Njagi v Mwathi & 5 others (Environment and Land Case E026 of 2022) [2026] KEELC 1962 (KLR)

Objection No. 320 of 1983- Gatumo Kiricho v Ireri Mugoiyo; Objection No. 789 of 1983 – Ireri Mugoiyo v Henry Njagi Njogu; Objection No. 341 of 1983 – Laban Mwangi Gicheha v Ireri Mugoiyo; Objection No. 148 of 1983 – Henry Njagi Njogu v Ireri Mugoiyo; and Objection No. 321 of 1983 – Henry Njagi Njogu v Elias Muturi Kombo. These objections lodged at Kirima Adjudication Section were consolidated and heard together. According to the Plaintifi, the outcome of these objections was the finding made on 25/9/1987 that the suit land belonged to Henry Njagi Njogu and that he bought the suit land from Ireri Mugoiyo. 3. The Plaintifi pleaded that Gatumu Kiricho filed Siakago RMCC No. 62 of 1980 against Ireri Mugoiyo claiming Kshs. 1,000/= being the value of 5 goats and a gourd of honey which he claimed to have paid to Ireri Mugoiyo as the purchase price for the suit land. The suit was dismissed on 20/1/1981. After Gatumu Kiricho was awarded the suit land by the Unit Committee, he subdivided it into 3 portions which were designated as parcel nos. 554, 2217 and 2243. 4. In 2000, Gatumu Kiricho filed Minister’s Land Appeal No. 239 of 2000 against Henry Njagi Njogu, this was 13 years after the decision was made in the objection cases on 25/9/1987. 5. The Plaintifi pleaded that Gatumu Kiricho did not dispute the fact that Mbeere/Kirima/2217 and 2243 were excised from parcel no. 554 in Kirima Adjudication Section and that Mbeere/Kirima/2217 and 2243 were registered in the name of Henry Njagi Njogu on 23/1/2004, upon conclusion of land adjudication and demarcation. Title deeds for these parcels were issued to Henry Njagi Njogu on 6/12/2006. The suit land was registered in Henry Njagi Njogu’s name on 30/10/2008 and a title deed was issued to him on 19/2/2010. It was averred that Henry Njagi Njogu started occupying and utilizing the suit land in 1973 and by the time the suit was filed, seven of his sons and widows of his two sons were occupying and utilizing the suit land which they had extensively developed. 6. Minister’s Land Appeal No. 239 of 2000 was heard and on 10/12/2018, with the Minister for Lands represented by the Deputy County Commissioner (DCC) for Mbeere South Sub-county, who awarded the suit land to Gatumu Kiricho represented by the 1st Defendant since Gatumu Kiricho died in 2006. The Plaintifi argued that the Minister’s decision was based on irrelevant considerations and that it was filed 13 years after the decision in the objection cases was made on 25/9/1987. Following this, the 3rd and 4th Defendant cancelled Henry Njagi Njogu’s name from the register and inserted Gatumu Kiricho’s name as proprietor of the suit land. The Plaintifi filed this suit claiming the suit land on behalf of the estate of the late Henry Njagi Njogu. 7. The Plaintifi sought an order to quash and set aside the decision of the Minister for Lands dated 10/12/2018 in Minister’s Land Appeal No. 239 of 2000 in Kirima Adjudication Section Mbeere South Sub-County, Embu County. He sought a declaration that the suit land lawfully belonged to the estate of Late Henry Njagi Njogu (Njagi). He sought to have Gatumu Kiricho’s (Gatumu) name or the 1st Defendant’s name cancelled from the register for the suit land or its subdivisions so that Henry Njagi Njogu’s name could be reinstated in the register to pave way for succession proceedings and distribution of the suit land among the beneficiaries of his estate. He also sought a permanent injunction to restrain the 1st Defendant and the successors of Gatumu Kiricho from entering, occupying, utilizing or sub dividing the suit land. 8. The 1st Defendant denied the Plaintifi’s claim in his statement of defence dated 23/5/2023. He averred that he was clearly awarded the suit land after due process was followed under the Land Adjudication Act. He averred that through this suit, the Plaintifi seeks to challenge the merits of the decision of the Minister yet that decision was final in accordance with the law. The 1st Defendant added that the suit was an afterthought for the Plaintifi’s father never disputed the decision yet it was delivered when he was still alive. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1962/eng@2026-02-25 2

