Makilya alias Petronilla Mutuku Ngove & another v Kathendu, Ngove and Ngove (Sued in their capacity as the Administrators of the Estate of TabitKalonduha Kalondu Ngove - Deceased) & 2 others; Land Registrar Machakos Land Registry & another (Interested Parties) (Environment & Land Case E047 of 2021) [2025] KEELC 3861 (KLR)
The bottom line
#A Machakos court confirmed that five family members each own a fifth of a disputed plot, and refused to nullify a lease that had already expired.
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 registered owners and persons they held in trust for each had a share in the suit property as tenants in common in equal shares.
- 2.Whether the relief for a declaration that the lease dated 1/01/1993 should be declared null and void is now moot.
- 3.What orders should this court issue, including an order as to costs?
Key legal issues
#Interpretation of the proprietorship section of the title to Machakos Town/Block II/283
Tabitha and Paul were registered owners as trustees for George, Kennedy and Jacquiline, all five being tenants in common in equal shares, each entitled to 1/5th.
The court applied tools of legal interpretation to the words in the proprietorship section, giving effect to their grammatical and legal meaning. It found Tabitha and Paul held not only as owners but also as trustees for the three named beneficiaries as tenants in common in equal shares. With five tenants, each owns 1/5th. Section 91 of the Land Registration Act informs the severable, undivided nature of such shares, and the apex court's description in John Mbogua Getao was applied.
Survival of the trusteeship upon Tabitha's demise
Paul, as surviving trustee, continues to hold the suit property in trust for George, Kennedy and Jacquiline; and cannot deal with it without input of Tabitha's legal representatives.
Applying Section 67 of the Land Registration Act, the court noted the plaintiffs presented no material showing Paul's power to individually exert his mandate under the trust is impeded. As surviving trustee, Paul holds the property in trust. Further, as co-registered owner, Paul cannot deal with the property without the input of Tabitha's legal representatives, who owe statutory duties under Sections 82 and 83 of the Law of Succession Act.
Mootness of the relief seeking nullification of the 1993 commercial lease
The relief is moot because the 30-year lease expired on 1/01/2023, leaving no live controversy.
Adopting the apex court's exposition of the mootness doctrine in Institute for Social Accountability, which cited Borowski v Canada, the court held a court should not decide abstract, academic or hypothetical issues. Since the lease commenced on 1/01/1993 for 30 years and expired on 1/01/2023, entertaining the nullification claim would be an academic exercise. The declaration of nullity sought was therefore refused.
Scope of Tabitha's estate in the pending probate proceedings
Only 1/5th of the suit property is Tabitha's free property and forms part of her estate in Nairobi HC Succession Cause No. 2712 of 2003.
Because the suit property is held in a tenancy in common among five persons, Tabitha's share is limited to 1/5th. The court clarified this to guide the pending probate proceedings, noting that upon death a tenant in common's undivided share forms part of her estate under Section 91(5) of the Land Registration Act. Her estate's administrators also have duties over the property alongside the surviving trustee.
Legal principles established
#- In a tenancy in common, where there are five tenants, each owns an undivided 1/5th share, whether as owner/trustee or beneficiary.
- A surviving trustee continues to hold registered property in trust where no material shows his individual mandate is impeded.
- An issue becomes moot where the underlying controversy has expired and deciding it would be academic.
- Only the deceased's free property (1/5th share here) forms part of her estate in probate proceedings.
Court orders
#- 1.A declaration that Title No. Machakos Town/Block II/283 is owned by Tabitha Kalondu Ngove and Paul Mutulai Ngove in their personal capacities, and that Paul Mutulai Ngove, as surviving trustee, holds it in trust for George Kathendu Ngove, Kennedy Thyaka Ngove and Jacquiline Mumbe Ngove.
- 2.A declaration that, as tenants in common in equal shares, Tabitha Kalondu Ngove, Paul Mutulai Ngove, George Kathendu Ngove, Kennedy Thyaka Ngove and Jacquiline Mumbe Ngove each own a 1/5th share of the suit property.
- 3.Each party to bear their respective 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 over land title interpretation ( plaint dated 10/05/2021; no specific constitutional/statutory basis stated in the judgment)
Relief refused
#Declaration that the commercial lease registered on 24/03/1993 is null and void
The 30-year lease expired on 1/01/2023, rendering the issue moot with no live controversy
Costs
Each party shall bear their respective costs of the 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.
A declaration is hereby issued that as tenants in common in equal shares over Title No. Machakos Town/Block II/283, Tabitha Kalondu Ngove, Paul Mutulai Ngove, George Kathendu Ngove, Kennedy Thyaka Ngove and Jacquiline Mumbe Ngove, respectively, each own a 1/5th share thereof.
A declaration is hereby issued that the Title No. Machakos Town/Block II/283 is owned by Tabitha Kalondu Ngove and Paul Mutulai Ngove in their personal capacities, and as surviving trustee, Paul Mutulai Ngove holds it in trust for George Kathendu Ngove, Kennedy Thyaka Ngove and Jacquiline Mumbe Ngove.
c. Each party shall bear their respective costs of the suit.
While considering this provision of law and keeping in mind the plaintiffs have not presented any material before this court signifying Paul's power to individually exert his mandate under the trust is impeded, this court finds as a surviving trustee, Paul holds the suit property in trust for George, Kennedy and Jacquiline.
Tenants in Common hold in undivided shares. Each tenant in common has a distinct share in property which has not yet been divided among the co-tenants.
Issues in the judgment
#At para 14 the court refers to reliefs sought in 'the motion' although the matter was instituted by a plaint dated 10/05/2021.
The plaint dated 10/05/2021 pleads the lease was 'registered on 24/03/1993' while the issue for determination and the mootness analysis refer to a lease 'dated 1/01/1993'.
The record lists appearances of '1st and 2nd interested parties' though the parties' roles and the coram description of the plaintiffs/defendants are otherwise not fully enumerated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makilya alias Petronilla Mutuku Ngove & another v Kathendu, Ngove and Ngove (Sued in their capacity as the Administrators of the Estate of TabitKalonduha Kalondu Ngove - Deceased) & 2 others; Land Registrar Machakos Land Registry & another (Interested Parties) (Environment & Land Case E047 of 2021) [2025] KEELC 3861 (KLR)", Case Analysis (2025). Machakos ELC (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3861/eng@2025-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.