Kibe & another v Lemeiruko & another; Gakumo (Interested Party) ((Suing As The Legal Representative Of The Estate Danson Gakumo Kihoro)) (Environment & Land Case 802 of 2024 & 63 of 2019 (Consolidated)) [2025] KEELC 600 (KLR)

The court held that documents filed after the Plaintiffs had closed their case on 3/10/2022 were inadmissible, since they should have been filed before trial. However, some of the documents had already been produced by the Interested Party as exhibits or formed part of the court record, and title deeds and official searches had been filed earlier, so they were otherwise properly on record.

The tribunal proceedings concerned Kidira Gakumo Kihara, not Gakumo Kihoro. The decree dated 2/10/2019 was issued after Gakumo Kihoro died on 18-6-2010, so the 1st Defendant was effectively litigating against a dead party. Such orders were held to be unfair and not binding on the deceased or his heirs, undermining the 1st Defendant's res judicata-type defence.

The court found that the real dispute between the parties concerned the boundary between the 1st Defendant's father's land and that of the Interested Party's husband, which no District Land Registrar had conclusively determined. Existence or non-existence of land on the ground is a surveying and registration issue outside the court's jurisdiction. The matter was therefore referred back to the Land Registrar to conclude the exercise in the report dated 15-9-2020, with an appeal lying to the court under Regulation 40(6).

The District Land Registrar reported on 12/9/2018 that the family of the late Patrick Ole Maragula denied his team access citing trespass, warning the ground would turn violent. The 1st Defendant identified himself as administrator of that estate. The court found it was the 1st Defendant's family that used violence to resist a lawful exercise and that his impunity was responsible for the more than seven-year delay, justifying an adverse costs order against him.