REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYERI
ELC (OS) NO E007 OF 2021
MWAGIRU DAVID MUGO........................................... APPLICANT.
VERSUS
ROBERTSON MUREITHI WAWERU & 8 OTHERS..... RESPONDENT
JUDGMENT:
This suit was commenced by way of an Originating Summons dated 25/10/2021 in which the Applicant moved the Court for the following orders: -
1. THAT this Honourable Court be pleased to issue an order directed to the Chief Land Registrar to compel the said Chief Land Registrar to cancel the register and recall the Title Deeds issued over Land Parcel Title No. NYERI/WARAZA/694 after 4th September, 2017.
2. THAT a declaration that the Title Deed issued to it by the Land Registrar on 4th September, 2017 is conclusive evidence of ownership and that he is the absolute and indefeasible owner of the property being Land Parcel Title No. NYERI/WARAZA/694.
3. THAT a permanent injunction to restrain the Defendants, whether by themselves, their agents and their servants from interfering with the ownership, use and possession by the Plaintiff or encroaching and trespassing on the suit properties.
4. That an order of permanent injunction restraining the respondents from interfering with the petitioner’s rights of ownership and possession over LAND PARCEL TITLE NO NYERI/WARAZA/694. Saving only as the same may otherwise be affected as by law provided.
5. THAT a declaration directing the 6th and 7th Defendants to investigate the fraud in LAND PARCEL TITLE NO NYERI/ WARAZA /694.
6. That the County Commander in charge of Nyeri County be directed to ensure enforcement of the orders granted by this Honourable Court.
7. Costs be provided for.
On the grounds on the face of the said Summons and in the Supporting Affidavit sworn on the 25/10/2024, the Applicant states that he is the registered, absolute proprietor of the property known as L.R No. NYERI/WAZARA/694 measuring 3.191 Hectares. He then sold 2 Acres to one Robertson Mureithi Waweru, the 1st Respondent but that the surveyor while sub-dividing the land in order to give the latter his 2 Acres, made a mistake and gave him a larger portion.
The said Title was closed on 3rd March, 1983, with the resultant Titles being L.R Nos. NYERI/WARAZA/289 and 291 respectively. This was as at 17/7/2018.
On 2/8/2018 he realized that the same had been changed to NYERI/WARAZA 639 and 694 with 639 being registered in the name of Wanjiku Kuhura, a stranger which was then closed in July 2010 to give way to NYERI/WARAZA/1592 – 1595 and by 29/10/2019 NYERI/ WARAZA/ 393 had been closed to pave way for NYERI/ WARAZA/621 and 622. By 28/11/2019 this Title had been sub-divided into NYERI/WARAZA/1716,1717,1718 which were registered in the names of John Mbugua Wanjiku and Joseph Maina Wanjiku and the Title closed to pave way for 1738 and 1739. 1717 was registered in the name of Patrick Mbuthia. 1718 was registered in the name of Peter Gichuki Muchiri. He also deponed that the area chief had on 6/2/2019 written a letter indicating that what the Applicant had sold to the 1st Respondent was 1.58 Hectares which according to the Applicant was not the correct position.
This has unlawfully disentitled the Applicant all his properties as shown above. Save the 6th and 8th Respondents who were served personally, all the other Respondents were served by way of substituted service through the Daily Nation Newspaper of 20/5/2023. Besides the 6th and 8th Respondents who filed a Notice of Appointment and filed a Replying Affidavit through the Land Registrar Nyeri, a Mr. Nathan Gathaiya, the others did not file any Response and the matter proceeded to Hearing on the 8th and 24th July, 2025 respectively.
During the Hearing, when none of the Respondents turned up nor the Advocates for the 6th and 8th Respondents, the Applicant an 83-year-old farmer who said he lives in Narumoru reiterated the contents of his Supporting Affidavit which he adopted as his evidence in chief. He also produced the following documents: -
1. A copy of Daily Nation of substituted service.
2. A copy of Affidavit of service.
He said that he was allocated the parcel of land L.R No. NYERI/ WARAZA /694 in November 1963 measuring 3.91 Hectares. He then sold 2 Acres out of the same to the 1st Respondent but the Surveyor carved out more than the 2 Acres in favour of the 1st Respondent by about 4 Acres.
He said that he had paid the entire loan. The land was given Title No 193. He now demands his land back save what he sold to the 1st and 9th Respondents being 2 Acres.
There being no Responses from the affected Respondents who were duly and painfully served and in the absence of contrary evidence from the Respondents to compare with that of the Applicant, I have no reason to doubt the Applicant and it is my conclusion that he has proved his case on a balance of probabilities and I allow the Applicant ’s prayers in his Originating Summons dated 25/10/2021 as the Judgment of this Court.
Read, dated and delivered virtually at Nyandarua this 28th Day of October 2025.
HON. JUSTICE MUGO KAMAU
JUDGE
In the presence of:
COURT ASSISTANT………………………..SAMSON.
APPLICANT……………………………N/A.
RESPONDENT………………………..N/A.
| NYERI ELC ( OS) NO E007 OF 2021 JUDGMENT 2 |