https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3704

Njoroge & another v Gikanga & 3 others (Environment and Land Case E205 of 2024) [2026] KEELC 3704 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3704 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Case E205 of 2024 JA Mogeni, J June 17, 2026 Between Alice Njeri Njoroge 1st Applicant Beth Nyakio Njoroge 2nd Applicant and Stephen Muiruri Gikanga 1st Respondent John Gitiba Gikanga 2nd Respondent David Kageche Gikanga 3rd Respondent Land Registrar Kiambu 4th Respondent Ruling 1.I am writing a ruling in respect of the Notice of Motion Application dated 23/09/2025 brought under Order 51 Rule 1, Order 8 Rule 3 of the Civil Procedure Rules 2010 and Sections 3A and 63(e) of the Civil Procedure Act) seeking the following prayers:1.That this Honourable Court be so pleased to allow the Applicant to amend his statement of Defence and the Land Registrar Kiambu be brought on board vide an amendment.2.That this Honourable Court be pleased to compel and/or order the Land Registrar Kiambu herein to avail the following documents to the Applicant before the hearing of this case slated on 14th October 2025:a.Application for consent from the Land Control Board Githunguri Sub-county.b.Consent from the Land Control Board to transfer Land Githunguri/Githiga/240, 1005, 6187, 6188.c.Transferred documents for land parcels number Githunguri/Githiga/240, 1005, 6187, 6188.3.That the Applicant be allowed further documents more particularly in respect of the wanton destruction made on the suit land on 6th August 2025 on land parcel Number Githunguri/Githiga/6187.4.That costs of this application be provided for in any event. 2.Which application is based on the following grounds among others and supported by the Annexed Affidavit of Stephen Muiruri Gikanga:a.That the Applicant filed his statement of defence on 22nd January 2025.b.That the Applicants based their statement of defence on issue of fraud and illegal ownership of land parcel Number Githunguri/Githiga/6187.c.That the fraud in question devolves around land parcel number Githunguri/Githiga/240, 1005, 6187, 6188.d.That the subdivision and subsequent issuance of title deed were taken without consent of the Applicant.e.That on 6th August 2025 the Respondents engaged on wanton destruction on suit property and destroyed trees and subsistence crops which led this Honourable Court to issue stay orders dated 12th August 2025.f.That in light of the foregoing it is only vital that the Land Registrar Kiambu is brought on board vide an amendment.g.That the amendment in question is necessary towards expediating this suit.h.That it is hence vital that the prayers sought are granted.i.Any other ground. 3.The Applicant, Stephen Muiruri Gikanga, deposes in his Supporting Affidavit that he is a beneficiary of the estate of the late Gikanga Kageche, the original proprietor of the land parcels known as Githunguri/Githiga/240, 1005, 6187, and 6188. He has attached a bundle of ownership documents marked SMG '1' to substantiate the deceased’s interest in the said suit properties. 4.The Applicant’s primary grievance is rooted in allegations of fraud and the illegal alienation of the estate's land. He contends that the Respondents surreptitiously obtained title deeds by presenting documents that falsely suggested a sale transaction between the Applicant’s late father and the Respondents' late husband. He further avers that no beneficiary of the estate was privy to or witnessed any such sale agreement or transfer, rendering the entire transaction suspect. 5.To bolster his claim of ongoing prejudice, the Applicant points to an incident on 6/08/2025, where the Respondents allegedly engaged in the wanton destruction of trees and subsistence crops on the suit land. This led to the issuance of stay orders by the Honourable Court on 12/08/2025. In support of this claim, he has annexed a valuation report from the Githiga Ward Agricultural Officer, marked SMG '2', detailing the extent of the malicious damage. 6.The deponent further states that subsequent searches at the Land Registry and an assessment of the green card annexed as SMG '3' have unearthed clear evidence of fraudulent dealings. Consequently, the Applicant maintains that it is procedurally paramount to amend his Statement of Defence and join the Land Registrar, Kiambu, as a party to the suit to properly ventilate these issues. A draft of the proposed Amended Statement of Defence is annexed and marked SMG '4'. 7.Ultimately, the Applicant expresses a well-founded apprehension that the estate stands to lose its lawful inheritance unless the Court intervenes and grants the prayers sought in the application. 