https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2995

Commissioner of Lands v Heirs of ohe Late Wambugu Mathangani Family, Annah Wanjiru Mathangani & 100 others (Miscellaneous Civil Application 9 of 2009) [2026] KEELC 2995 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2995 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Miscellaneous Civil Application 9 of 2009 EK Makori, J May 14, 2026 Between The Commissioner of Lands Applicant and The Heirs of ohe Late Wambugu Mathangani Family, Annah Wanjiru Mathangani & 100 others & 100 others & 100 others & 100 others & 100 others Respondent Ruling 1.Before this Court is an Application filed by the Applicants pursuant to Notice of Motion dated January 15, 2025, seeking the following Orders:a.Spent.b.The Court be pleased to confirm the beneficiaries’ consent to the mode of distribution of funds.c.The Court be pleased to confirm the firm of Joan Emma Advocates as the beneficiaries’ Advocates in the matter.d.This Court does grant such other or further orders as it deems appropriate in the interests of expediency and justice. 2.The Application is supported by the affidavit of Charles Wachira Kariuki, who deposed that he is a family representative of the Late Chief Wambugu Mathangani and is authorized to swear the supporting affidavit on the Applicant’s behalf. 3.He deposed that on September 23, 2015, this Court delivered a judgment in HCCC 9 of 2009 regarding compensation for the compulsory acquisition of L.R. No. Aguthi/Gatitu/3447, which belonged to the late Chief Wambugu Mathangani. 4.The compensation sum was determined to be KES.145,595,750 by the Commissioner of Lands on December 16, 2007, and was deposited in Court. 5.That the family representatives have convened at numerous family meetings with the beneficiaries, and there has been unanimous consent regarding the list of beneficiaries and the mode of distribution of the compensation funds, with 35 beneficiaries in total. 6.That on September 23, 2015, the Court set aside KES 8,500,000/= as compensation for the settlement of counsel fees. 7.A further KES 1,500,000/= was agreed, with the consent of the beneficiaries, to be used for the maintenance of the deceased’s grave, and that amount is to be held in trust by Joan Emma Advocates. 8.The balance thereof is to be distributed among all 35 beneficiaries, 16 of whom have already submitted their bank account details. 9.He deposes that the prolonged withholding of the funds has caused unnecessary hardship to the beneficiaries and is causing anxiety because the said beneficiaries have died without having benefited from the said sum. 10.That the Applicants undertake to abide by any further directions issued by this Honorable Court to ensure the efficient administration of the estate and the equitable distribution of the funds. 11.Peter Mwangi Muthoni swore an affidavit in response to the instant application on February 24, 2025. He deposed that the Applicant, the deponent of the supporting affidavit, is neither a listed interested party in this matter, nor has he disclosed the name of the household he comes from, nor the name of the Deceased's child (his deceased parent), in respect of whose estate he is claiming, nor has he attached any proof as a personal representative or administrator to establish locus standi. 12.That his proposal is contrary to the terms of the judgment itself, as it is a scrutiny, review, and rewriting of the judgment, and that the Applicant cannot usurp the power and authority of this Honorable Court. 13.He contends that the Application is merely a guise and a mischievous attempt to mislead this Honor Court into sitting on appeal of its own decision, thereby departing from that decision and leading to unintended consequences that travesty justice. 14.In response to the Deponent’s statement that the beneficiaries have held meetings and unanimously agreed, he denied that the Applicant has ever invited the 99th and 100th Respondents to any such meetings, nor has the Applicant given any notice, even by way of advertisement in the print media, inviting interested parties to attend such meetings. 15.He also denied that the Respondents have appointed the Applicant or anyone as their representatives in this matter. He stated that they wish the Honorable Court to pay their rightful shares of the monies directly to them. 16.His view is that the solution to the issue at hand is that this Honorable Court should require all the rightful beneficiaries on the said list (DEX 20B), as well as the seven (7) Firms of Advocates, to furnish this Honorable Court with copies of their respective national identity cards and bank details, and that the Deputy Registrar oversee the Cash Office in processing payment of the money directly into the bank accounts of the individual heirs and counsel by Electronic Funds Transfer (E.F.T.) and/or Real Time Gross Settlement (R.T.G.S.), as the case may be. 17.Finally, he expressed that after many years of awaiting payment, the rightful and/or genuine beneficiaries and interested parties feel completely worn out by the inexplicable post-judgment delay. 18.The firm of Wanyiri Kihoro Advocates, which also claims to represent the beneficiaries of Wambugu Mathangani, filed Grounds of Opposition dated 17th February 2025 in response to the instant application. 19.They oppose the application because there is a certificate of beneficial ownership of the land, signed on December 12, 2007, in which the claimants appeared in person after a gazette inquiry was issued on February 23, 2007. 