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9. The suit was heard on 3/6/2025 when the Plaintifi gave evidence. He adopted his witness statement, setting out the facts as pleaded in the plaint. He produced copies of the letters of administration over the estate of Henry Njagi Njogu issued on 22/3/2021, certificate of death, agreements between Henry Njagi Njogu and Ireri Mugoiyo (Ireri) dated 27/8/1971, proceedings and the decision of the Unit Committee in Case No. 76 of 1973 Kirima Adjudication Section. He also produced the proceedings and decision in Appeal No. 43 of 1973 Kirima Adjudication Section as well as copies of title deeds for Mbeere/Kirima/2217 and 2243 and the suit land. 10. The Plaintifi tendered in evidence the proceedings and decisions in Objection Case Numbers 320, 341, 789, 148 and 321 of 1983. He produced copies of the land adjudication record, register for the suit land and oficial search of the suit land. The other documents produced were the proceedings and decisions in Minister’s Land Appeal No. 239 of 2000, photographs of the development of the suit land and a certified copy of the land register of the suit land. On cross-examination, he told the court that his father died on 26/6/2020. 11. The 1st Defendant, Eustace Kariuki Mwathi gave evidence. He told the court that the process that led to the Minister’s decision was in accordance with the law laid down in the Land Adjudication Act. He argued that the Plaintifi had not demonstrated any illegality in the Minister’s decision. He contended that the Plaintifi illegally acquired the suit land and that the Minister properly considered the evidence before awarding the land to Gatumu Kiricho. He pointed out that the Minister made a finding that the Plaintifi failed to call the witnesses he had listed to testify in support of his claim. He reiterated that the Minister’s decision was final and could not be challenged through a fresh suit. The 1st Defendant maintained that the appeal before the Minister was filed within time. The 1st Defendant produced the proceedings of the appeal to the Minister in Appeal No. 239 of 2000 which has the verdict at the end. 12. On cross-examination, he conceded that Ireri sold the suit land to Gatumu and later to Njagi. He maintained that when Njagi bought the land there were claims to it. He told the court that he was representing Gatumu who was his elder father because Gatumu’s children could not pursue the claim. He stated that there was no agreement between Gatumu and Ireri Mugoiyo. 13. The 1st Defendant called Benjamin Nyaga to give evidence. Mr. Nyaga told the court that he was aware that Gatumu Kiricho bought the suit land from Ireri Mugoiyo after following due process. He urged that the Plaintifi was attempting to appeal against the Minister’s decision through the back door. He stated on cross-examination that there was no agreement between Ireri Mugoiyo and Gatumu but maintained that the land was sold according to Kimbeere culture and that the elders went round the land and planted stones to confirm its boundaries. He stated that he was not present when that was done. He stated that Henry Njagi was misled when he bought the suit land from Ireri Mugoiyo. He explained that Gatumu bought the suit land before demarcation was done. Mr. Nyaga told the court that he knew the suit land well because his father’s land bordered Ireri’s land. He maintained that Njagi could not have been given land in 1983 because he was not in the case. 14. On conclusion of the hearing, the court directed parties to file and exchange written submissions, which it has considered. The Plaintifi reiterated the facts set out in the plaint and asserted that the appeal filed in 2000 was lodged 13 years after the decision in the objections proceedings was made on 25/9/1987. He urged that the Minister’s decision was erroneous and based on evidence that was not adduced by the representative of Gatumu Kiricho. He argued that the DCC who represented the Minister for Lands ignored overwhelming evidence given during the objection proceedings. 15. He emphasized that in order to determine the lawful owner of the suit land, it was necessary to investigate the root of title of the 1st Defendant title. The Plaintifi cited Dina Management Limited v https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1962/eng@2026-02-25 3

