REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC NO. 208 OF 2017
EUNICE NDUKU KIVELENGE
WAVINYA KIVELENGE (Suing as the legal representatives of the estate of the Kivelenge Nzano)………. .......................................................PLAINTIFFS
-VERSUS-
MATENDE NTHANO KIVAI..............................................1ST DEFENDANT
FREDRICK MUTISYA KISILU......................................... 2ND DEFENDANT
JUDGMENT
1. The Plaintiff filed this suit against the Defendant on 15th December, 2016 in which she sought the following reliefs:
a. A declaration that the land parcel No. Nzaui/Kalamba/25 is registered in the name of the Defendant to hold in trust for the deceased herein who owns and equal share of the land as the Defendant herein.
b. An order directing the Defendant to transfer half of the land to the Plaintiffs’ estate herein within such timelines as the court may order and in default the property registrar do exerted the transfer documents.
c. An order of illuminate injunction restrain the Defendant either by himself, agent, servant or anyone claiming through him from entering, trespassing, cultivating, using or otherwise interfering with the Plaintiff use of the share of land held in the land parcel No. Nzaui/Kalamba/25 or the subsequent subdivision thereof.
d. Costs of this suit plus interests.
2. The case was heard and a judgment was delivered on 30th July, 2019 where the court ordered that the suit property that is LR No. Nzaui/Kalamba/26 (suit property) be subdivided equally between Kivelenge Nzano (deceased) and the Defendant.
3. On 19th November, 2019 Fredrick Mutisya Kisilu applied to set aside the judgment delivered on 30th July, 2019 and that he be allowed to defend the suit on grounds that he had purchased a portion of the suit property from the Defendant.
4. On 24th July, 2020, the application by Fredrick Mutisya Kisilu was allowed. He was brought in the suit as a second Defendant and was allowed to file a counterclaim.
5. On 30th July, 2020, the 2nd Defendant filed a defence and raised a counterclaim in which he sought the following reliefs:
a. A declaration that the 2nd Defendant herein has acquired a portion of land measuring 2.2 acres in land parcel No. Nzaui/Kalamba/25 by way of adverse possession.
b. An order directing the 1st Defendant to transfer the said portion of land measuring 2.2 acres in land parcel No. Nzaui/Kalamba/25 to the 2nd Defendant herein Fredrick Mutisya Kisilu.
c. An order that the suit property herein being land parcel No. Nzaui/Kalamba/25 be subdivided and the 2nd Defendant herein be registered as the proprietor of the said 2.2 acres therein.
d. Costs and interest of the suit.
6. The Plaintiff and her mother filed this suit as the administratixes of the estate of Kivelenge Nzano (deceased) who was a step brother of the 1st Defendant. The Plaintiff’s mother died on 22nd May, 2021.
7. The evidence on the part of the Plaintiff was that the suit property belonged to the father of the deceased and the 1st Defendant. The father of the deceased and the 1st Defendant died before the process of demarcation. During the demarcation process, the deceased was not at home. He was in Mombasa. The suit property was registered in the name of the 1st Defendant who proceeded to obtain title on 7th September, 1994. The suit property had been registered in the 1st Defendant’s name on 8th July, 1976. The suit property is 3.6 hectares.
8. In the year 2000 one of the deceased’s son Mwandeto Kivelenge Nzano and his mother filed a case against the 1st Defendant at Makueni Land Dispute Tribunal. The Tribunal ruled that the suit property should be subdivided equally between the deceased’s family and the 1st Defendant’s family.
9. The clan elders subdivided the suit property into two equal portions between the deceased’s family and the 1st Defendant’s family. The boundary was marked by sisal plants which were all uprooted by the 1st Defendant. The Plaintiff’s family is on the suit property but there is no boundary separating the two parties. The 1st Defendant has continued to sell portions of the suit property to third parties.
10. The 1st Defendant testified that he is the sole registered owner of the suit property and that he does not co-own the same with anyone else. He stated that the Plaintiff has her land at Tuaa and that the suit is statute barred and should be dismissed with costs to him.
11. The 2nd Defendant testified that he purchased 2.2 acres from the 1st Defendant. The deceased was one of the witnesses to the sale agreement. He fully paid the purchase price and was put in possession. He planted orange trees and Napier grass. The orange trees have matured and no one has ever interrupted his possession. On 11th November, 2019 he filed an originating summons against the 1st Defendant where he was seeking acquisition of the 2.2 acres by way of adverse possession. This was in ELC (OS) No. 82 of 2019. The suit was determined through a consent which was adopted as a judgment of the court on 15th June, 2020. The Plaintiff prayed that the court do declare that he has acquired 2.2 acres out of the suit property by way of adverse possession.
12. The court directed parties to file written submissions. As at 24th December, 2025, the Plaintiff had not filed her submissions. The 1st Defendant filed his submissions dated 2nd October, 2025. The 2nd Defendant filed his submissions dated 28th October, 2025.
13. I have carefully considered the evidence adduced by the 1st and 2nd Defendants. The issues which emerge for determination are firstly whether the Plaintiff has established that the suit property is family land and that the 1st Defendant is holding the title in trust for the family of the deceased. The second issue is whether the suit property should be shared equally between the family of the deceased and the family of the 1st Defendant. Thirdly, what is the fate of the 2.2 acres which he 2nd Defendant purchased from the 1st Defendant. Fourthly, are the parties entitled to their respective claims. Lastly, which order should be made on costs.
14. On the first issue, there is no contention that the deceased and the 1st Defendant are step brothers. The two are both sons of Nzano Kivai who died before the process of demarcation. Nzano Kivai had married two wives. The first wife was Mwelu Nzano who was mother to the deceased. The second wife was Kasiku Nzano the mother to 1st Defendant.