8.The Application is opposed vide the jointly sworn Replying Affidavit dated 11/11/2025 by the Respondents in which they depose that the application is a frivolous afterthought, a blatant abuse of the Court process, and a dilatory tactic designed to prolong the Applicant's illegal occupation of the suit property. 9.The Respondents clarify the root of the dispute by stating that the original parcel, Githunguri/Githiga/1005, was co-owned by the late Francis N. Mucheru and the late Gikanga Gachagwi. Following the demise of Francis N. Mucheru, the Respondents obtained a Grant of Representation in Succession Cause No. 1326 of 2001 which is attached as Annexure ANN1. They further acknowledge that the administrators of Gikanga Gachagwi's estate also held a Grant issued in 1987 as attached as Annexure ANN2. 10.A significant portion of the affidavit details the litigious history of the matter. The Respondents aver that after the Applicant’s side refused to execute transmission documents, they obtained a Court order on 10/02/2023 as attached as Annexure ANN3 allowing the Deputy Registrar to sign the forms on their behalf. They further point out that the Applicant’s previous attempts to challenge the validity of the land transfer and allege fraud have consistently failed; specifically, ELC Case No. 848 of 2016 (formerly HCCC No. 2963 of 1991) was dismissed for want of prosecution as per Annexure ANN4), as was a subsequent suit, ELC Case No. E007 of 2021. 11.The Respondents contend that the current application to amend the Defence is an attempt to re-litigate issues of fraud and title cancellation that have already been settled or abandoned in previous suits. They highlight a contradiction in the Applicant’s position, noting that while the Applicant seeks to cancel titles for Githunguri/Githiga/6187 and 6188, they are simultaneously seeking a share of the same land in Githunguri Misc. Succession Cause No. E059 of 2025 as per Annexure ANN5. 12.The Respondents maintain that the Applicant lacks the locus standi to seek the prayers sought and that the application is merely a strategy to frustrate the Respondents' enjoyment of their property. Consequently, they pray that the Honourable Court dismisses the application with costs. 13.On 26/02/2026 when the parties appeared in Court they agreed to canvass the Application by way of written submissions. The Applicant filed their submissions dated 24/12/2025 and the Respondents filed theirs dated 23/02/2026. I have summarized the submissions herebelow. Applicant’s Submissions 14.The Applicant, in moving the Court through written submissions in support of the Motion dated 23/09/2025, implores this Honourable Court to exercise its discretion under Order 8 Rule 3 of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act to permit the amendment of the Statement of Defence and the joinder of the Land Registrar, Kiambu, as a necessary party to these proceedings. 15.It is the Applicant’s submission that at the heart of this dispute is the alleged fraudulent subdivision and transfer of Githunguri/Githiga/1005 into parcels 6187 and 6188, an act the Applicant contends was a clandestine scheme carried out in collusion with the Registrar to disinherit the lawful beneficiaries. He further submits that the purported transfer documents are of questionable origin and that in matters of land fraud, files are often surreptitiously hidden to mask the evil prints of the perpetrators. 16.That by seeking to compel the production of Land Control Board consents and transfer records under Section 63(e) of the Civil Procedure Act, the Applicant aims to unearth the truth behind the divergent official searches and the wanton destruction of property that occurred on 6th August 2025. Relying on the persuasive authority of James Toroitich Kisa vs. Josephine Njuguna Musa & Another [2013] eKLR (ELC No. 125 of 2013), the Applicant reminds the Court that where a green card is tainted by fraudulent entries, the resulting titles must be cancelled to meet the ends of justice. Ultimately, the Applicant beseeches the Court to look past the technicalities and allow the application so that the Land Registrar may be brought to account, ensuring the substratum of the estate's inheritance is not permanently lost to a fraudulent enterprise. Respondents’ Submissions 17.Through their written submissions, the Plaintiffs/Respondents, oppose the Application contending primarily that the Applicants lack the requisite locus standi to seek the prayers on the face of the application. The Respondents submit that the Applicants are neither the registered proprietors of Land Parcel No. Githunguri/Githiga/6187 nor the legal representatives of the estate of Gikanga Gachagwi; therefore, they possess no legal capacity to challenge a historical transaction concluded during the deceaseds' lifetimes. Relying on the precedent set in Moses Bii vs. Kericho District Land Registrar & Another [2014] eKLR (ELC Case No. 5 of 2014), the Respondents argue that while the land was originally held in common, the respective shares of the late Francis N. Mucheru and Gikanga Gachagwi vested in their distinct estates upon their demise. It is the Respondents' position that the Applicants are attempting to double-dip by seeking a share of their father’s legitimate portion in Githunguri Misc. Succession Cause No. E059 of 2025 regarding parcel 6188, while simultaneously asserting a baseless claim over the Respondents' parcel 6187. 