https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4213

Kariuki & 3 others v Nyokabi & 18 others (Environment and Land Case E529 of 2025) [2026] KEELC 4213 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KEELC 4213 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E529 of 2025 CA Ochieng, J July 7, 2026 Between John Muturi Kariuki 1st Plaintiff Mwangi Thuo 2nd Plaintiff Julius Gitau Kariuki 3rd Plaintiff Ivan Wainaina 4th Plaintiff and Monica Nyokabi 1st Defendant Kabiri Wangunyu 2nd Defendant and John Chege 1st Interested Party Luka Kimani 2nd Interested Party and Mungai Nganga Defendant and Mary Njeri Interested Party and Ndungu Karari 1st Defendant Chief Land Registrar, Nairobi 2nd Defendant and Mungai Nganga 1st Interested Party Joseph Irungu 2nd Interested Party Francis Maina 3rd Interested Party Stephen Kibugi 4th Interested Party Wanjiru Warika 5th Interested Party Francis Boro 6th Interested Party and Peter Nduni Kiarie 1st Intended Interested Party Irene Nduta 2nd Intended Interested Party Virginia Wamucii 3rd Intended Interested Party David Njenga 4th Intended Interested Party Waceke Kamuyu 5th Intended Interested Party Ruling 1.What is before the Court for determination is the 3rd Plaintiffs’ Notice of Motion application dated the 16th October 2024 and the Defendants’ and Interested Parties’ Notice of Motion application dated the 18th December 2025. Notice of Motion dated 16th October 2024 2.It is filed by the 3rd Plaintiff who seeks the following Orders:a.Spent.b.Spent.c.That the Honourable Court be pleased to substitute the name of the 3rd Plaintiff Julius Gitau Kariuki (deceased) who died on 6th August 2008 with the name of John Muturi Gitau.d.That this Honourable court do issue an order restraining the Provincial Land Surveyor, Nairobi from proceeding to subdivide, mark boundaries and erect beacons on all that parcel of land known as Dagoretti/Riruta/961 (New Number Block 66/961) until a proper surveying of the land in consultation with the parties herein is done as ordered by this Honourable court in earlier orders.e.That the Defendants by themselves, their agents and or servants be restrained from proceeding to sub-divide, mark boundaries and erect beacons on all that parcel of land known as Dagoretti/Riruta/961 (New Number Nairobi Block 66/961) until a proper surveying of the land in consultation with the parties herein is done as ordered by thus Honourable Court in earlier orders.f.That the Defendants by themselves, their agents and or servants be restrained from registering any survey and or issuing any Titles documents over sub-divisions on Dagoretti/Riruta/961 (New Number Nairobi Block 66/961) on the basis of the RIM on amendment to approve sub-division plan of the land noted on map sheet No.7 on 24th July,2023 or any other date without approval of this Honourable court.g.That this Honourable court be pleased to set aside and or nullify the purported amendment to the sub –division plan on the RIM to wit amendment to approve sub-division plan of the land noted on map sheet No.7 on 24th July,2023 or on any other date in regard to Dagoretti/Riruta/961 (New Number Nairobi Block 66/961).h.That this Honourable court do order for an independent licensed surveyor to carry out survey work on Dagorretti/Riruta/961 (New Number Nairobi Block 66/961) and present the report to court.i.That the costs of this application be provided for. 3.The application is premised on grounds on its face and on the supporting affidavit of John Muturi Gitau. He avers that the 3rd Plaintiff passed away on 6th August, 2008 after judgment in this matter had been issued and that having been appointed an administrator of his estate on 25th May, 2012 in Nairobi High Court Succession Cause No. 2738 of 2011 in the matter of the Estate of Julius Gitau Kariuki, he seeks to substitute him. 4.He avers that Judgment was delivered in this matter on 29th January 2004 and a Decree thereto was issued on 19th February 2004 and amended via an order issued on 1st September 2005. Further, that it clearly stipulated that the Provincial Surveyor should visit the suit land and prepare sub-division plans guided by conditions set by the City Council of Nairobi in its Minute No.11 of the proceedings for Works and Town Planning Committee meeting of 15th February 1989. Further, that the Court was categorical that the Plaintiffs are jointly entitled to two (2) acres out of the suit land’s 2.3755 hectares, less acreage to be excised from the entire parcel for roads, sewer and truncations at road junctions, drainage and other necessities. 