REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MAKUENI ELC NO. E10 OF 2020 WINFRED MUENI KATIKU..………………………………1ST PLAINTIFF JOSEPHKAVITHI KATIKU………………………………..2ND PLAINTIFF -VERSUS JOYCE KANGWELE MWANGANGI, CAROL NDUNGE KATIKU AND STELLA MUTHINI KATIKU (Sued as Legal Representatives of the Estate of Nicholas Mutisya Katiku)................................………......1ST DEFENDANT GODFREY MWONGELA KIMONDIU.............................2ND DEFENDANT CHAIR MAKUENI LAND CONTROL BOARD.............. 3RD DEFENDANT LAND REGISTRAR MAKUENI COUNTY..................... 4TH DEFENDANT JUDGMENT 1. The Plaintiffs are children of Nicholas Mutisya Katiku who was sued as the 1st Defendant. Nicholas Mutisya Katiku died on 13 th September, 2022 and was substituted by his wife Joyce Kangwele Mwangangi and his daughters Carol Ndunge Katiku and Stella Muthini Katiku. Nicholas was son to Kavithi Senge who died on 30th January, 1985. Nicholas Mutisya Katiku and Francis Mutuku Kavithi were appointed administrators of the Estate of Kavithi Senge. 2. Kavithi Senge was the registered owner of LR No. Makueni/Unoa/320 measuring 13.0 hectares. The late Nicholas Mutisya Katiku had sold three acres to the 2nd Defendant. During confirmation of grant in respect of the Estate of Kavithi Senge, Nicholas Mutisya Katiku was given 13 acres and the 2nd Defendant was given 3 acres. 3. It is the Plaintiffs’ case that their father had no authority to sell land to the 2 nd Defendants as he did not have a confirmed grant in respect of the estate of their grandfather Kavithi Senge. They contend that their mother did not give spousal consent for the sale of the 3 acres to the 2 nd Defendant. They further state that even if their father obtained a confirmed grant, the property in his ELC NO. E010 F 2020 1|Page
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name is family land which he would be holding in trust for his family and cannot therefore dispose it without consent of the Plaintiffs and other beneficiaries. 4. The administrators of the Estate of Nicholas Mutisya Katiku did not give any evidence during the hearing. Though the 3rd and 4th Defendants filed a memorandum of appearance, they neither filed defence nor appeared during the hearing. 5. The 2nd Defendant testified that he purchased 3 acres from Nicholas Mutisya Katiku on the understanding that once there was succession in respect of the Estate of Kavithi Senge, he would be included as a beneficiary. Efforts by the Plaintiff to have the grant revoked did not succeed. He states that all the siblings of Kavithi Senge did not object to his inclusion as a beneficiary of the estate. 6. The Plaintiffs submitted that the land which their father sold was family land subject to customary trust. They further submitted that their father was holding the land in trust for them and other beneficiaries. They also submitted that there was no consent of the land control board and therefore the transaction between their father and the 2nd Defendant was null and void. 7. The Plaintiffs further submitted that there was no spousal consent given for the sale of the land to the 3rd Defendant. 8. The 2nd Defendant submitted that his interest in the 3 acres is anchored on a confirmed grant. The Plaintiffs attempted to challenge the grant but the challenge was dismissed and there was no appeal from that. The 2nd Defendant therefore submits that there is no basis upon which this court can fault the process by which the 2nd Defendant obtained his 3 acres. 9. I have carefully considered the Plaintiffs’ case as well as the 2 nd Defendant’s case. I have also considered the submissions filed herein. There is no contention that when Nicholas Mutisya Katiku sold land to the 2 nd Defendant on 5th April, 2019, he had not obtained grant of letters of administration in respect of the Estate of the registered owner of the land that is Kavithi ELC NO. E010 F 2020 2|Page
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Senge. However when grant of letters of administration were granted and subsequently confirmed, Nicholas Mutisya Katiku who had sold the land to the 2nd Defendant was one of the administrators. 10.The 2nd Defendant was included as a beneficiary of the estate of Kavithi Senge whereby he was given 3 acres. This being the case, the issue for determination is whether this court can nullify what was given to the 2 nd Defendant through a confirmed grant. 11.The Plaintiffs filed an application for revocation of grant issued to their father and another person. This objection did not succeed. There was no appeal against that decision. The position remains that the 2 nd Defendant has his 3 acres based on a confirmed grant. There is therefore no basis upon which this court can declare that to be invalid as this court does not have jurisdiction to deal with succession matters. 12.The issue of spousal consent does not arise. The property known as Makueni/Unoa/320 was registered in the name of Kavithi Senge. The Plaintiffs’ mother was not a spouse of Kavithi Senge as to require her to give consent to transactions touching on his land. The only way Kavithi Senge’s land could be dealt with was through succession process. This is what Nicholas Mutisya Katiku did when he distributed his estate upon getting a confirmed grant. 13.Equally there was no consent of the land control board required. The 3 acres were to be transmitted to the 2nd Defendant who had been included as a beneficiary of the estate of the deceased. 14.The estate of Kavithi Senge has already been distributed. It can no longer be subject of customary trust as each beneficiary has been given his/her portion. It is therefore clear that the Plaintiffs’ suit is misconceived. The same is dismissed with costs to the 2nd Defendant. ......................................... HON. E. O. OBAGA, FCIArb JUDGE ELC NO. E010 F 2020 3|Page
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JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 16TH DAY OF JULY, 2026. IN THE PRESENCE OF: Ms. Kyalo for 2nd Defendant. Ms. Ngina for Ms. Katasi for Plaintiffs. Court assistant – Musyoki ELC NO. E010 F 2020 4|Page
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