Malakwen (Suing on her Own Behalf as the Legal Representative of the Estate of the Late Malakwen arap Butia - Deceased) & 4 others v Tanui (Being sued as the Administrator of the Estate of the Late Kiptarus Butia alias Kiptarus s/o Butia - Deceased) (Enviromental and Land Originating Summons E011 of 2025) [2026] KEELC 4974 (KLR)
The bottom line
#A Kenyan land dispute over Nandi/Serem/610 ended in a mediated settlement, with the court adopting the parties' consent as its judgment instead of deciding the adverse possession claim.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The respective parties' title to the suit property
- 2.Whether the consent recorded in mediation has settled the issues in the present dispute
Key legal issues
#Whether the mediated consent settles the dispute and may be adopted as judgment
The court held that the parties voluntarily entered into and fully participated in reaching the consent, and it was entered into in the spirit of Article 159(2)(b) and (c); it was therefore adopted as the judgment of the court
The parties, through counsel, had referred the matter to court-annexed mediation under Article 159(2)(c) and the Civil Procedure (Court Annexed Mediation) Rules 2022. A signed consent dated 28th July 2026 recorded the subdivision and registration terms. Relying on the Supreme Court's pronouncement in Geoffrey M. Asanyo, the court noted that a consent becomes an order of the court upon formal adoption, and found all issues resolved in terms of the consent.
Legal principles established
#- A consent by parties becomes an order of the court only once it has been formally adopted by the court
Court orders
#- 1.The consent dated 28th July 2026 adopted as the judgment of the court in the instant suit
- 2.The subject matter Nandi/Serem/610 be subdivided into two portions measuring 4.712 Acres and 11.165 Acres in tandem with the sketch survey map dated 26th May 2026
- 3.The portion marked 'A' 4.712 Acres be registered in the name of Robai Malakwen
- 4.The remaining portion marked 'B' 11.165 Acres be distributed to the estate of Kiptarus Butia alias Kiptarus S/O Butia (Deceased) in Kapsabet Succession Cause No. E144 of 2024
- 5.The matter be marked as settled with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 159(2)(b) and (c) of the Constitution of Kenya 2010 and the Civil Procedure (Court Annexed Mediation) Rules 2022
Relief refused
#Prayed declarations of adverse possession and registration orders as sought in the originating summons
The suit was resolved by consent in mediation rather than adjudicated; the consent terms differ from the prayers
Costs
No orders as to costs - the matter marked as settled with no orders as to costs
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.
Accordingly, the consent dated 28th July 2026 set out in paragraph 4 (a) (b) and (c) hereinabove is hereby adopted as the judgment of the court in the instant suit.
It is so ordered.
Thus, a consent by parties becomes an order of the court only once it has been formally adopted by the court
the parties entered into the consent in the spirit of Article 159 (2) (b) and (c) of the Constitution of Kenya 2010
Issues in the judgment
#The originating summons is dated 14th October 2025 while the suit number is of 2024, and the consent is dated 28th July 2026, the same date the judgment was delivered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malakwen (Suing on her Own Behalf as the Legal Representative of the Estate of the Late Malakwen arap Butia - Deceased) & 4 others v Tanui (Being sued as the Administrator of the Estate of the Late Kiptarus Butia alias Kiptarus s/o Butia - Deceased) (Enviromental and Land Originating Summons E011 of 2025) [2026] KEELC 4974 (KLR)", Case Analysis (2026). ELC OS NO. E011 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4974/eng@2026-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.