REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISII
ELCLPET NO. 20 OF 2024
JOSEPH MOSE AKUMA ……………………………...……….. PETITIONER
VERSUS
PASKARIA MOIGE ONTITA …………………………….. 1ST RESPONDENT
LAND REGISTRAR, KISII COUNTY ………………..…. 2ND RESPONDENT
2. The 1st respondent filed a replying affidavit to oppose the petition. She deposed that she is daughter of Nicholas Nyangeri and Maria Kemunto Nyangeri (both deceased). She elaborated that Nicholas Nyangeri was a brother of William Akuma, the father of the petitioner. She deposed that her father (Nicholas) died before adjudication and that during adjudication, her mother (Maria) requested the adjudication committee to register the land of her father in name of William Akuma and the latter would hold that land in trust for her. She avers that the share of her father in the land parcel No. 34 was 3 acres. She acknowledges that she filed Kisii High Court Succession Cause No. 209 of 2000 in respect of the estate of the late William Akuma. She states that later she came to learn that the petitioner had subsequently filed Kisii High Court Succession Cause No. 227 of 2000 in respect of the same estate. She deposes that the petitioner filed an objection in Succession Cause No. 209 of 2000 and the dispute was referred to arbitration before the District Officer, Mosocho. She deposes that an award was made (the award was to effect that she deserves half the land parcel No. 34) and the same was adopted by the High Court. The petitioner was aggrieved and filed an appeal to the Court of Appeal, which appeal was dismissed. She deposes that she applied to consolidate the two succession causes which was allowed in a ruing delivered on 23 April 2020, and the grant of the petitioner revoked. She deposes that she has applied for execution of the order granting her half of the land parcel No. 34.
3. I directed the petition to be heard by way of written submissions and I have seen and taken note of the submissions filed by Mr. G.J.M Masese, learned counsel for the petitioner, and Mr. Momanyi Aunga, learned counsel for the 1st respondent.
4. The petitioner claims to be the registered proprietor of the land parcel No. 2718 and complains that the cancellation of his title by the Land Registrar is illegal. I am not persuaded.
5. What I see is that the petitioner and the 1st respondent had a succession dispute regarding the distribution of the estate of the late William Akuma, comprised in the land parcel No. 34. An award was made that the 1st respondent gets half the land. This award was adopted by the court on 18 July 2003. I observe that by this time, the petitioner had somehow caused himself to be registered as proprietor of the land parcel No. 34 though I have seen no evidence of a confirmed grant in his favour. Whatever the case, after a decision was made that the 1st respondent is entitled to half share of the parcel No. 34, which decision was affirmed by the Court of Appeal in its judgment of 29 July 2011, the petitioner now needed to subdivide the land parcel No.34 into two equal portions, with one portion to the 1st respondent. He however did not do this. Instead, on 15 February 2018, he purported to subdivide the land parcel No 34 into three portions, registered as parcels No. 2718, 2719, and 2720. He then transferred one portion, that is the land parcel No. 2718, to himself. It is this title that he claims was illegally cancelled by the Land Registrar.
6. The 1st respondent has annexed a ruling of Ougo J, delivered on 23 April 2020, in Kisii High Court, Succession Cause No. 209 of 2000, vide which the court ordered the Land Registrar to cancel the title of the petitioner which he obtained on 12 June 2001, and further ordered the reinstatement of the land parcel No. 34 in name of William Akuma. This order effectively nullified the title of the petitioner to the land parcel No. 2718 as the land could not revert back to the parcel No. 34 without a nullification of the subdivisions thereto. The 1st respondent has also annexed another ruling of the High Court, dated 26 November 2024, wherein the High Court (Odera J) made orders to execute its decree to subdivide the land parcel No. 34 into two portions.
7. What the foregoing means that the petitioner cannot purport to hold any title to the land parcel Central Kitutu/Mwamanwa/2718. Such title does not exist. It was nullified by the order of the High Court made on 23 April 2020.
8. I do not see how the petitioner can now come to court seeking protection over a title that does not exist and was ordered nullified by an order of the High Court. In light of that it is moot for me to determine whether the Land Registrar was wrong to act in the manner that he did.
9. The long and short of it is that there is no substance in this petition and it is hereby dismissed with costs to the respondents.
10. Orders accordingly.
DATED AND DELIVERED THIS 21 DAY OF OCTOBER 2025
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT KISII
Delivered in presence of :
Mr. G.J.M Masese for the petitioner
Mr. Momanyi Aunga for the 1st respondent
Mr. Denis Wabwire, State Counsel, for the 2nd respondent
Court Assistant – Michael Oyuko