5.He explains that on 27th July 2005, by consent of the parties, it was ordered that in complying with the Decree herein, the Provincial Surveyor was to ensure as far as practically possible that the parties affected by the survey were to retain their respective ground portions. Further, that on 11th December, 2009, this Court set aside a purported amendment to the approved subdivision plan of the suit land drawn by David N Gichohi, a private planner and insisted that the subdivision exercise be done pursuant to this Court’s Judgement. However, in contravention of the said orders, the Provincial Surveyor has made an amendment on the sub division plans using the same plans that were set aside by the Court, which will alter plots in shape and size. 6.He claims that upon unearthing that the Provincial Surveyor had amended the subdivision plans, he wrote to him demanding a halt to any sub-division, preparation and approval of the Scheme Plan regarding the suit land, which is not in accordance with this Court's Decree but no response was forthcoming. 7.Further, that together with others who own plots on the suit land, they contracted the firm of Country Travel Maps, Licensed Surveyors, to carry out a survey and compare it with the one done by the Provincial Surveyor, to ascertain whether it was compliant with this Court’s Decree and in the said firm’s conclusion, the Provincial Surveyor did not comply with this Court’s Decree. 8.He avers that parties herein have been in occupation of the suit land for years but if the new subdivision plans are implemented, they shall affect all the boundaries forcing every party to demolish structures on part of their plot and build in part of their neighbours plot, as it allocates some parties land larger than what they bought. Further, that an overlay of the said sub-division plans on google show that the new boundaries run on top and across buildings which are as old as the date of the PDP of 15th February ,1989. 9.He reiterates that the occupants of the suit land have disowned the survey map by the representatives of the 5th Defendant as they were not consulted and it will be unfair for the Provincial Surveyor to be allowed to unnecessarily move boundaries so that a few people can unlawfully benefit. Response 10.The application is opposed by the Defendants and the Interested Parties vide the 1st Interested Party’s replying affidavit. He avers that the application seeks to challenge the Judgement of this Court and it invites it, to sit on Appeal of its own Judgement, which was explicit that sub division of the suit land was to be undertaken by the Government Surveyor. He confirms that Defendants and the Interested Parties are satisfied with the Provincial Surveyor’s subdivision plan which takes into account the true portions bought by each Interested party. 11.He points out that the initial subdivision was rejected because it did not provide for utilities whereas the current map provides for the utilities as ordered by the Court in its judgement. 12.The application was canvassed by way of written submissions. Submissions 13.The 3rd Plaintiff submits that he has met the threshold for grant of injunctions sought as there exists a valid Court Decree that is clear on how the sub-division of the suit property should be carried out but the Provincial Surveyor acted in contravention of the said Decree in coming up with the RIM amendment dated 24th July 2023 unlawfully altering all the boundaries on the suit land. 14.He also submits that from the overlay, every beneficiary of the subdivision will have new boundaries and it is not what the parties envisaged when on 27th July 2005, by Consent, it was ordered that the Provincial Surveyor shall ensure that the parties affected by the survey shall retain their respective ground portions. To this end, he projects that there will be serious chaos if all boundaries have to move and submits that an injunction is the only way to protect the Court’s Decree and preserve the suit property. 15.He also submits that from the Regional Surveyor’s report attached to his letter addressed to Court, dated 15th September 2025, which he filed after he conducted ground picking pursuant to this Court’s directions, the beneficiaries of the suit land have settled on their plots and the only boundary problem is between parcel numbers 1 and 2 which need to be resolved. 16.To buttress his averments, he relied on the case of Kambanga Ranch v Ndoro & 146 others [2016] KEELC 1341 (KLR). 