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

3. That this honourable court be pleased to order that the subdivisions of the LR Nos. 175719 and the subsequent registration of LR Nos. 1757103, 1757104, 1757105, 1757106, 1757107, 1757108, 1757109, 1757110, 1757111, 1757112, 1757113, 1757114, 1757115, 1757116, 1757117, 1757118, 1757119, 1757120, 1757121, 1757122 all efiected on 4th April, 2024 and including any deed plans processed for the said subdivisions be cancelledrevoked. 4. That the costs of this application be awarded to the Plaintifis. Background 2. The Applicants had obtained a judgment in their favour in ELC No. 241 of 2017 on 19th March, 2018 where the court granted the following reliefs: a. That this honourable court do direct that the Plaintifi be registered as the proprietor of all that 40 acres portion of LR No. 17576 (formerly LR No. 17577 (hereinafter “the suit property”) by reason of adverse possession. b. That a permanent injunction do issue to restrain the Defendant, by herself, her agents andor servants from trespassing into, alienating, or in any manner interfering with the plaintifi’s use and enjoyment of the suit property. c. That an order do issue directing the Registrar of Titles andor the National Land Commission to excise out 40 acres comprising the suit property out of title No. 17576 registered in the name of the Defendant and to transfer the same to the Plaintifi herein. d. That in the alternative, the Deputy Registrar, Environment and Land Court Makueni be and is hereby authorized to sign the transfer in favour of the Plaintifis in default of execution by the Defendant. e. Costs of the suit to the Plaintifi. 3. The Plaintifi engaged the services of Akala Indetie in order to get subdivision approvals and issuance of new title deeds in the Plaintifis’ names. 4. In a bid to defeat execution, the DefendantRespondent secretly subdivided LR No. 17576 into LR No. 175719 to 30 thus rendering the mother title No. 17576 nonexistent. 5. Upon searching the mother title, the Applicants discovered that their entitlement as per the judgment fell within LR No. 175719. The Applicants then filed an application dated 26th April, 2023 for amendment of the decrees to refiect the new number that is LR No. 175719. This application was allowed on 22nd May, 2024. 6. After a successful amendment of the decrees, it was again discovered that the Respondent had yet again subdivided LR No. 175719 into LR Nos.1757103 to 122. Applicant’s Contention 7. The Applicants contend that it is necessary for the subdivisions arising from LR 175719 to be nullified so that the Land Registrar can implement the amended decrees. 8. The Applicants state that the court has powers under Section 80(1) of the Land Registration Act to nullify the subdivisions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8084/eng@2025-11-20 2

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Respondent’s Contention 9. The Respondent opposed the Applicants’ application based on a replying afidavit sworn on 22nd March, 2025. The Respondent contends that he Applicants’ application and the intended execution is premature as the subject matter of the suit has never been conclusively determined. 10. The Respondent contends that the ruling which allowed the amendment of the decree is the subject of Court of Appeal No. E610 of 2024 which is still pending a decision and that if the appeal were to succeed this will cause a miscarriage of justice if this application is allowed. The Respondent also states that there is pending application dated 20th August, 2024 before this court which seeks stay of execution of the ruling pending determination of the appeal before the Court of Appeal. 11. The Respondent contends that the fraud attributed to him in this application has not been proved and that the particulars of the alleged fraud have not been established and that therefore cancellation ought not to be based on scanty evidence given the gravity of the accusations against him. 12. The Respondent blames the Applicants for not registering a caveat against the titles to prevent what they are complaining about and prays that in the interest of justice, the Applicants’ application should be dismissed. Parties submissions 13. The parties were directed to file written submissions. The Applicants filed their submissions dated 16th May, 2025. The Respondent filed his submissions dated 30th June, 2025. 14. The Applicants submitted that the subdivisions were solely meant for purposes of defeating the execution process. They submitted that the subdivisions were done after the Environment and Land court had allowed an amendment to refiect the correct LR No. for purposes of execution. They relied on the case of Solomon –vs- Agalo & 3 others (2023) KEELC 16627 (KLR) where it was held as follows: “ ....But in so far as the conversation of LR No. 21161264 to Kitale Municipality Block 672 was made following a payment accepted on 27th April, 2001 (see folio 81 of P. Exhibit 18(b) and the certificate of lease issued on 28th June, 2001 during the pendency of Kitale SPMCC No. 96 of 1995 which was withdrawn in 2002, is against the doctrine of lis pendens”. 15. The Applicants also relied on the case of Sheila Kabole Mabwa –vs- Joshua Ang’elei & 3 Others (2018) KEELC 402 (KLR ) where it was held as follows: “ This court cannot rule out the possibility that the Plaintifi became aware of the Defendant’s plans and decided to pull the rug from under the Defendant’s feet. The deeming of the originating summons to be fatal for the reason of subsequent subdivision of the land may give room for mischief in many other cases involving other litigants out there. It is contrary to public policy to encourage a loophole of this nature through which the Plaintifi can technically avoid the Defendants’ rightful legal claim. For this reason I am of the view that the very fact that the land was subdivided is not fatal to the originating summons”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8084/eng@2025-11-20 3