18.Furthermore, the Respondents assert that the Applicants are mere trespassers whose continued occupation of the suit property is both illegal and in bad faith. Invoking the sanctity of title under Section 26(1) of the Land Registration Act, 2012, the Respondents maintain that their certificate of title is absolute and indefeasible evidence of ownership, which the Applicants have failed to impeach with any credible evidence of fraud or illegality. 19.The Respondents further characterize themselves as bona fide purchasers for value without notice, echoing the principles adopted in Zebak Limited vs. Nadem Enterprises [2016] eKLR, which necessitates holding a valid certificate of title and purchasing in good faith. They submit that the current application is a tactical maneuver to prolong an unlawful stay on the land, causing the Respondents continued loss and damage. Consequently, the Respondents implore the Court to find that the Applicants have not come with clean hands and pray for the dismissal of the application with costs to ensure the finality of the succession and transfer processes. 20.The 3rd Defendant did not file any response to the Application nor written submissions. I have however considered the pleadings filed and written submissions. Analysis and Determination 21.The key issues for determination in this application are threefold:1.Whether the Applicant has established sufficient cause to warrant an amendment of his Statement of Defence and the joinder of the Land Registrar, Kiambu, as a party to the suit;2.Whether the Court should compel the Land Registrar to avail specified documents before the hearing; and3.Whether the Applicant possesses the requisite locus standi to mount any of the prayers sought. 22.The law on amendment of pleadings is well settled. Order 8 Rule 3 of the Civil Procedure Rules 2010 confers upon the Court a wide discretion to allow amendments at any stage of the proceedings, and the overriding principle is that amendments ought to be freely granted so long as they serve the ends of justice and do not occasion prejudice to the opposing party that cannot be remedied by an award of costs. The Supreme Court of Kenya in Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR pronounced itself to the effect that the overriding objective of the Civil Procedure Act mandates Courts to facilitate the just, expeditious, and affordable resolution of disputes, and that procedural technicalities should not be allowed to defeat substantive justice. It is against this backdrop that the amendment and joinder prayers must be assessed. 23.Article 159(2) of the Constitution of Kenya 2010 provides a broad constitutional framework of principles to guide our Courts in the administration of justice. In my view, this broad constitutional framework is what should be the basic guide to a Court face with any legal question. Indeed, in seeking to answer the question as to whether or not a party should be enjoined in an on-going litigation, Article 159 should be the first reference guide. The ultimate finding of the Court should resonate with and be in tandem with the letter and broad spirit of Article 159 (2) of the Constitution. 24.So on the question of joinder and the production of documents, the Applicant contends that the Land Registrar, Kiambu, is a necessary party whose presence is indispensable for the proper ventilation of the fraud allegations. This Court is guided by the principle espoused in Civicon Limited Vs Kivuwatt Limited & 2 Others [2015] eKLR where the Court of Appeal discussed and settled the guiding principles on the question of joinder under Order 1 Rule 10 and observed as follows:“Again the power given under the Rules is discretionary, which discretion must of necessity be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined.”…………………….From the foregoing, it may be concluded that being a discretionary order, the Court may allow the joinder of a party as a Defendant in a suit based on the general principles set out in Order 1 Rule 10(2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the Plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.” 