20.They also contend that the applicants have not identified the procedural and legal basis for their application or explained why they are seeking a second inquiry after the official inquiry was held. They further state that the judgment established the beneficiaries, found no heirs or trustees, and that the list remains unchallenged to date. 21.Further, it is contended that the judgment in ELCA No. 1 of 2017 awarded Ksh. 230,000,000 as full compensation for the acquisition of the 35 beneficiaries, and that the Land Act provides for full and just compensation in the event of any obstruction. 22.Mr. Wanyiri Kinyoro, Advocate, also denied knowledge of any direction in which the Court assumed money management responsibility of any kind or took control, and rejected any dispute regarding the payment of about Kshs. 8.5 million to the 11 advocates awarded the sum by Ombwayo J., stating that the firm of Joan Emma Advocates was not awarded any because it was not involved in the case, and disputed that it represents any of the beneficiaries. They contend that they have been the firm that has dealt with the matter since 2007, after the inquiry, including the inspections and valuations, the preparation of the Decree as per the Judgment and bill of costs, and prayed that the instant application be dismissed. 23.In addition to these grounds of opposition, the firm of Wahome Gikonyo & Company also filed Grounds of opposition to the instant application on 6th May 2025, opposing the said application on the following grounds:a.The application is misconceived and incompetentb.The application is bad in law, a gross abuse of the process of the Court, and untenable.c.The application is fatally and incurably defective.d.The application is frivolous and vexatious.e.The application is otherwise without merit and should be dismissed with costs. The Applicants’ submissions 24.Counsel for the Applicant filed written submissions and relied on the case of Delphis Bank Ltd v Channan Singh Chatthe & 6 others [2005] KECA 297 (KLR), in which the Court stated that the most important constitutional right is for a litigant to have legal representation or an advocate of his choice. 25.They submit that by including a prayer for the firm of Joan Emma Advocates to be confirmed as the Advocates of the beneficiaries in the present application, the incoming Advocates comply with one of the ways an advocate can effect a post-judgment change of advocates under Order 9 Rule 9 of the Civil Procedure Rules. 26.It was highlighted that none of the outgoing Advocates has presented an affidavit from any applicant or household stating that they have not appointed the incoming Advocates to act on their behalf. The available Replying Affidavit is that sworn by Peter Muthoni, Advocate, contrary to the requirement that advocates should not swear affidavits on contentious matters, thereby offending Order 19 Rule 3 of the Civil Procedure Rules. They submit that the same should be struck out. 27.Their position is that the application clearly seeks post-judgment relief in the form of release of funds held in court and is not a reopening of litigation. The court is invited to find that none of the outgoing Advocates applied for release of funds held in court since the delivery of judgment, and that the applicants have instructed the incoming Advocates to execute such applications. Declining the order for change of Advocates in these circumstances will be tantamount to perpetuating the current exclusion from the funds held in court. 28.Counsel concluded that, to this end, it is submitted that the applicants, through their incoming advocates, have established a basis for a change in legal representation. This Honorable Court is invited to uphold the applicants' right to an advocate of choice by confirming the firm of Joan Emma Advocates as their advocates of record, thereby allowing them to ventilate the question of the release of funds that have been held in court for over ten years since the conclusion of the case by delivery of judgment. Analysis and determination 29.The instant application seeks several prayers, which I will list as the issues for determination here below:a.Should the firm of Joan Emma Advocates be granted leave to come on record for the beneficiaries, who are the respondents herein?b.Should the Court confirm the beneficiaries' consent to the mode of distribution of funds and release the funds into their accounts? a. Should the firm of Joan Emma Advocates be granted leave to come on record for the beneficiaries, who are the respondents herein? 30.Judgment in this matter was entered on September 23, 2025. The firm of Joan Emma Advocates now seeks leave to represent the Respondents/Applicants herein, who are the beneficiaries of the late Chief Wambugu Mathangani (Deceased), whose land, L.R. No. The government compulsorily acquired Aguthi/Gatitu/3447. 31.This prayer is pursuant to Order 9, Rule 9 of the Civil Procedure Rules, which provides that:“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.” 32.There is no record of prior advocates from Joan Emma Advocates giving consent for their involvement with the beneficiaries in this case. The advocates, Peter M Muthoni, Wanyiri Kinyoro, and Wahome Gikonyo, all opposed any change of representation, asserting that the supporting affidavit's deponent, Charles Wachira Kariuki, is unfamiliar to them and is not listed among the confirmed beneficiaries for compensation. 