Notice of address for service in Nairobi ELC No. 33 of 2002 now Nyahururu ELC No. 306 of 2018. 27. Ruling in Nakuru High Court JR 67 of 2011 On cross-examination by Ms. Muchoki for 1st to 7th Defendants, Mr Ng’ang’a said he had been in possession of the land since 2009. He said he had conducted searches before buying the land and that there were no encumbrances to the land and further, there were farming activities by the family of Kambi before they sold the land and that the Judgment in Naivasha of 1989 was never brought to his attention when he was buying the land. On cross-examination by Mr. Komu for the Plaintiffs, Mr. Njuguna said that the initial parcel was No. NYANDARUA/SOUTH KINANGOP/66 which was sub-divided into 4991 to 4986 and that the allottee of plot No. 66 was Karanja Gaturu. He further said that when his father went to buy the land, he didn’t know that the land emanated from SFT and that he didn’t know that the land had been bought by Kambi from Karanja Gaturu. On re-examination by his lawyer Mr. Mbigi, the witness said he was only aware of the case in Naivasha and not any other. After the close of the case I asked the parties to file written submissions which they did and it is now my singular duty to write the Judgment. In the center of this case are a few issues: - 1. Is the Decree of Naivasha SRMCC No. 52 of 1985 enforceable in that the Land Disputes Tribunal did not have power and jurisdiction to decide on Title to land? 2. In case it did not have, does the Decree stand? The Court has not been favoured with the Decision of Naivasha SRMCC No. 52 of 1985. But assuming there was a Decision without jurisdiction, the moment the award was adopted as a Judgment of the Court, the options for the Defendant remained 3; the party that was not happy with that Decision ought to have: 1. Filed an Appeal to the Provincial Appeals Committee under the now repealed Land Disputes Tribunal Act within 30 days. 2. Instituted Judicial Review proceedings before the Environment and Land Court for orders of mandamus, certiorari or prohibition. 3. Accepted the outcome and move on. Issues of jurisdiction should be raised at the earliest stage where the same should be disposed of at the earliest opportunity so that the Court void of jurisdiction downs its tools. Failure to raise the issue of jurisdiction or challenge the Decision of the parcel of elders means that all the parties were satisfied with the Decision. It cannot wait until a later date. That is why the Honourable Justice Mbogholi Msagha held on 17/3/2011 that: - “................... any subsequent litigation after the Decision of the Court in Naivasha RMCC No. 52 of 1985 lacked foundation. Therefore any orders founded on that litigation must be declared null and void ab initio...............” Even assuming the above Judgment of the Honourable Justice Mbogholi Msagha were not there, according to documents produced by the Plaintiff, it is clear that the suit land Plot No. 66, South Kinangop was allotted to Karanja Gaturu on 1/12/1989. This is shown in the attached letter of allotment. The same was to be charged Kshs. 4,000/- and Mr. Gaturu appended his signature on the letter of allotment. There is also a charge for the same parcel of land dated 23/9/1963, still in the name of Karanja Gaturu. The Plaintiff has been able to show how his late father bought the land NYANDARUA/SOUTH KINANGOP/66 before the discharge of charge was issued and the said Karanja and the late Kambi went to Nairobi SFT offices to have the same transferred to the former. It was therefore expected that the Discharge of charge was to come out in a line with the letter of allotment that was issued to Karanja Gaturu who had executed a sale agreement and paid to Kambi Kshs. 64,000/- and the balance of Kshs. 16,000 to the 1st Defendant which the latter acknowledged was duly paid to him. According to the documents produced by the 1st Defendant as Administrator of the Estate of Kambi, the same was issued on 17/5/1998 long after the interest in the land had already passed on to the Plaintiff’s father. It is not shown how the 1st Defendant acquired the land her late husband having passed a good Title to Mr. Karanja Gaturu. For you to get a Title of land that belonged to the SFT there must be a discharge of charge and transfer from the SFT in your favour. None was shown in favour of Kambi or the 1st Defendant. The only one shown was in favour of Karanja Gaturu. Even the statements of Account in the name of Kambi Kiniarithia produced by the 1st Defendant do not show any money paid by the Kambi’s. The 1st Defendant having not had a good Title to NYANDARUA/ SOUTH KINANGOP/66 and having not shown how she got the Title to the land whose interest had already been transferred by her late husband, he could therefore not have passed a good Title to the 2nd to 7th Defendants and subsequently to the 8th Defendant. To the 8th Defendant, the message is: “you can only get a good Title from one who had acquired a good Title to the property whose interests are being passed on to you.” In view of the 1st Defendant not having shown how she obtained the Title to NYANDARUA/SOUTH KINANGOP/66, there must only be one explanation of getting the Title Deed - either by fraud, corrupt deal(s) or by mistake. Honourable Justice Msagha having held that any litigation founded on Naivasha RMCC No. 52 of 1985 lacks foundation, Joseph Ng’ang’a, the 8th Defendant filed a Notice of Appeal dated 25/8/2016 and requested for certified copies of proceedings and order. Beyond this Notice, I have not found any further proceedings of Nyahururu ELC No. 306 of 2018 Earlier on 5/5/2009 there was an order of eviction against the 1st Defendant herein after she had refused to vacate NYANDARUA/SOUTH KINANGOP/66 following a Court Order No Appeal or any other superior Court has set aside this Order. It still subsists. I will not give any weight to the Judgment in Nairobi CCC No. 33 of 2002 which dismissed the Plaintiff’s case of adverse possession because after the dismissal of the case by the left hand on 30/9/2002 the same Court gave Karanja the ownership of the land with the right hand on 17/3/2011 when the Court held that the 1st Defendant must abide by the orders of the Naivasha Court without exception which gave eviction orders against the 1st Defendant herein. The same were never overturned nor reversed or set aside and the same are still subsisting. The land she was evicted from NYANDARUA/SOUTH KINANGOP/66 from which NYANDARUA/SOUTH KINANGOP/4991 TO 4996 (inclusive) were hived off and then the same again amalgamated and merged into NYANDARUA/SOUTH KINANGOP/ 9237. The root of this Title having been a product of fraud, no amount of persuasion can sanitize the Title. Accordingly, I give Judgment in favour of the Plaintiff as prayed for in the Plaint dated 9/10/2020 and amended on 5/7/2022. The costs of this suit will be borne by the 1st to 7th Defendants in favour of the Plaintiff. **Judgment dated and signed at Nyandarua this 16th day of July, 2026.** **MUGO KAMAU** **JUDGE** In the presence of: Samson……. C/A Ms. Komu .….…… for the Plaintiff. Mr. Muchoki….…. for the 1st to 7th Defendants. Mr. Mbigi …………for the 8th Defendant.