https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4904

**REPUBLIC OF KENYA** **IN THE ENIVORNMENT AND LAND COURT AT MACHAKOS** **ELC(OS) CASE NO. 29 OF 2021** **MUTHINI NDIVE:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF** **AND** 1. **HON.ATTORNEY GENERAL FOR AND/ON BEHALF OF LANDS REGISTRAR MACHAKOS::::::::::::::::::::::::::::::::::::::::::DEFENDANT** 2. **COUNTY SURVEYOR MACHAKOS::::::::::::::::::::::::2ND DEFENDANT** 3. **BENSON MUANGE MUTUNGA::::::::::::::::::::::::::::::3RD DEFENDANT** 4. **JAMES KITHUKU MUTUNGA:::::::::::::::::::::::::::::::4TH DEFENDANT** 5. **SYEKULU MUTUNGA::::::::::::::::::::::::::::::::::::::::::5TH DEFENDANT** **JUDGEMENT** The amended originating summons application dated 8th May 2023 is brought under Section 8 of the Land Registration Act, Act No.3 of 2012 and Order 37 Rule 8 for the determination of the following questions namely; 1. Whether the County Surveyor Machakos should demarcate and subdivide LR No. Masinga/Masinga/2778 in two (2) equal parts one part in the name of Mutunga Ndive and the other in the name of Muthini Ndive. 2. Whether the Land Registrar Machakos should rectify the Lands Register and register the two parcels of land one in the name of the Plaintiff and the other in the name of Mutunga Ndive. 3. Whether the Lands Registrar Machakos should proceed to issue two (2) Title Deeds respectively for each of the parcels one to the Plaintiff and the other to Mutunga Ndive 4. Whether the Plaintiff should be awarded costs of this matter The summons is supported by the annexed Affidavit of Muthini Ndive and annextures and the Plaintiff by this summons, prays for judgment and orders for; 1. An order directing the County Surveyor to survey and demarcate LR No Masinga/Masinga/2778 into two (2) equal parts and/or plots. 2. An order directing the lands Registrar Machakos to register each of the resultant parcels one in favour of Mutunga Ndive and the other in favour of Muthini Ndive 3. An order directing the 1st Defendant to issue Respective Title deeds to each of the new owners one for the Plaintiff Mutunga Ndive and the other to Muthini Ndive 4. The costs of this motion to be awarded to the Plaintiff This court has considered the evidence and the submissions therein. PW1 testified that the suit land was wrongly registered in joint names with his brother Mutunga Ndive. That he has been informed that it is only the court that can issue orders for his land to be surveyed and issued with a title deed. That the 3rd to 5th Defendants are members of the family of his late brother Mutunga Ndive and have not facilitated the succession process and are holding him hostage. The 3rd and 4th defendants testified and stated that the land belongs to their father and not the Plaintiff. That the Plaintiff never co owned the land with their father and only had cultivation rights. That the title issued in 2015 was erroneous or fraudulent. It is not in dispute that LR No Masinga/Masinga/2778 was adjudicated sometimes in 1993 and the adjudication record dated 9th September 1994 records the land as being held in common undivided equal shares between the plaintiff and his late brother Mutunga Ndive. It is not disputed that on the 15th January 2015 the Land Registrar issued a title deed in both names indicating they owned ½ share each. That the Plaintiff became aware of this only after being issued with the title deed. The 1st and 2nd Defendants stated that the adjudication was completed and no objection was raised the Land Registrar in her sworn affidavit dated 5th June 2024 stated that no grounds for rectification of the title exist and the Plaintiff can only subdivide the jointly owned land. I have perused a copy of the said deed for LR No Masinga/Masinga/2778 and indeed confirm that it is in the name of both the Plaintiff and Mutunga Ndive. It is in evidence that the said Mutunga Ndive is deceased. It is not clear when he died however the 3rd and 4th Defendants are his sons and 5th Defendant his wife. No evidence has been adduced to show they are administrators of the estate of the co-owner of the suit land the late Mutunga Ndive. The 3rd to 5th defendants have no locus standi to be sued. In the case of Alfred Njau & Others vs City Council of Nairobi (1982) KAR 229, the court held as follows; ***“The term locus standi means a right to appear in court and conversely to say that a person has no locus standi means that the has no right to appear or be heard in such and such proceedings.”*** Similarly, in the case of Law Society of Kenya vs Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000, the court held that; ***“Locus standi signifies a right to be heard. A person must have sufficiency of interest to sustain his standing to sue in court of law.”*** In the case of Mumo Matemo vs Trusted Society of Human Rights Alliance & 5 Others, the court stated that while the court should not sanction hurdles to access to justice by restricting the definition of locus standi, it should nevertheless not entertain litigation that is hypothetical, abstract or is an abuse of the judicial process. In the case of Alfred Njau & Others vs City Council of Nairobi (1982) KAR 229, the court held as follows; ***“The term locus standi means a right to appear in court and conversely to say that a person has no locus standi means that the has no right to appear or be heard in such and such proceedings.”*** Similarly, in the case of Law Society of Kenya vs Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000, the court held that; ***“Locus standi signifies a right to be heard. A person must have sufficiency of interest to sustain his standing to sue in court of law.”*** In the case of Mumo Matemo vs Trusted Society of Human Rights Alliance & 5 Others (Supra), the court stated that while the court should not sanction hurdles to access to justice by restricting the definition of locus standi, it should nevertheless not entertain litigation that is hypothetical, abstract or is an abuse of the judicial process. Therefore, locus standi means the right to appear before and be heard in a court of law. Without it, even when a party has a meritorious case, he cannot be heard because of that. Locus standi is so important that in its absence, party has no basis to claim anything before the Court. Be that as it may, the Plaintiff/Applicant seeks substantive orders for the title deed to be cancelled and rectified and this cannot be determined through an application but by way of a plaint. I find this application is misconceived on the preliminary issue and not merited and I dismiss it with no orders as to costs as the parties are relatives. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 29TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**