https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4210

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELC MISC APPLICATION NO.E002 OF 2024** **JONATHAN KIMARI WARUINGI………………………1ST APPLICANT** **AGNES WAITHERA GUANDARU……………….………2ND APPLICANT** **PETER GACHARA GACHINA..…………………………3RD APPLICANT** **GLADYS KANUTHU MAIRO……………………………..4TH APPLICANT** **JOSEPH NGATIA MUTURI………………………….……5TH APPLICANT** **-VERSUS-** **THE LAND REGISTRAR NYERI……………………….1ST RESPONDENT** **JUDGMENT** 1. The applicants herein filed an Amended Notice of Motion dated 17th September 2024 seeking the following orders: 2. **THAT the Respondent registers the order of the Court of Appeal dated 17th** **October 2014.** 3. **THAT the Respondent stops the registration of transfers, subdivision, charging and/or any other dealings in all resultant parcels from LR No.3381.** 4. **THAT the costs of this application be provided for** 5. The Application is supported by the affidavit of the 1st Applicant, in which he deposed that he and his co-applicants were raised on LR No. 3381 and that some are occupants by virtue of inheritance from their parents, who were initially members of Satima Peak Farmers Ltd, and others by virtue of purchasing share certificates from the initial members. 6. They were all aware that there was an ongoing case, **HCCC Case Number 62 of 1985**, over LR. 3381, which was decided on July 22, 2009. An appeal in Civil Appeal Number 18 of 2010 was filed, and the decision set aside the Judgment delivered on July 22, 2009, and, among other orders, directed that anyone with a claim over LR 3381 should bring a fresh suit. 7. However, following the ruling in **HCCC Case Number 62 of 1985** on 22 July 2009, the respondents in that case proceeded promptly to the land offices to process titles based on the correspondence dated 11 December 1992. This letter from the Ministry of Lands purportedly closed the register of LR 3381, assigned a new block number (Mwinyogo/Labura Block 2 (Mukoe)), and facilitated its subdivision into 198 parcels. According to the deponent, this decision was subsequently overturned, rendering any actions taken pursuant to the aforementioned judgment null and void. 8. A suit was instituted as directed by the Court of Appeal, known as Nyeri ELC 80 of 2015. However, upon institution, the court was not brought to the attention of the processed title deeds in the sequence Mwinyogo/Labura Block 2 (Mukoe), and those deeds have continued to be in operation, being transferred, charged, and subdivided. 9. The Deponent states that efforts to register the order at the Lands Office in Nyeri have been futile and that, should the court not direct the registration of the order in **Nyeri Court of Appeal 18 of 2010**, the final finding in **Nyeri ELC No. 80 of 2015** could be rendered nugatory and difficult to enforce. 10. There is yet another suit in which the Deponent deposed that, based on the illegal titles, he, together with Agnes Waithira Guandaru, Peter Gachara Gachina, Peter Kahiga Thuku, Gladys Kanuthua Mairo, and Joseph Ngatia Muturi, all occupants of L.R. No. 3381, were sued in Nyeri Chief Magistrate's ELC Case No. 78 of 2018 and accused of being illegal occupants of Mwinyogo/Labura Block 2 (Mukoe). The suit was decided on 25th November 2023, and it was ordered that they vacate the properties and pay the costs of the suit. They did not have an Advocate in the suit and did not understand why they were being sued, even though the ongoing suit **ELC 80 of 2015** was still pending. 11. They preferred an appeal to the **Nyeri Environment and Land Court, Appeal No. 36 of 2019**, from the decision of the Chief Magistrate’s Court, but their appeal was dismissed. 12. The Applicants are apprehensive and fearful that the Plaintiffs in Nyeri **Chief Magistrates ELC Suit No. 78 of 2018** and **Nyeri Environment and Land Court Appeal No. 36 of 2019**, respectively, may proceed to execute the eviction order, leaving them landless and homeless, as they have settled and made developments on the said LR No. 3381. If this court does not direct the Lands Registrar to register the order, they shall suffer great loss. 13. It is their prayer that should this court not curb the operation of Land Title Numbers Mwinyogo Labura Block 2 (Mukoe) (parcels 1-198), its final findings might be rendered nugatory and very difficult to execute, and innocent purchasers and parties dealing with the said titles might suffer irreparable damages and losses. 14. The Land Registrar, the Respondent named herein, did not respond to the application, and the applicants did not file written submissions. **Analysis and determination** 1. The Applicants herein have filed an application praying that the Land Registrar stop the registration of transfers, subdivisions, charges, and/or any other dealings in all resultant parcels from LR No. 3381. 