Busienei & 3 others (Suing on Behalf of Themselves and Others) v Ngetich & 3 others (Environment & Land Case E044 of 2021) [2025] KEELC 1044 (KLR)
The bottom line
#The Eldoret Environment and Land Court nullified titles created by unlawful 2002 land subdivisions and allowed beneficiaries to finally execute a two-decade-old land award.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the subdivisions which were carried out by the Defendants as from 18th June, 2002 onwards were done lawfully
- 2.Whether the decree arising from Eldoret Chief Magistrates Court Award No. 61 of 2002 is executable
- 3.If the answer to issue number (2) above is affirmative, what are the acres to which the decree should be executed
- 4.Was it necessary to name the government or the Estate of Kimorong Mibei in these proceedings
- 5.Was it necessary for the Plaintiffs to have letters of administration in respect of the Estate of their fathers before filing of this case
- 6.Related to issue number 5 above, was it necessary for the Defendants to be sued in their capacity as legal representatives of their fathers Estates
- 7.Whether this suit is res judicata
- 8.Who should bear costs of this suit
Key legal issues
#Lawfulness of post-decree subdivisions (2002-2006)
The subdivisions carried out after 18th June 2002 were unlawful
The subdivisions rested on a vesting order obtained in Eldoret HCCC No. 150 of 1999 (OS) filed against a dead administratrix, hence a nullity, and that vesting order was itself nullified on 18th April 2018. The confirmed grants in P&A Nos. 24 and 29 of 1988 could not support the subdivisions because Kimorong Mibei and the 2nd and 4th Defendants were not beneficiaries of the Estate of Kipngetich Arap Tanui, and acquisitions by the government and Municipal Council of Eldoret had already reduced the parcels.
Executability of the decree from Award No. 61 of 2002
The decree is executable without joining the government or the Estate of Kimorong Mibei
Acquired and compensated portions are not subject to execution, and the balance is ascertainable. Kimorong Mibei had his chance to participate in the Tribunal proceedings but refused to sign his statement, and was later compensated over one million shillings, so his presence at execution stage is unnecessary. The Defendants exhausted their objections when their appeal was dismissed on 9th February 2018.
Acreage subject to execution
100 acres (95 acres from 8822 and 5 acres from 6617) are available to satisfy the decree
Gazette notices of intention to acquire are not proof of acquisition. The Commissioner of Lands' letter of 31st May 1988 confirmed a balance of 95 acres from 8822 and 5 acres from 6617. Although the Tribunal decree referred to 95 acres, LR 8822/2 registered in the names of the 1st and 2nd Defendants and Kimorong Mibei was 86 acres, sufficient for the decree.
Capacity to sue and be sued without grants of letters of administration
Neither side needed letters of administration for these execution proceedings
The issue never arose before the Tribunal, which knew the original partners had died and that their sons were litigating. The law does not require a grant even where a person who started the case has died; the 4th Plaintiff in any event obtained letters in respect of Kibai Busienei's estate. The same reasoning applies to the Defendants.
Res judicata
The suit is not res judicata
The former suit, Eldoret HCCC No. 12 of 2002, was struck out and never heard on its merits, so it could not found res judicata. Further, this suit was filed solely to aid execution of the lower court's decree, and the lower court had no jurisdiction to cancel titles or deal with the issues raised in HCCC No. 12 of 2002 or this suit.
Non-joinder of the government and the Estate of Kimorong Mibei
Their joinder was unnecessary
The suit was filed solely for execution purposes. No one is interested in land lawfully acquired by the government or Municipal Council, which know the extent of their land. Kimorong Mibei declined to participate in the Tribunal, so his presence at execution stage is unnecessary.
Legal principles established
#- Adoption of a Land Disputes Tribunal award renders it enforceable like any court decree
- A suit filed against a dead person is a nullity and nothing lawful can come out of it
- A court cannot allow a party to benefit from an illegality once brought to its attention
- Res judicata cannot apply where the former suit was struck out and never heard on its merits, and where the court in the subsequent suit exercises jurisdiction the lower court lacked
- Letters of administration are not required to continue or execute proceedings on behalf of a deceased litigant's estate in these circumstances
Court orders
#- 1.The subdivisions of land parcel 8822/2 resulting into the registered titles and any other titles resulting from LR Nos. 8822, 8637 and 6617 effected by the Defendants are declared null and void and are nullified
- 2.A declaration that land parcel 8822/2 and any remainder of LR No. 8637 and 6617 belong to the persons/beneficiaries as listed in the judgment (with specific acreages allocated to 30 entries including estates, dependants, public utilities, church/nursery school, dam, cemetery and roads of access) and should be registered as such
- 3.The portion of the suit properties in excess of the listed allocations be allocated to the beneficiaries proportionately, but the Defendants shall not benefit from any land found to be over and above that listed
- 4.The Defendants are restrained by way of permanent injunction from transferring, alienating, leasing, letting, charging, pledging as security, entering into, taking possession of, using, or in any other manner interfering with land parcel 8822/2 or any portion remaining in 8637, 6617 after acquisition by the government and Municipal Council of Eldoret
- 5.The Plaintiffs shall have costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; suit filed solely to perfect/execute the decree arising from adoption of the Land Disputes Tribunal verdict (Eldoret Chief Magistrates Court Award No. 61 of 2002), since the lower court had no jurisdiction to cancel titles
Relief refused
#Any benefit to the Defendants from the distribution of the suit lands beyond their Tribunal-awarded shares
Having unlawfully subdivided after the decree, they are excluded from excess land
Execution over portions acquired by the government and Municipal Council of Eldoret
No one is interested in land lawfully acquired and compensated
Costs
The Plaintiffs shall have costs of this suit.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I therefore find that the subdivsion which were carried out after 18th June, 2002 were unlawfully done.
I therefore find that the decree which arose from the adoption in Award No. 61 of 2002 is executable.
The suit having been filed against a dead person, the same was a nullity and nothing lawful could come out of it.
this court cannot allow one to benefit from an illegality when the illegality has been brought to the attention of the court
This suit cannot therefore be said to be res judicata.
There was no need for the government to be joined in these proceedings.
The Plaintifi shall have costs of this suit.
Issues in the judgment
#The judgment states the Court of Appeal dismissal of Civil Appeal No. 179 of 2011 occurred on 28th February 2013 in one passage, but elsewhere attributes that date to an appeal against the ruling of 14th April 2011 while also referring to 'Civil Appeal against the ruling of 15th November, 2011', an apparent date inconsistency
Internal contradiction in evidence on the extent of government acquisition: the letter dated 31st May 1988 records 136 acres acquired from 8637, whereas the Gazette Notices of 12th February 1988 indicated 84 acres to be acquired
The Plaintiffs' pleadings reference proceeds from sale of 84 acres to Kenya Pipeline, but the Defendants' evidence attributes the 84-acre acquisition intention to the government via Gazette Notices of 12th February 1988, and the judgment makes no finding on a Kenya Pipeline sale
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Busienei & 3 others (Suing on Behalf of Themselves and Others) v Ngetich & 3 others (Environment & Land Case E044 of 2021) [2025] KEELC 1044 (KLR)", Case Analysis (2025). Environment and Land Court suit arising from Eldoret Chief Magistrates Court Award No. 61 of 2002 (Eldoret ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1044/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.