17.On their part, the Defendants and the Interested Parties submit that the 3rd Plaintiff is in essence seeking to halt the execution of the Judgement of the Court thus his application is frivolous. To this end, they relied on the case of Karenju v Kamau (Environment & Land Case 429 of 2012) [2025] KEELC 273 (KLR) (30 January 2025) (Judgement). Notice of Motion dated 18th December 2025 18.It is filed by the Defendants and the Interested Parties who seeks the following Orders:a.Spent.b.That this Honourable court do issue an order directing the Provincial Land Surveyor, Nairobi to proceed and sub divide, make boundaries and erect beacons on all that parcel of land known as Dagoretti/Riruta/961 (New Number Nairobi Block 66/961) in accordance with the consent to subdivide and transfer obtained by the purchasers of the suit property from the Dagoretti Land Control Board in 1972.c.That this Honourable Court be pleased to hold that the beneficiaries/owners of all that parcel of land known as Dagoretti/Riruta/961 (New Number Nairobi Block 66/961) are the ones identified in the land certificate issued on 17th October 1972 and or the beneficiaries claiming under them.d.That the costs of this application be provided for. 19.The application is premised on grounds on its face and on the supporting affidavit of the 1st Interested Party. He avers that in the early 1960’s, together with sixteen (16) other people, they purchased the suit property from Kariuki Igiria (deceased) and in 1971, they, alongside the vendor, approached the Dagoretti Land Control Board for consent to subdivide and transfer to each purchaser their respective portions but the Land Control Board declined to grant the consent to subdivide and advised them that no land certificate could be issued to portions less than five (5) acres. 20.He states that subsequently, since none of the purchasers could get an individual title, they agreed to get one certificate of title with each purchaser being noted on the land certificate and the green card and they nominated Mwangi Thuo, Nganga kimani, Ngugi Kigo, Julius Gitau Kariuki and Waithira to appear on the land certificate. He urges the Court to conduct a hearing to determine the original purchasers of the suit property, contending that execution of the Decree has delayed because the Court never enumerated parties who should register their separate titles as per its judgment of 29th January 2004. Response 21.The 3rd Plaintiff filed a replying affidavit in opposition. He avers that the application is an attempt to sidestep the Judgement in this matter and introduce a document that was not part of the Judgement as the basis of the subdivision. He insists that the Decree herein is clear that the Surveyor should be guided by conditions set by the City Council of Nairobi in its minutes of 15th February,1989 thus the consent to subdivide and transfer obtained from the Land Control Board in 1972 is not part of the Judgement herein. He also contends that the Interested parties were not parties to this case when it was heard and determined vide the Decree issued on 19th February,2004 22.He insists that it is only fair that this Court orders the Regional Surveyor to have subdivision of the suit land proceed as per the ground pickings attached to the letter dated 15th September 2025 filed, by the Regional Surveyor, Nairobi, after he did ground picking on 10th September 2025. 23.The application was canvassed by way of written submissions. Submissions 24.The Defendants and the Interested Parties insists that the green card to the suit property is owned by five (5) people who appear on the title and twelve (12) others whose names are enumerated on the green card. Further, that it is the said formula that the Court applied to grant the Plaintiffs two (2) acres thus he urges the Court to adopt the same in subdividing the suit land. Analysis and Determination 25.Upon consideration of the instant Notice of Motion applications including the respective affidavits and rivalling submissions, the following are the issues for determination:a.Whether John Muturi Gitau should be substituted in place of the deceased 3rd Plaintiff.b.Whether the 3rd Plaintiff has met the threshold for grant of injunctive orders sought in the Notice of Motion dated 16th October 2024.c.Whether the Notice of Motion dated 18th December 2025 is merited. 26.The 3rd Plaintiff seeks to halt implementation of the subdivision exercise of Dagoretti/Riruta/961 (New Number Block 66/961) being undertaken by the Provincial Surveyor pursuant to this Court’s Judgement of 29th January 2004. He contends that the said Surveyor purports to use an amended Registry Index Map (RIM), which substantially alters the existing occupation on the ground contrary to both the aforementioned Judgment and the Consent Order recorded on 27th July 2005 requiring that, as far as practicable, parties retain their respective ground portions. 27.He also seeks to restrain registration of titles based on the amended Registry Index Map (RIM), to nullify the subdivision on the basis of the RIM on amendment to approve sub-division plan of the land noted on map sheet No.7 on 24th July 2023, and also seeks orders to the effect that an independent licensed surveyor undertakes a fresh survey of the suit land. 28.On their part, the Defendants and Interested Parties insist that the Government Surveyor implemented the Decree in accordance with the Court's Judgment. 