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County Government of Mombasa & 5 others [Petition 8 (E010)] of 2021, eKLR where the Supreme Court reiterated that a registered proprietor acquired an absolute and indefeasible title only if the allocation was legal, proper and regular and that a court of law cannot sanction an illegal or irregularly obtained title. 16. The Plaintifi submitted that the law protected titles except in instances where they were obtained by fraud or misrepresentation to which the person was a party and where the certificate of title was acquired illegally, unprocedurally or through a corrupt scheme. He maintained that the 1st Defendant obtained title over the suit land in an illegal and fraudulent manner. He urged that since the 1st Defendant’s title was tainted with illegality, it could not confer title on the 1st Defendant. He urged that the decision of the 2nd Defendant was illegal and should be quashed so that the suit land is restored to the estate of Henry Njagi Njogu. 17. The 1st Defendant submitted that this suit essentially challenged the Minister’s decision in an appeal filed under the Land Adjudication Act. He submitted that it was improper for a party to challenge the merits of the Minister’s decision through a fresh suit such as the instant one because one must be restricted to declaratory reliefs relating to the decision making process and not the merits of the decision. He submitted that the allegations made were that the Minister took into account irrelevant considerations and that the appeal before the Minister was filed 13 years out of time. 18. The 1st Defendant maintained that the Plaintifi failed to demonstrate what irrelevant consideration were taken into account in the decision of the Minister. He argued that the appeal was filed within time and that the Plaintifi was merely relying on the case number. Further, he urged that the issue of the appeal having been filed out of time should have been raised before the Minister so that he could confirm from the documents the filing date. The 1st Defendant maintained that Section 29 of the Land Adjudication Act provided that the Minister’s decision was final. 19. The 1st Defendant cited Watuku Mutsiemi & Another v Republic & 5 others [2018] eKLR where the court stated that an objection to jurisdiction should be raised at the earliest opportunity and that the appellant had not sufiered any prejudice by the late filing of the appeal. The 1st Defendant added that the documents relating to the filing of the appeal were in the custody of the land adjudication ofice. He emphasised that the Minister’s decision was final and not liable to appeal in court. He urged the court to dismiss the suit. 20. The issue for determination is whether the Plaintifi proved his case and is entitled to the reliefs sought in the plaint. This land dispute can be traced to Ireri Mugoiyo who sold the land to both Gatumu Kiricho and Henry Njagi Njogu before the land in Kirima Adjudication Section was adjudicated and demarcated. The land has been the subject of numerous disputes and resolution through difierent legal mechanisms. The legal battle started when Gatumu Kiricho filed Case No. 76 of 1973 against Ireri Mugoiyo in the Unit Committee of Kirima Adjudication Section claiming the suit land was awarded to him. The Committee found in favour of Gatumu. Aggrived by that decision, Ireri Mugoiyo lodged Appeal No. 43 of 1973 and the Appeals Board reversed the decision of the Unit Committee and determined that the suit land was sold to Henry Njagi Njogu. 21. In the course of the adjudication and demarcation of the Kirima Adjudication Section, Henry Njagi filed Objection Numbers 320, 789, 341, 148 and 321 all of 1983, and these objections were consolidated and heard together. The outcome of these objections was a finding made on 25/9/1987 that the suit land belonged to Henry Njagi Njogu. Following the determination of the objection proceedings, the suit land was registered in Henry Njagi Njogu’s name on 30/10/2008 and a title deed was issued to him on 19/2/2010. The Plaintifi contended, which was not controverted by the 1st https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1962/eng@2026-02-25 4

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Defendant, that Henry Njagi Njogu occupied and utilised the suit land from 1973 as do seven of his sons and widows of his two sons who have extensively developed the suit land. 22. Aggrieved by the decision made in the objection proceedings, Gatumu lodged Minister’s Land Appeal No. 239 of 2000, which was determined on 10/12/2018, by the DCC for Mbeere South Sub-county on behalf of the Minister for Lands. The DCC awarded the suit land to Gatumu Kiricho, who died in 2006 and was therefore represented by the 1st Defendant in the Appeal. The Plaintifi’s contention is that the appeal was filed 13 years after the decision in the objection proceedings was made. The 1st Defendant countered this by asserting that the appeal to the Minister was filed within time. 23. The Land Adjudication Act contains an elaborate framework for the resolution of disputes arising from land adjudication and demarcation. Section 26 grants a person aggrieved by the adjudication register 60 days to object to the Adjudication Oficer by setting out what he considers incorrect or incomplete in the adjudication register. The Adjudication Oficer is mandated to consider and determine the objection. From the facts of this case, this was the determination made on 25/9/1987 with respect to Objection Numbers 320, 789, 341, 148 and 321 all of 1983. 24. Section 29 of that Act stipulates that a person aggrieved by the determination of an objection under Section 26 may appeal against the determination to the Minister (now Cabinet Secretary) by delivering a written appeal specifying the grounds of appeal. From this provision, the 1st Defendant would be expected to produce a copy of the appeal lodged with the Minister to prove that the appeal was lodged within the statutory period of 60 days. The 1st Defendant submission that the documents relating to the filing of the appeal were in the custody of the land adjudication ofice is not persuasive and the court is inclined to agree with the Plaintifi that the appeal was lodged in 2000 based on the case number, that is Minister’s Land Appeal No. 239 of 2000. The appeal by Gatumu to the Minister was therefore filed out of time. 25. The fact that the suit land was registered in Henry Njagi Njogu’s name on 30/10/2008 and that a title deed was issued to him on 19/2/2010 after the determination of the objection proceedings, confirms that any challenge to the title should have been pursued before the court since the Minister lacks power under the Land Adjudication Act to cancel title. The registration of Henry Njagi Njogu as the proprietor of the suit land removed the suit land from the application of the Land Adjudication Act and brought it within the Land Registration Act. 26. The decision of the Cabinet Secretary for Lands dated 10/12/2018 in Minister’s Land Appeal No. 239 of 2000 in Kirima Adjudication Section, Mbeere South Sub-County in respect of Mbeere/Kirima/554 is set aside. 27. The court grants prayers (b) to (e) sought in the plaint dated 14/10/2022. Each party will bear its costs. DELIVERED VIRTUALLY AT BUNGOMA THIS 25TH DAY OF FEBRUARY 2026. K. BOR JUDGE In the presence of: Mr. Victor Andande for the 1st Defendant Court Assistant- Diana Kemboi No appearance for the other parties https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1962/eng@2026-02-25 5

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