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ELCPartially AllowedEmbu SRMCC No. 105 of 1990 (related applications dated 30/1/2024 and 20/3/2024)· [2025] KEELC 3721 (KLR)

Kivuana & 2 others v Njagi & another; Joseph & 6 others (Interested Parties) (Environment and Land Appeal 6A of 2017) [2025] KEELC 3721 (KLR)

Environment and Land Court
30 April 2025
KBK. BOR
1,800 words in judgment
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The bottom line

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Kenya's Environment and Land Court ordered a fresh ground survey of subdivided family land so each occupant gets the portion they actually use.

What this practically means

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Executive summary

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The Environment and Land Court at Embu (K. Bor, J) determined two applications arising from a land distribution matter concerning Evurore/Nguthi/1964, whose subdivision produced parcels Evurore/Nguthi/4563 to 4584. The 1st Respondent sought amendment of orders of 29/11/2023 to cite the resultant parcels, to facilitate registration, pursuant to a decree of 20/2/2020 mandating him to supervise subdivision. The 2nd Respondent, supported by the 1st and 2nd Interested Parties, opposed, contending the land was clan land subdivided into 22 unequal portions without disclosure of beneficiaries or basis for the unequal sizes. By a notice of motion dated 20/3/2024, the 2nd Respondent sought a stay of transfer, disclosure of intended transferees, and a ground ascertainment exercise by the County Surveyor and Land Registrar, Mbeere North, followed by amendment of the mutation to reflect pre-subdivision occupation. The court declined the 1st Respondent's application, holding that its adjudicatory role was concluded by the judgment and it could not supervise execution, referring parties to the Attorney General under Article 156(4)(a). The 2nd Respondent's application was allowed in part: the County Surveyor and Land Registrar were directed to visit the suit land within 60 days and ascertain the actual acreage, current occupation of each beneficiary, and whether the subdivision aligns with occupation; the mutation is to be amended so each member receives the portion occupied and utilised prior to subdivision; each party may have their own surveyor in attendance; and a stay of transfer was issued against the 1st Respondent pending completion of the exercise. Each party bears their own costs. Delivered virtually at Embu on 30 April 2025.

Key legal issues

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01

Whether the court should amend its orders of 29/11/2023 to cite the mutated parcels

Holding

The application dated 30/1/2024 was declined because judgment had already been entered and the court cannot supervise execution; parties were directed to seek advice from the Attorney General

Reasoning

The court noted that the 1st Respondent and beneficiaries had already obtained a judgment entitling them to the suit land. With the adjudicatory function concluded, the court held it could not be called upon to further supervise execution, and referred parties to the Attorney General under Article 156(4)(a) for any further advice.

p. 3
02

Whether the subdivision should be stayed and ground acreages ascertained

Holding

A stay of transfer issued and the County Surveyor and Land Registrar were directed to ascertain the ground position and amend the mutation so each member gets the portion they occupied

Reasoning

The 2nd Respondent and Interested Parties showed the subdivision into 22 unequal portions failed to reflect occupation and boundaries on the ground. The court balanced this against the 1st Respondent's supervisory role, allowing the application only to the extent of an on-the-ground ascertainment exercise with party surveyors in attendance, coupled with a stay of transfer pending completion.

p. 4

Legal principles established

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  • A court's role ends with adjudication; it cannot be called upon to supervise execution of its judgment further

Court orders

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  1. 1.The application dated 30/1/2024 by the 1st Respondent seeking amendment of the orders of 29/11/2023 is declined
  2. 2.The 2nd Respondent's application dated 20/3/2024 is allowed to the extent that the County Surveyor and Land Registrar, Mbeere North, are directed to visit the suit land Evurore/Nguthi/1964 within 60 days and ascertain the actual acreage on the ground, the portions currently occupied by each beneficiary, and whether the subdivision of Evurore/Nguthi/4563-4584 aligns with current occupation
  3. 3.The mutation for land parcel Evurore/Nguthi/1964 be amended to allow each member to get the portion he or she occupied and utilized prior to the subdivision
  4. 4.Each party at liberty to have their own surveyors in attendance during the exercise
  5. 5.An order of stay restraining the 1st Respondent from transferring or interfering with Evurore/Nguthi/4563-4584 pending finalization of the exercise
  6. 6.Each party to bear their own costs for the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 156(4)(a)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcels Evurore/Nguthi/1964 and resultant subdivisions; reference to Article 156(4)(a) of the Constitution on the Attorney General's advisory role

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, "Kivuana & 2 others v Njagi & another; Joseph & 6 others (Interested Parties) (Environment and Land Appeal 6A of 2017) [2025] KEELC 3721 (KLR)", Case Analysis (2025). Embu SRMCC No. 105 of 1990 (related applications dated 30/1/2024 and 20/3/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3721/eng@2025-04-30

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