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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 3616 (KLR)

Thuita v Gitonga & another (Environment and Land Case 442 of 2014) [2026] KEELC 3616 (KLR)

Environment and Land Court
10 June 2026
4,616 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyeri court ordered an occupant evicted from disputed land, but ruled the property belongs to the deceased's estate — not the administrator suing personally.

What this practically means

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Executive summary

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Two applications were before the Environment and Land Court at Nyeri. The substituted plaintiff, Joseph Nderitu Thuita, sought eviction of the 1st defendant Benard Kimathi Gitonga following the court's judgment of 15th May 2025 cancelling L.R Thegenge/Kihora/761 and 762 and reverting the land to L.R Thegenge/Kihora/128, plus an order to the Land Registrar to register the land in his own name and that of the 2nd defendant as joint owners. The 1st defendant opposed, arguing the decree had not been attached or served, and sought review of the judgment and a retrial, contending the decree wrongly vested the property in the substituted plaintiff rather than the deceased original plaintiff, Muchemi Mutune. The 2nd defendant supported review only to correct the decree. The court framed four issues and granted the eviction order, holding that a successful party is entitled to the fruits of judgment; the 1st defendant is to vacate within 90 days of service of the extracted decree, failing which forcible eviction with police assistance follows. The plaintiff's prayer for registration in his own name was refused as mischievous, since he held only a limited grant ad litem. Review was granted limited to correcting the decree so the land reverts to Muchemi Mutune (Deceased) and the 2nd defendant as joint owners. The retrial prayer was declined as attacking the merits, a matter for appeal, applying the finality principle. Both applications attracted no order as to costs.

Key legal issues

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01

Eviction to enforce a decree

Holding

An eviction order against the 1st Defendant was warranted because the suit land is no longer registered in his name, and the order facilitates realization of the court's decree

Reasoning

The court held that a successful party is entitled to the fruits of judgment, citing Machira and Republic v Town Clerk of Webuye. Since title L.R Thegenge/Kihora/761 was cancelled and reverted to the mother title, the 1st Defendant's continued occupation thwarted enforcement. A supplementary eviction order advances the decree and access to justice, with police oversight authorized to enforce compliance.

p. 6
02

Registration of substituted plaintiff in place of deceased owner

Holding

The decree must be corrected so that the land reverts to Muchemi Mutune (Deceased) and the 2nd Defendant, not the substituted plaintiff

Reasoning

The substituted plaintiff held only letters of administration ad litem, a limited grant that does not confer full powers of administration. His substitution in the decree was an error on the face of the record, since no succession proceedings or rectification had transferred proprietary rights to him. Review under Section 80 and Order 45 was therefore granted to correct the decree's wording.

p. 7
03

Retrial sought through review

Holding

Retrial cannot be granted on review where the complaint goes to the merits of the judgment

Reasoning

The 1st Defendant argued the judgment partially implemented a Tribunal award it had declared void, creating ambiguity. The court held this attacks the merits rather than disclosing an error apparent on the record, and falls outside the grounds for review under Order 45. Relying on Benjoh Amalgamated and the finality principle, the court held such issues are more suited to an appeal and declined the retrial prayer.

p. 9

Legal principles established

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  • A substituted plaintiff with only ad litem capacity does not acquire proprietary rights in the deceased's suit property; devolution of such title must occur through succession proceedings
  • Review cannot be used to reopen the merits of a decided case; such complaints are matters for appeal

Court orders

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  1. 1.An eviction order issued against the 1st Defendant/Respondent Benard Kimathi Gitonga for refusing to give vacant possession in accordance with the orders of 26th May 2025
  2. 2.A decree to be extracted and served on the 1st defendant, who should vacate the suit premises 90 days after service
  3. 3.Upon failure to comply, forcible eviction to ensue with the assistance of the O.C.S. Ndugamano police station
  4. 4.No order as to costs on the Notice of Motion dated 10th June 2025
  5. 5.The firm of Ms. Muthoni Muhoro advocates allowed to come on record formally for the 1st defendant/applicant
  6. 6.The registration of land no. L.R Thegenge/Kihora/761 and 762 cancelled, and the land reverts to its prior status as L.R Thegenge/Kihora/128, in the names of the Muchemi Mutune (Deceased) (and not the Plaintiff) and the 2nd Defendant as joint owners
  7. 7.A declaration that the Land Dispute Tribunal lacked jurisdiction to entertain a matter involving an issue of title deed
  8. 8.Other orders sought in the 1st Defendant's motion declined; no order as to costs
Jurisdiction invoked
Original civil suit jurisdiction of the Environment and Land Court; review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010

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, "Thuita v Gitonga & another (Environment and Land Case 442 of 2014) [2026] KEELC 3616 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3616/eng@2026-06-10

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