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JudgmentMICHAEL MUCHIRI NDERITU VS PRISCILLA NYAKABI NDIKWE4 min read

MICHAEL MUCHIRI NDERITU VS PRISCILLA NYAKABI NDIKWE

Environment and Land Court at Nyeri Environment and Land Court · · MUGO KAMAU, J

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NYERI

ENVIRONMENT AND LAND CASE NO.172 O 2013 (O.S)

VERONICA WANGU KAMAU…………………………………..PLAINTIFF

VERSUS

PRISCILLA NYOKABI NDIKWE…………………………….DEFENDANT

RULING

  1. Judgment in this case was delivered on the 28th September, 2022.  The suit had been filed by way of an Originating Summons on 25.8.2013 and amended on 13.7.2015.  What was in the suit by way of determination by the Late Gabriel Nderitu Ndikwe and Michael Muchiri Nderitu was being the registered proprietor as a Trustee for the family of the late Ndikwe Mungatu of the Parcels of Land known as Nanyuki/Marura/Block 4/1107, 1102 and 1040 whether the said late Nderitu a granddaughter of the late Mungatu was entitled to ½ of the suit properties.  Mungatu had 2 wives. 
  2. As the case was going on, Muchiri Nderitu died and was substituted by his sister Veronicah Wangu Kamau.  The suit land formed part of the estate of Simon Wamuti Ndikwe.  The Appellant was a widow of Simon Wamuti Ndikwe from the 1st house which had a dispute over the ½ of the share of the Deceased Ndikwe Mungatu.  But the Appellant took the whole share of the 1st house. 
  3. The 2nd house had no dispute in respect to their share of ½ of the estate.  The Respondent represented Gabriel Nderitu, her father from the first house.  While admitting that the late Ndikwe Mungatu was her father in law she denied that she held the suit land in trust for the 1st house.  She claimed that although the suit was registered in the name of the late Ndikwe Mungatu the suit properties belonged to her late husband, Simon Wamuta Ndikwe who died before the conclusion of the Succession Cause No.189 of 1988 in respect to the late Mungatu.  Therefore the Appellant was registered the proprietor of the suit properties and according to the Respondent, in trust for the 1st house but according to the Appellant in her own right. 
  4. After the case was heard, the Honourable Mr. Justice J. Olola  held in his judgment that the Appellant held the suit properties in trust for the beneficiaries of the Deceased’s (Ndikwe Mungatu’s) estate belonging to the first house and he directed that all the 6 children of the first house must inherit the same equally and therefore the Respondent was entitled to 1/6 of the suit properties (her father’s share) to hold in trust for herself and for the entire family of the late Gabriel Nderitu. 
  5. The Appellant was dissatisfied and appealed to the Court of Appeal siting in Nyeri being Civil Appeal No.027 of 2023. 
  6. On 21.6.2024 the Court of Appeal held that after a re-evaluation of the totality of the evidence tendered in court, there was nothing substantial placed before the court to determine that the Appellant held the suit properties in trust for the first house.  The Respondent failed to discharge the burden of proving that the Appellant was registered as proprietor of the suit properties in trust for her and the members of the first house.
  7. In the pendency of the suit in this court and thereafter in the Court of Appeal, a restriction had been placed against the suit property and now that the Appellant has had the suit parcels of land held to be hers, then the same should be lifted since the Respondent shall suffer irreparable loss should the same not be removed.  This is in the Application dated 14.4.2025 supported by the Affidavit of the Respondent sworn on even date.

  1. Article 40 of the Constitution of Kenya, 2010 provides that –

“40. (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—

(a) of any description; and

(b) in any part of Kenya.

(2) Parliament shall not enact a law that permits the State or any person—

(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or

(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).

(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—

(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or (b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that— Constitution of Kenya, 2010 30

(i) requires prompt payment in full, of just compensation to the person; and 

(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.

(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.

(5) The State shall support, promote and protect the intellectual property rights of the people of Kenya.

(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.”

  1. The Application was not opposed and the same is hereby allowed with no orders as to costs.

Dated, Signed and Delivered at Nyeri this 10th day of July, 2025.

MUGO KAMAU

JUDGE

    MICHAEL MUCHIRI NDERITU VS PRISCILLA NYAKABI NDIKWE MICHAEL MUCHIRI NDERITU VS PRISCILLA NYAKABI NDIKWE