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16. The Respondent submitted that the fraud alleged by the Applicants had not been proved. He relied on the case of Vijay Morjaria –vs- Nanshigh Madhusingh Darbar & Another (2000) EKLR where it was held as follows: “ It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts”. 17. The Respondent submitted that the court should also consider that there is a pending appeal before the Court of Appeal touching on the ruling which allowed the amendment of the decrees. Analysis and Determination 18. I have carefully considered the Applicant’s application as well as the opposition to the same by the Respondent. The only issue for determination is whether there should be nullification of the subdivisions which arose from LR No. 175719. 19. In answering this issue, it is important to have the background of this matter in mind. The Applicants obtained a judgment in their favour on 19th March, 2018. The Respondent appealed the judgment to the Court of Appeal. The appeal was dismissed on 18th November, 2022. The judgment of both the Environment and Land Court and the Court of Appeal was based on LR No. 17576. When the Applicants started the process of extraction of decree for purposes of execution, it was discovered that the mother title had been subdivided into 12 subtitles that is LR No. 175719 to 30. It was established that the portions which had been decreed in favour of the Applicant fell on LR No. 175719. 20. The Applicants had to make an application for amendment of the decrees to refiect the title under which their portions fell. This application was allowed on 22nd May, 2024. As the Applicants commenced the execution process, it was discovered that the Respondent had on 4th April, 2024 subdivided LR No. 175719 into LR Nos. 1757103 to 122. 21. The Respondent was aware that both the Environment and Land Court as well as the Court of Appeal had pronounced themselves as to the rights of the Applicants. It is therefore clear that the intention of the Respondent was made to frustrate the process of execution which he seems to be determined to do. As was held in the case of Sheila Kabole Mabwa (Supra) such subdivisions which are intended to defeat interests of the Applicants cannot be allowed to stand. 22. The Respondent is aware that the Environment and Land Court judgment was afirmed by the Court of Appeal. This notwithstanding, the Respondent has gone ahead to not only seek to frustrate execution not once but twice. The Respondent cannot be allowed to do this and blame the Applicants for not being vigilant to register cautions to prevent such subdivisions. 23. The fact that there is a pending appeal from the ruling of 22nd May, 2024 which allowed the amendment of the decree coupled with an application pending before this court for stay of that ruling pending appeal cannot stop this court from allowing this application to put a stop to what clearly appears a determination by the Respondent to frustrate execution. 24. The Respondent’s submissions that fraud has not been proved is misplaced. This is not a hearing which the Applicants are seeking to prove. The Applicants have demonstrated that the Respondent is upto some mischief by keeping on subdividing the land to frustrate execution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8084/eng@2025-11-20 4

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Disposition 25. I find that the Applicants’ application dated 23rd August, 2024 is well merited. I allow it in terms of prayers 2, 3 and 4. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 20TH DAY OF NOVEMBER, 2025. ................................................. HON. E. O. OBAGA JUDGE In The Presence Of: Mr. Mbindyo for Applicants. Ms. Jematia for Mr. Ndalila for Respondent. Court assistant - Nelima https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8084/eng@2025-11-20 5

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