15. The evidence which emerged from the tribunal is that Nzano Kivai had land in both Tuaa and Kalaani where the suit property is situate. When Nzano Kivai died, he was buried at Tuaa. His second wife who is mother to the 1st Defendant went back to her parents place. While at her parents’ place, she conceived and gave birth to the 1st Defendant. The deceased’s mother who was her co-wife went for her and brought her to Kalaani where the two settled and were taken care of by a cousin of Nzano Kivai.
16. The deceased was born and raised at Kalaani and when he died, he was buried at the suit property. The suit property was then subdivided into two portions one for the deceased family and the other for the 1st Defendant. The registration in the name of the 1st Defendant was because the deceased was in Mombasa. When the suit property was being shared, persons were sent to go for the deceased but he did not come. He only came later and hanged himself and was buried on the suit property.
17. It is therefore clear that the suit property was family land and the deceased would have been entitled to be registered were it not for the deceased’s absence during demarcation.
18. On the second issue, the evidence which emerged particularly from Mutiku Kasu is that both the deceased and the 1st Defendant were given a share of their land at Tuaa. The deceased’s portion was sold by Nzuve because the deceased was away. There is no evidence which emerged whether the 1st Defendant’s portion at Tuaa was sold by anyone. This being the case, the suit property should also be subdivided equally so that the family of the deceased and the 1st Defendant benefits equally.
19. In his submissions, the 1st Defendant submitted that the Plaintiff’s suit is time barred. The Plaintiff is claiming half share on behalf of the deceased based on customary trust. Where there is a claim of customary trust, the same is not subject to limitation of time. The 1st Defendant also submitted that the proceedings of the tribunal cannot be relied on as they were not signed and that the verdict of the tribunal was not adopted as a judgment of the court.
20. The 1st Defendant cannot attach the verdict of the tribunal in submissions. There was no issue raised in the 1st Defendant’s defence on the non signing of the verdict of the tribunal or failure by the trial magistrate to adopt the verdict as a judgment of the court. The 1st Defendant was given the opportunity to attack the verdict and the subsequent adoption through the means provided under the Land Disputes Tribunal Act (now repealed) but he never did that. He cannot now come to raise the issue in submissions which are not evidence.
21. On the third issue, the 2nd Defendant testified that he purchased 2.2 acres from the 1st Defendant. He later filed originating summons No. ELC 82 of 2019. A consent was subsequently entered into in that suit which consent was adopted as judgment of the court on 15th June, 2020. The adoption was by the Deputy Registrar pursuant to the special Powers donated under Order 49 Rule (3) of the Civil Procedure Rules. He produced a decree arising out of the consent judgment. Though the 1st Defendant appeared not to be aware of the consent, that consent was never challenged and during the hearing of this suit, both the Plaintiff and the 1st Defendant stated that they had no issue with the 2.2 acres which the 2nd Defendant purchased. What the 2nd Defendant should have done was to execute the judgment in his favour. He should not have filed a counterclaim to seek what he had already obtained.
22. Notwithstanding the fact that the 2nd Defendant already has a judgment in his favour arising from ELC No. 82 of 2019 (OS) the 2.2 acres shall be excised from the portion of the 1st Defendant.
23. I therefore find that the Plaintiff has proved her case against the 1st Defendant on a balance of probabilities. I enter judgment for the Plaintiff against the 1st Defendant in the following terms:
a. A declaration that land parcel No. Nzaui/Kalamba/25 is registered in the name of the 1st Defendant to hold in trust for the deceased Kivelenge Nzano who owns an equal share of the land as the 1st Defendant herein.
b. An order directing the 1st Defendant to transfer half of land parcel No. Nzaui/Kalamba/25 to the administratrix of the estate of Kivelenge Nzano within 90 days from the date of this judgment failing which the Deputy Registrar of this court shall sign all necessary documents to ensure that half of parcel No. Nzaui/Kalamba/25 is registered in the name of the administratrix of the estate of Kivelenge Nzano.
c. An order of permanent injunction to issue restraining the 1st Defendant either by himself, his agents, servants or anyone claiming through him from interfering with the Plaintiff’s half share of land to be excised from LR No. Nzaui/Kalamba/25.
d. Costs and interest of the suit.
24. On the other hand, I find that the 2nd Plaintiff has proved his claim against the 1st Defendant on a balance of probabilities. I enter judgment for the 2nd Defendant against the 1st Defendant as follows:
a. A declaration that the 2nd Defendant has acquired a portion of 2.2 acres within the half portion due to the 1st Defendant in LR No. Nzaui/Kalamba/25 by way of adverse possession.
b. An order directing the 1st Defendant to transfer 2.2 acres to the 2nd Defendant from his half portion in LR No. Nzaui/Kalamba/25 within 90 days failing which the Deputy Registrar of this court do sign all documents necessary to transfer 2.2 acres to the 2nd Defendant out of the half share of the 1st Defendant in Nzaui/Kalamba/25.
c. As the 1st and 2nd Defendant had entered into a consent in ELC 82 of 2019 (OS) that each part was to bear own costs. I will equally direct that in this case the 1st and 2nd Defendants do bear their own costs of this counterclaim.
………………………………
HON. E. O. OBAGA
JUDGE
JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF JANUARY, 2026.
IN THE PRESENCE OF:
Mr. Ngolya for 1st Defendant.
Mr. Kithuka for 2nd Defendant
Ms. Wairimu for Mr. Wambua for Plaintiff
Court assistant – Steve Musyoki
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