2. The Application is supported by the affidavit of the 1st Applicant, in which he deposed that he and his co-applicants were raised on LR No. 3381 and that some of them are occupants by virtue of inheritance from their parents, who were initially members of Satima Peak Farmers Ltd, and others by virtue of the purchase of share certificates from the initial members. 3. This matter has been the subject of various suits named by the Applicants, including **Civil Appeal 18 of 2012**, which arose from **HCCC 62 of 1985, ELC 80 of 2015**, and **Chief Magistrate's ELC Case No. 78 of 2018**. They apprehend that the decision in those cases will result in their eviction from their properties. 4. However, this is only a miscellaneous application and not a substantive suit; therefore, I think that such substantive orders as sought herein can only be granted in a main suit. They seek that the Land Registrar effect the decision of the **Court of Appeal in Civil Appeal 18 of 2010,** which only the Court that gave the orders can execute. 5. As held in the case of **National Social Security Fund v Sokomani Limited & others [2021] eKLR**, Okongo J, while holding that the Environment and Land Court has supervisory jurisdiction, stated as follows: ***"Where or if the court intends to exercise supervisory jurisdiction under the Constitution, I think the following safeguards should be observed;*** 1. ***A balance has to be struck in the exercise of constitutional supervisory jurisdiction to ensure there is no appearance that its object is to micro-manage the trial court’s independence in the court and management of its proceedings…….”*** 2. Similarly, Okong’o J reiterated in the case of **Simon Mayaka v. Land Registrar Kisii Others (2013) KEHC 3540 (KLR)** that: ***“In my view, section 89 of the Civil Procedure Act mainly extends the application of the civil procedure rules as relates to suits to other proceedings before courts exercising civil jurisdiction where applicable. Although the marginal note to that section has the words “miscellaneous proceedings”, the section does not state that any particular suit may be brought by way of a miscellaneous application. The section provides that civil procedure rules relating to suits may be applied where appropriate to other proceedings before courts exercising civil jurisdiction even where such proceedings cannot be strictly referred to as a suit. These are the proceedings which in my view are referred to as miscellaneous proceedings in the said marginal note. The section therefore acknowledges miscellaneous proceedings and extends the civil procedure rules relating to suits to them where applicable but falls short of clearly coming out as being the source of such proceedings. As rightly observed by my brother Justice Munyao Sila in the case of Joseph Kibowen Chemjor –vs William K. Kisera [2013]eKLR, miscellaneous applications have been used in practice mostly for moving the court where facts are not contested and private rights of the parties are not up for determination like where violation of public law rights are being advocated or the discretion of the court is being sought or where a procedural issue or step is sought to be endorsed. The relief to be sought in such application must be one that does not settle any private rights or obligations of the parties. It follows therefore that where there is a dispute as to private rights of the parties which the court is to be called upon to determine, such dispute cannot be brought to court by way of a miscellaneous application. A claimant in such a dispute must institute a suit by way of a Plaint or where it is authorized by the rules, by way of Originating Summons or by any other acceptable procedure for initiating such a suit. Does the applicant’s suit herein fall under such suits which can be originated by way of a miscellaneous application as described above? I don’t think so. The applicant is seeking the nullification and cancellation of titles registered under the Registered Land Act, Cap. 300 Laws of Kenya (now repealed).”*** 1. Therefore, I find that the orders sought cannot be granted in this miscellaneous application but only in a substantive suit. This application is an abuse of the court process and is vexatious because it seeks to gag competent courts from proceeding with matters before them. 2. The Misc. Application is hereby dismissed with costs. **Dated, signed, and delivered virtually at Nyeri on this 1st day of July 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **The 4th Defendant's Representative** **Denis - Court Assistant** **In the absence of:** **All the other parties and their counsels.**