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ELCAllowedNanyuki ELC Case (application dated 25/10/2023 arising from judgment of 1/11/2022)· [2024] KEELC 5882 (KLR)

Muriuki v Njeru; Njoroge & 2 others (Applicant) (Environment & Land Case 3 of 2021) [2024] KEELC 5882 (KLR)

Environment and Land Court
20 August 2024
2,593 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped evictions of three land buyers who were never part of the original lawsuit, ordering a fresh subdivision that protects their homes and developments.

What this practically means

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Executive summary

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After the Environment and Land Court at Nanyuki delivered judgment on 1/11/2022 directing that Nanyuki/South Timau Block 1/600 (Mia Moja) be shared equally between Ann Wangu Njeru and John Murage Muriuki, and subsequently issued orders on 23/10/2023 for demolition and eviction from Block 1/1048, three purchasers - Charles Bacha Njoroge, Simon Kinyua Theuri and Peter Ndungu Wang'ombe - applied by notice of motion dated 25/10/2023 for stay of those orders, their setting aside, cancellation of the subdivisions and a fresh subdivision factoring in their occupation. They claimed to be innocent purchasers for value of portions from John Murage Muriuki, unaware of the family dispute, and relied on Order 40 Rule 1 of the Civil Procedure Rules, Section 68 of the Civil Procedure Act and Katende v Harida. Ann Wangu Njeru opposed, asserting she had settled on the land since 1990, that the July 2023 exercise was restoration of beacons the Applicants had removed, that the Applicants forcefully evicted her, and that the relief sought would amount to intermeddling with the estate of her late brother contrary to Section 45 of the Law of Succession Act. The court allowed the application: it stayed and set aside the eviction and demolition orders, directed cancellation of the subdivisions and a fresh subdivision accounting for the Applicants' occupation (costs of re-subdivision met by the Applicants and the Plaintiff), and directed that the portions the Applicants occupy be allotted to John Murage Muriuki for transfer to them. Each party was to bear its own costs of the application. Delivered virtually at Nairobi on 20 August 2024 by K. Bor, Judge.

Key legal issues

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01

Whether eviction and demolition orders obtained against non-parties to the suit should be set aside

Holding

Yes. The Applicants were not parties to the suit, had developed the portions they purchased, and stood to suffer loss and harm if evicted; the eviction and demolition orders against them were set aside and stayed.

Reasoning

The court noted the Applicants entered the scene after judgment and were never joined to the suit. The Defendant did not deny they had developed the portions they purchased from the Plaintiff. Because they did not participate in the trial, the court found they would suffer loss and harm if evicted, and held that a fresh survey and subdivision was necessary to bring the dispute to a close while accounting for their occupation.

p. 4
02

Whether the portions bought by the Applicants could be carved from the Defendant's allotted share

Holding

No direct transfer from the Defendant's share was ordered; instead, during the fresh subdivision, the portions occupied by the Applicants are to be allotted to John Murage Muriuki, who will then transfer them to the Applicants.

Reasoning

The Defendant argued that any portion transferable to the Applicants could only come from her late brother's estate after a grant, and that directing her to give them her share would amount to intermeddling contrary to Section 45 of the Law of Succession Act. The court did not disturb the equal-sharing judgment but crafted a subdivision arrangement routing the Applicants' portions through the Plaintiff to avoid prejudicing either side.

p. 5

Legal principles established

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  • Non-parties to a suit who stand to suffer loss from execution orders may seek stay and setting aside of those orders, and a fresh subdivision may be directed to account for their occupation and developments.

Court orders

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  1. 1.Stay of execution of the orders issued on 23/10/2023 for demolition and the eviction of the Applicants from the land known as Nanyuki/South Timau Block 1/1048
  2. 2.The orders of eviction and demolition against the Applicants issued on 23/10/2023 are set aside
  3. 3.Cancellation of the subdivisions of the land known as Nanyuki/South Timau Block 1/600 (Mia Moja) and a fresh subdivision factoring in the occupation and developments by the Applicants, with the costs of re-subdividing met by the Applicants and the Plaintiff
  4. 4.During the subdivision, the portions which the Applicants bought from John Murage Muriuki and which they occupy and have greatly developed should be given to John Murage Muriuki who will in turn transfer those portions to the Applicants
  5. 5.Each party shall bear its costs for the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure ActSection 68
  • Law of Succession ActSection 45

Cases cited (1)

  • Katende v Harida and Company Ltd
Jurisdiction invoked
Inherent powers and Civil Procedure Rules (Order 40 Rule 1) and Section 68 of the Civil Procedure Act invoked by applicants

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muriuki v Njeru; Njoroge & 2 others (Applicant) (Environment & Land Case 3 of 2021) [2024] KEELC 5882 (KLR)", Case Analysis (2024). Nanyuki ELC Case (application dated 25/10/2023 arising from judgment of 1/11/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5882/eng@2024-08-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.