REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
ELC CASE NO E014 OF 2024
GILBERT THIONGO NG’ANG’A & 18 OTHERS...................PLAINTIFFS
VERSUS
BONIFACE NJOGU KANIU.............................................1ST DEFENDANT
ROBERT KANIU NJOGU..................................................2ND DEFENDANT
RULING
The 19 Plaintiffs in this case sued the 1st and 2nd Defendants, the latter being the father and son respectively who they claimed held in trust the suit property adjacent to lake Olbolosat (West) No. 3777/282/1 and 377/276/4 the same being family land registered in the name of Robert Kaniu Muchiri (Deceased). The 2 disposed of part of their land measuring 43.734 Hectares to the Plaintiffs. The Grant of letters of Administration was confirmed in Succession Cause No. 357 of 2000 on 16/12/2003 and the Estate distributed and the 1st Defendant listed as one of the beneficiaries. In that strength, the Plaintiffs bought the parcels of land hived from the suit land. They paid a deposit of Kshs. 103,000/= to the Defendants and took possession of the land and started cultivating it and also built permanent and semi-permanent homes. But the Defendants have failed to transfer the land to them (the Plaintiffs) in spite of demand made. The Plaintiffs therefore pray for Judgment against the Defendants for the following: -
a. A declaration that all part of the parcel bought by the Plaintiffs from the suit property ADJACENT LAKE OLBOLOSET (WEST) NO. 3777/282/1, 3777/283/1 & 377/276/4 belongs to the Plaintiffs upon payment of the balance of consideration.
b. That the Defendant be ordered to transfer all the parcel of land bought by the Plaintiffs in the part ADJACENT TO LAKE OLBOLOSET (WEST) NO. 3777/282/1, 3777/283/1 & 377/276/4
c. That a directive be issued to the Registrar of lands to process Title in the names of the Plaintiffs on the part of the suit property after the Documents are executed by the Court Registrar.
d. A permanent injunction be issued against the Defendant to restrain him, his servants, agents and persons acting on his behalf from trespassing and harassing the Plaintiffs and their families on the part of the suit property bought.
e. Costs of the suit and interest thereon at Court rates.
f. Any further relief that the Court may deem fit to grant.
In the Defence dated 19/3/2025 filed by Beatrice Waithira Njoroge as guardian Ad Litem of Boniface Njogu Kahiru the 1st Defendant who has mental incapacity the Plaintiffs’ claim is denied in its entirely and it is averred that the 1st Defendant lacked capacity to enter into a contract for the sale of the suit land nor did he receive any deposit from the Plaintiffs and asks the Court to dismiss the suit with costs.
In the 2nd Defendant’s Statement of Defence dated 22/9/2025, the said Defendant also avers that his father, the 1st Defendant has not been of sound mind for the last 2 years. He further avers that the 1st Defendant became a beneficial owner of the suit land after the Succession Cause No. 357 of 2000 was concluded and that it is true there was an agreement to sell part of the land to the Plaintiffs and that the Defendants have not refused to transfer the suit land to the Plaintiffs and gives the reason for such non-transfer as that the Title Deed is in the name of the 1st Defendant’s father and that the Administrator of the Estate has refused to co-operate and surrender the Documents and the original Title of the suit land.
In between the filing of the 2 Defences respectively, one Joseph Kuria Njogu, son to the 1st Defendant, filed an Application dated 26/8/2025 seeking to be joined as an interested party in the suit urging the Court that he is a necessary party because the 1st Defendant is polygamous and the 2nd Defendant is his brother from the 1st home. He claims to have been gifted 25 Acres out of the suit land where he is putting up a permanent house that is nearing completion and he also cultivates the said 25 Acres for his livelihood and that his late wife, Jane Njeri is buried thereon. The orders sought in this suit if granted would therefore likely have adverse effects upon him.
The 1st Defendant’s guardian Ad Litem responded to this Application vide Replying Affidavit sworn on 29/10/2025. She admitted that the Applicant, Joseph Kuria Njogu is a biological son of the 1st Defendant but that it is not true that he was gifted part of the land by his father as he claims and therefore he lacks registrable beneficial or enforceable interest in the suit land that could be effected by the determination of the matter. And that the joinder would only cause unnecessary delay, complicate the proceedings and prejudice the 1st Defendant’s case particularly due to the mental incapacity. She therefore urges that it is fair, just and in the interest of justice that the Notice of Motion dated 26/8/2025 be dismissed with costs.
In matters of polygamous families such as this one, the rights of each child and every house must always be taken care of. Although there is no iota of evidence that the intended interested party was gifted by the 1st Defendant it is important that he be given an opportunity to canvass his claim if any in this suit because if he is locked out, he may never get another opportunity to protect his interests. I therefore allow the Application dated 26/8/2025 and order the Plaintiffs to amend the Plaint accordingly to include the Applicant as a party after which they will serve the same within the next 14 days and upon service, the interested party, now 3rd Defendant shall have 14 days to file and serve his Defence. The 1st and 2nd Defendants shall equally and within the same time be at liberty to amend their Defence.
Ruling read dated, signed and delivered at Nyandarua this 11th Day of June, 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson
Plaintiff’s Counsel: Mr. Gathumbi.
Defendant’s Counsel: Mr. Munyiriri.
| ELC CASE NO E014 OF 2024 RULING 2 |