Nyaga & 5 others (Suing on their behalf and as officials, on behalf of Mathari Villagers’ Self Help Project'S Membership) v Registered Trustees Catholiс Archdiocese of Nyeri (Environment and Land Case 119 of 2013) [2026] KEELC 3011 (KLR) (14 May 2026) (Ruling)

Nyaga & 5 others (Suing on their behalf and as officials, on behalf of Mathari Villagers’ Self Help Project'S Membership) v Registered Trustees Catholiс Archdiocese of Nyeri (Environment and Land Case 119 of 2013) [2026] KEELC 3011 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 3011 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Case 119 of 2013 EK Makori, J May 14, 2026 Between Tarcisio Nyaga & 5 others & 5 others & 5 others & 5 others & 5 others Plaintiff Suing on their behalf and as officials, on behalf of Mathari Villagers’ Self Help Project'S Membership and The Registered Trustees Catholiс Archdiocese Of Nyeri Defendant Ruling 1.The applicants filed a Notice of Motion dated 23rd October 2025 seeking the following orders:i.That the application herein be certified urgent and be heard exparte.ii.That this honourable Court do issue vesting orders for all that property comprised in the orders of the Court dated 18/11/2021.iii.That the respondent and or their agents be barred from interfering with the survey of land composed in 2 above.iv.That the Honourable Court be pleased to Order the OCS Kamakwa Police station to provide security during the effectuation of the orders of 18/11/2021, and specifically to offer security to M/s P.M Gichoho Ngugi, surveyor and his agents during the survey exercise.v.That costs be provided for. 2.The application is supported by the affidavit of the 1st Applicant, who deposed that he is the chairman of the Mathari Self-Help group. 3.That by an order by consent of the parties dated 31/5/2018, the defendants were to excise 600 acres and the same be granted to the plaintiffs within six (6) months of the Order. 4.Consequently, upon resistance and reluctance to do as bidden by the consent order, the Court issued further orders on 18/11/2021. 5.The respondents herein appealed against the orders of 18/11/2021 to the Court of Appeal vide Court Appeal 43 of 2022, but the appeal was struck out with costs on 28th February, 2025, by the Court of Appeal. 6.The surveyor went to complete the survey works on the suit property, but was forcefully ejected by the defendant and its security agents. The Applicant states that he tried in vain to engage the respondent to have the excision done, but they would not heed to the same. 7.It is their prayer that the matter has dragged on for decades and that the orders sought would provide closure to the dispute. The Respondent’s Replying Affidavit 8.Father David Mutahi, swore an affidavit in response to the application on behalf of the Respondent, accusing the Applicants of having approached this Honourable Court with unclean hands and have deliberately failed to disclose material facts, particularly the existence of Nyeri ELC Petition No. 205 of 2014 (Original Petition No. 14 of 2013)//// filed on 17th October 2013, involving over 400 Petitioners and other Interested Parties, all claiming the same parcels of land as ancestral land. 9.That on 5th November 2014, this court in ELC Petition No. 205 of 2014 (Original Petition No. 14 of 2013) issued interim and conservatory orders, together with directions preserving the suit properties pending judgment, which orders remain valid, binding, and enforceable to date, as some of the Applicants herein are Petitioners and/or beneficiaries in that suit. 10.Thus, they contend that any act purporting to survey, excise, vest, transfer, or otherwise alter the status of the suit properties without leave of the court seized of the Petition would amount to a direct violation of subsisting conservatory orders and would expose the parties involved to contempt of court proceedings. 11.While the Respondent admitted that a consent was recorded on 31st May 2018, they contend that:i.The consent was entered into without the participation of third-party claimants whose interests were already before the court;ii.The consent has since become incapable of implementation due to supervening constitutional litigation;iii.Material circumstances have fundamentally changed, rendering strict enforcement unjust and unlawful. 12.That the Applicants cannot rely on a consent to defeat constitutional claims or to override conservatory orders issued by a court of competent jurisdiction. 13.On the allegations of obstruction, the Respondent denies unlawfully preventing or obstructing any surveyor, stating that any resistance encountered arose from occupiers and petitioners asserting rights under the pending Petition and in obedience to subsisting court orders, rather than from any unlawful act by the Respondent. 14.The Respondent’s case is that the Applicants are improperly using the striking out of the appeal as a sword rather than a shield, in an attempt to fast-track irreversible acts before delivery of judgment in ELC Petition No. 205 of 2014 (Original Petition No. 14 of 2013) and prayed that it be dismissed with costs. The Applicants’ Written Submissions 15.It was submitted by Counsel that the Applicants herein bought and occupied the 600 acres herein from the respondents in the 1970s. They had been pursuing the title deeds to no avail, leading to the suit herein. 16.That judgment by consent of the parties was entered as indicated, which has not been set aside or appealed against. 17.Regarding the issue that the Respondent has raised, the existence of orders from this Court in Petition ELC NO—205 of 2014. However, as per the record, the respondent herein filed an application dated 23/7/2014 seeking to consolidate this matter with the aforesaid petition, which was opposed, and the application was withdrawn on 25/3/2015. It is their submission that an order granted in another matter cannot constitute a stay in another matter where the parties have voluntarily appeared before the Court and recorded a consent order, noting that no stay was granted by this Court or the Court of Appeal. 