29.Vide their instant Notice of Motion application, the Defendants and the Interested Parties seek orders directing the Provincial Surveyor to undertake subdivision in accordance with the Land Control Board Consent issued in 1972 and further seek a declaration identifying beneficiaries based on the 1972 Land Certificate. 30.In opposition, the 3rd Plaintiff contends that the Judgment of 29th January 2004 already determined the manner in which subdivision was to be undertaken and that it did not contemplate implementation based on the 1972 Land Control Board Consent. 31.On the first issue, John Muturi Gitau sought for substitution on behalf of the 3rd Plaintiff who died on 6th August 2008 after Judgment had already been entered in the suit. He annexed a Death Certificate together with a Grant of Letters of Administration issued on 25th May 2012 in Nairobi High Court Succession Cause No. 2738 of 2011 appointing him as the administrator of the deceased's estate. This prayer was not opposed by the Defendants and the Interested Parties and I will hence allow it as it will aid the 3rd Plaintiff, who represents the deceased estate, in the execution of the Decree herein. 32.On the second issue, the Court will weigh the facts as against the principles on injunctions as set out in the case of Giella v Cassman Brown & Company Limited (1973) E A 358. 33.For the avoidance of doubt, I note the impugned Judgment which was delivered on 29th January 2004 and a Decree thereto was issued on 19th February 2004 and amended via an order issued on 1st September 2005 was very clear. It stated that the Provincial Surveyor was to visit the suit land and prepare sub-division plans guided by conditions set by the City Council of Nairobi in its Minute No.11 of the proceedings for Works and Town Planning Committee meeting of 15th February 1989. Further, that the Court indicated that the Plaintiffs were jointly entitled to two (2) acres out of the suit land’s 2.3755 hectares less acreage to be excised from the entire parcel for roads, sewer and truncations at road junctions, drainage and other necessities. 34.In the said Judgement there was no indication that the parties were to rely on the Consent of the Land Control Board of 1972 to implement the Order of the Court. I note parties thereafter entered into a consent recorded on the 27th July, 2005 on implementation of the impugned Judgement. 35.It is my considered view that parties including the Provincial Surveyor were to adhere to the terms of the said Judgement including the impugned Consent and not any other extraneous factors. Further, for parties who were in this suit when Judgement was delivered and have an issue, they had a recourse to Appeal. 36.In the foregoing, I find that it was improper for the Provincial Surveyor to implement the subdivision plan contrary to the Judgement of this Court and in case it proceeded to do so, the same is set aside. I hence find that it would be proper for him to be restrained from proceeding to implement any subdivision plan which is contrary to the Judgement of this Court. In my view, it would be pertinent for parties to jointly agree on one Licensed Surveyor to work with the Government Surveyor to implement the Court’s Judgement. 37.On the third issue, the Defendants and Interested Parties vide the Notice of Motion application dated the 18th December 2025 seek for the implementation of the Judgement to rely on the Consent of the Land Control Board of October, 1972. I note the impugned Judgement sought to be implemented did not direct so. Further, it seems the Applicants seek for the Court to sit on Appeal against the impugned Judgment. Further, this Court cannot sidestep the terms of the impugned Judgement. I opine that parties ought to have filed an Appeal or Review if they were aggrieved with the terms of the Judgement sought to be implemented. In the foregoing, I am unable to allow the prayer seeking to use the aforementioned consent of the Land Control Board to implement the judgement. 38.In the circumstances, I find the Notice of Motion application dated the 18th December 2025 unmerited and will disallow it. I further find the Notice of Motion application dated the 16th October, 2024 merited and will allow it. 39.I further direct that the parties herein to jointly agree on a Licensed Surveyor to work with the Government Surveyor to undertake the subdivision within ninety (90) days from the date hereof, and present a report to Court. 40.Each party to bear their own costs. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF JULY, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Ms. Kipkulei for 4th PlaintiffMs. Njogu for Oluoch for 3rd PlaintiffOngoto for Defendants and Interested PartiesCourt Assistant: Vena