25.In Central Kenya Ltd Vs Trust Bank Ltd & Others CA No. 222 of 1998 the Court of Appeal held that;“the paramount consideration is whether the party concerned is necessary for the effectual and complete adjudication of all the questions involved in the suit.” 26.The Learned Authors of Sarkar’s Code of Civil Procedure (11th Ed. Reprint, 2011, Vol 1. Page 887) have shade light on how a legal provision equivalent to Order 1 Rule 10(2) should be interpreted. They have observed thus:-“The section should be interpreted liberally and widely and should not be restricted merely to the parties involved in the suit, but all persons necessary for a complete adjudication should be made parties.” 27.The allegation that the subdivision of Githunguri/Githiga/1005 into parcels 6187 and 6188 was executed without lawful consent and in collusion with registry officials raises triable issues touching on the integrity of the register itself. In James Toroitich Kisa v Josephine Njuguna Musa & Another [2013] eKLR, Munyao J. (as he then was) observed that“where a green card is tainted by fraudulent entries, the resulting titles must be cancelled to meet the ends of justice,"which signals that the Court's enquiry must necessarily extend to the acts and records of the Land Registry. 28.The production of Land Control Board consents and transfer records under Section 63(e) of the Civil Procedure Act is equally justified at this interlocutory stage, as these are documents that lie peculiarly within the custody of a public officer and are central to determining whether the transfers were lawfully conducted. 29.The Respondents' opposition, anchored heavily on the indefeasibility of title under Section 26(1) of the Land Registration Act, 2012 and the principle in Zebak Limited v Nadem Enterprises [2016] eKLR regarding bona fide purchasers for value, is not without merit but is premature at this stage. The question of whether the Respondents are indeed bona fide proprietors whose titles are beyond impeachment is precisely the substantive question reserved for trial upon a full hearing on the merits. The Court of Appeal in Munyu Maina v Hiram Gathiha Maina [2013] eKLR cautioned that;“the question of whether a title is indefeasible is a matter to be determined at the conclusion of a fully contested hearing with all necessary parties before the Court," and it would be injudicious to foreclose that enquiry at the interlocutory stage. 30.The Respondents' assertion of res judicata founded on the dismissal of ELC Case No. 848 of 2016 and ELC Case No. E007 of 2021 for want of prosecution does not extinguish the fraud allegation entirely, as a dismissal for want of prosecution is not a decision on the merits capable of founding a plea of res judicata under Section 7 of the Civil Procedure Act. 31.On the question of locus standi, the Respondents argue that the Applicant has no legal standing as he is neither a registered proprietor nor a duly appointed administrator of the estate of the late Gikanga Gachagwi. This Court notes the tension in the Applicant's position, as highlighted by the Respondents, namely that he simultaneously seeks cancellation of title to parcel 6187 in this suit while claiming a share of parcel 6188 in Githunguri Misc. Succession Cause No. E059 of 2025. 32.That notwithstanding, a beneficiary of a deceased's estate has a recognised interest in protecting the estate's assets from dissipation, even before formal letters of administration are extracted, as was acknowledged in Marigi vs. Muriuki & 2 Others [2008] 1 KLR 1073 (Civil Appeal No. 189 of 1996) where the Court recognised the equitable interest of estate beneficiaries in pending succession proceedings. Disposal Orders 33.Having weighed the totality of the material placed before this Court, this Court finds and orders as follows:i.Prayer 1 is hereby allowed; the Applicant shall file and serve the Amended Statement of Defence, together with the joinder of the Land Registrar, Kiambu, as a party, within twenty-one (21) days from the date of this Ruling.ii.Prayer 2 is equally allowed; the Land Registrar, Kiambu, is hereby directed to avail to the Applicant and to this Court the Land Control Board consents and transfer documents relating to Githunguri/Githiga/240, 1005, 6187, and 6188, within fourteen (14) days of service of this Order upon the Land Registrar.iii.Prayer 3 is allowed to the extent that the Applicant shall be at liberty to plead and adduce evidence of the alleged destruction of 6/08/2025 in the Amended Defence.iv.PTC on 14/07/2026v.Costs of this application shall be in the cause.Orders Accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 17TH DAY OF JUNE, 2026.………………………MOGENI JJUDGEIn the presence of:1st and 2nd Plaintiffs – Absent1st, 2nd and 3rd Defendants – AbsentMr. Motari for the 4th DefendantMs. Lillian - Court Assistant