18.The Applicants concluded that litigation must come to an end and the judgment creditors must be allowed to enjoy the fruits of their judgment and prayed for the application to be allowed. The Respondent’s Written Submissions 19Counsel for the Respondent submits that the Application is legally untenable because it invites this Honourable Court to authorize steps that would alter the preserved state of the suit property, pre-empt a pending judgment in Nyeri ELC Petition No. 205 of 2014 and expose litigants as well as public officers to contempt consequences, highlighting that the Applicants, being parties to Petition No. 205 of 2014 are fully aware of the conservatory preservation orders therein 20.Their submission is that this application offends the rule of sub-judice, provided for by Section 6 of the Civil Procedure Act. They accused the Applicant’s Motion of being a strategic maneuver aimed at obtaining, through another procedural route, what would effectively amount to a final practical advantage before the main Petition court renders its judgment and relied on the authority in Board of Governors, Moi High School, Kabarak & another v Bell & 2 others [2013] KESC 12 (KLR), 21.The Respondent’s view is that absence of a stay in one file does not extinguish preservation orders in another live file involving the same property and parties, because the law does not allow parties to select whichever order is convenient while disregarding the order that restrains them, relying on the holding of the Supreme Court in Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR). 22.Further, they submit that allowing the instant application would render parties to be in contempt of Court, and relied on the following cases:i.Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR)ii.Basil Criticos v Attorney General & 8 others & 4 others [2012] KEHC 1480 (KLR) 23.Regarding the prayer for police supervision, they submit that police involvement would intimidate occupiers and litigants protected by conservatory orders, and it would force public officers into executing steps whose legality is doubtful, given the pending Petition judgment and the status quo preservation, and prayed that the instant application be dismissed with costs. Analysis and Determination 24.The Applicants herein seek vesting orders for all that property comprised in the orders of the Court dated 18/11/2021. The said order reads as follows:a.That the application dated 14th March 2019 by the defendants has failed and is dismissed with costs.b.That the plaintiffs' application dated 22nd January, 2019, be and is hereby allowed in its entirety;c.That Messrs P.N Gichoho Ngugi, licensed surveyor, be and is hereby authorized by this Honourable Court to excise 600 acres from parcels noted in the consent order dated 20th June, 2018, as follows:L.R 11943/2 - 9.088 НаL.R 1105/6- 13.42 HаL.R 1105/5 - 97.41 HaL.R 9464/2 - 53.62 Ha;and a further L.R 9464/2- 69.21 Had.That the executive officer and/or the Deputy Registrar is hereby allowed to sign all the deeds required to effectuate the transfer of 600 acres to the Plaintiffs herein;e.That the Land Registrar is hereby ordered to dispense with both the production of the original of Titles while transferring the 600 acres to thef.That the Respondent/Defendant bear the costs of the survey and this application. 25.The said orders were appealed, but the Court of Appeal struck out the appeal for being an incompetent appeal. Thus, the aforesaid orders of this Court still stand. 26.A vesting order is an order that may be granted to transfer ownership of property without the need for the traditional land process, in lieu of a conveyance. The provision for this in Kenyan law is found in Section 98 of the Civil Procedure Act, Cap 21, which provides as follows:“Where any person neglects or refuses to comply with a decree or order directing him to execute any conveyance, contract or other document, or to endorse any negotiable instrument, the court may, on such terms and conditions, if any, as it may determine, order that the conveyance, contract or other document shall be executed or that the negotiable instrument shall be endorsed by such person as the court may nominate for that purpose, and a conveyance, contract, document or instrument so executed or endorsed shall operate and be for all purposes available as if it had been executed or endorsed by the person originally directed to execute or endorse it.” 27.However, the Respondent herein argues and contends that conservatory orders were issued in Nyeri ELC Petition No. 205 of 2014, and that granting the orders sought would expose litigants as well as public officers to contempt consequences, highlighting that the Applicants, being parties to Petition No. 205 of 2014, are fully aware of the conservatory preservation orders therein. 28.The Respondent exhibited in their Replying Affidavit marked as “DM 2” is a copy of the said orders dated 5th of November 2014, issued in ELC Petition 205 of 2014 which Order number 2 reads that; a conservatory order is issued restraining the respondents by themselves, their agents, servants, workers from leasing, selling and/or dealing in any manner with all those plots of land known as 1356, 4166, 4167, 9463 and 9464 Nyeri pending the hearing and determination of this application. I note that only LR 9464 appears in both cases. 29.Indeed, Courts should refrain from issuing contradictory orders, and it is for this reason that the rules of sub judice and res judicata exist. However, in the present case, the suit property is the subject of dispute in two files. 30.In Geoffrey M Asanyo and 3 others v The Attorney General (2020), the Supreme Court held that:“There is need for fidelity to the principle of stare decisis, a bearing that ensures that Judges reach substantially the same legal conclusions that were reached in previous cases, when considering similar legal issues: this creates certainty, clarity, predictability and legitimacy within the law.” 31.The applicants have made a good case for allowing the pending application, which has merit. But since we have a pending Petition involving the same suit property, I will direct that we stay the current application and that it be activated immediately upon the judgment in Nyeri ELC Petition No. 205 of 2014. 32.I have taken this cautious move to prevent an outcome that could lead to chaos and confusion, given the conflicting orders in place. 33.Costs in the cause. RULING DATED, SIGNED, AND DELIVERED AT NYERI THIS 14TH DAY OF MAY 2026.____________________________E. K. MAKORIJUDGEIn the presence of:Mr. Karweru for the ApplicantMr.Kibe for the RespondentKendi: Court Assistant