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ELCAllowedNotice of motion dated 23rd August, 2024 (arising from ELC No. 241 of 2017)

Kitulu v Ndolo (Environment and Land Case 241 of 2017) [2025] KEELC 8084 (KLR)

Environment and Land Court
20 November 2025
EOE. O. Obaga
1,743 words in judgment
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The bottom line

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Kenya's Environment and Land Court cancelled land subdivisions made deliberately to block winning plaintiffs from executing their court decree.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Makueni (E. O. Obaga, J) determines a notice of motion dated 23rd August, 2024 in which the Plaintiffs/Applicants sought nullification and cancellation of the subdivision of LR No. 175719 into LR Nos. 1757103 to 1757122 effected on 4th April, 2024, together with costs. The Applicants hold decrees from ELC No. 241 of 2017 (judgment of 19th March, 2018, affirmed by the Court of Appeal on 18th November, 2022) registering them as proprietors of 40 acres by adverse possession. While preparing for execution they discovered the mother title LR No. 17576 had been subdivided into twelve parcels, necessitating amendment of the decrees (allowed on 22nd May, 2024), after which the Respondent subdivided LR No. 175719 into twenty further parcels. The Respondent opposed, arguing the application was premature given a pending appeal (Court of Appeal No. E610 of 2024) and a pending stay application, and that fraud had not been proved. The court framed a single issue: whether the subdivisions arising from LR No. 175719 should be nullified. Holding that the Respondent was aware of the judicially pronounced rights of the Applicants and acted with a determination to frustrate execution, the court held the subdivisions could not be allowed to stand, and that strict proof of fraud was unnecessary in these interlocutory circumstances. The application was allowed in terms of prayers 2, 3 and 4, with costs to the Plaintiffs.

Key legal issues

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01

Whether subdivisions arising from LR No. 175719 should be nullified

Holding

Yes - the subdivisions effected on 4th April, 2024 were intended to frustrate execution of decrees affirmed up to the Court of Appeal and are nullified.

Reasoning

The Applicants hold decrees, affirmed by the Court of Appeal on 18th November, 2022, to 40 acres by adverse possession. After amendment of the decrees to reflect LR No. 175719, the Respondent subdivided that parcel into twenty subdivisions on 4th April, 2024. The court found the Respondent was aware of the judicially pronounced rights of the Applicants and acted with intent to frustrate execution, not once but twice.

p. 4
02

Whether fraud must be proved for the nullification

Holding

No - this was not a trial to prove fraud; the demonstrated mischief of repeated subdivision to defeat execution sufficed.

Reasoning

The Respondent argued, citing Vijay Morjaria, that fraud must be specifically pleaded and distinctly proved. The court held this was misplaced because the application was not a hearing in which the Applicants were seeking to prove fraud; they had demonstrated the Respondent's mischief in repeatedly subdividing the land to frustrate execution.

p. 4

Legal principles established

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  • Subdivisions effected with the intention of defeating a decree or a litigant's established interests cannot be allowed to stand.
  • A pending appeal or stay application against an ancillary ruling does not bar the court from preventing a party from frustrating execution.

Court orders

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  1. 1.A declaration that the subdivision of LR No. 175719 and the subsequent registration of LR Nos. 1757103 to 1757122 and any further subdivision thereof was fraudulent, illegal, null and void
  2. 2.Cancellation/revocation of the subdivisions of LR No. 175719 and the subsequent registrations of LR Nos. 1757103 to 1757122 effected on 4th April, 2024, including any deed plans processed for the said subdivisions
  3. 3.Costs of the application awarded to the Plaintiffs
Jurisdiction invoked
Section 80(1) of the Land Registration Act

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, "Kitulu v Ndolo (Environment and Land Case 241 of 2017) [2025] KEELC 8084 (KLR)", Case Analysis (2025). Notice of motion dated 23rd August, 2024 (arising from ELC No. 241 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8084/eng@2025-11-20

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