33.Thus, it will not be possible to grant leave to the firm of Joan Emma Advocates to come on record for all the beneficiaries as prayed for, given that advocates have already been representing them since the inception of this matter. Accordingly, that prayer is declined. b. Should the Court confirm the beneficiaries' consent to the mode of distribution of funds and release the funds into their accounts? 34.Judgment in this matter was delivered on the 23rd of September 2015, in which this Court decided that the persons identified as interested parties are those who appeared before the inquiry and before this Court, and that the compensation would be distributed in equal shares among the households of the deceased's wives, and that the deceased beneficiaries' share would devolve to their children or grandchildren, as identified. 35.The aforesaid inquiry was conducted by the then Commissioner of Lands, pursuant to Gazette Notice No. 1467, published on 23rd February 2007, which invited all persons interested in the Wambugu Farmers Training Center land to a hearing on compensation following the compulsory acquisition of the land. The Commissioner of Lands then filed High Court Case No. 9 of 2009, which gave rise to the judgment in issue herein. 36.This mandate was given to the Commissioner of Lands pursuant to the Land Acquisition Act (Repealed), which provided that:“1)The Commissioner may at any time of his own accord, by application in the prescribed form, refer to the Court for its determination any question as to-(a)the construction, validity or effect of any instrument;(b)the persons who are interested in the land concerned;(c)the extent or nature of their interest;(d)the persons to whom compensation is to be paid to tenants in common;(e)the shares in which compensation is to be paid to tenants in common;(f)the question whether or not any part of a building is reasonably required for the full and unimpaired use of the building; or(g)the condition of any land at the expiration of the term for which it is occupied or used.(2)Without prejudice to the powers of the Court under this Part, the costs of any reference to the Court under subsection (1) shall be paid by such person as the Court may direct or, failing a direction, by the Commissioner. 37.The mandate to determine matters of compulsory acquisition was delegated to the National Land Commission, established under Article 67 of the Constitution. Article 67(1)(a) and (h) provide that:“There is established the National Land Commission.(2)The functions of the National Land Commission are--a.to manage public land on behalf of the national and county governments;(h)to monitor and have oversight responsibilities over land use planning throughout the country.” 38.In addition, Section 107 of the Land Act CAP 280 provides that:“Whenever the national or county government is satisfied that it may be necessary to acquire some particular land under section 110, the respective Cabinet Secretary or the County Executive Committee Member shall submit a request for acquisition of land to the Commission to acquire the land on its behalf.” 39.Thus, following the promulgation of the 2010 Constitution, the duty of the Commissioner for Lands is to be handled by the National Land Commission. The court in the case of Patrick Musimba v National Land Commission & 4 others (2016) eKLR summarized the process of compulsory acquisition and observed as follows;“Under Section 107 of the Land Act, the National Land Commission (the 1st Respondent herein) is ordinarily prompted by the national or county government through the Cabinet Secretary or County Executive member respectively. The land must be acquired for a public purpose or in public interest as dictated by Article 40(3) of the Constitution. In our view, the threshold must be met: the reason for the acquisition must not be remote or fanciful. The National Land Commission needs to be satisfied in these respects and this it can do by undertaking the necessary diligent inquiries including interviewing the body intending to acquire the property…... On completion of the inquiry the National Land Commission makes a separate award of compensation for every person determined to be interested in the land and then offers compensation. The compensation may take either of the two forms prescribed. It could be a monetary award. It could also be land in lieu of the monetary award, if land of equivalent value, is available. Once the award is accepted, it must be promptly paid by the National Land Commission. Where it is not accepted then the payment is to be made into a special compensation account held by the National Land Commission: see Sections 113- 119 of the Land Act. 40.It cannot be gainsaid that this matter is long overdue in Court, given that the beneficiaries have been kept waiting far too long for their full and just compensation for L.R. No. Aguthi/Gatitu/3447, as required by Article 40(3)(b)(i) of the Constitution of Kenya. 41.The current application seeks to rewrite and review what has already been determined, and that the distribution should be made in accordance with the Court's judgment and findings by the NLC. 42.Consequently, the entire application is dismissed with costs. RULING DATED, SIGNED, AND DELIVERED AT NYERI THIS 14TH DAY OF MAY 2026.E. K. MAKORIIn the presence of:Mr. Pamba for the ApplicantsMr. Wanyiri, Gikonyo, Nderi, Ms. Wachira, for the RespondentsKendi: Court Assistant