Keli Christant Musyoka & 2 Others v Peter Kalenze Munguti & 3 Others

2. The 1st and 2nd Defendants who had been duly served neither entered appearance nor filed a defence. It is only the 3rd Defendant who filed defence and participated in the hearing. Plaintiffs’ Case 3. The 1st Plaintiff testified on behalf of the 2 nd and 3rd Plaintiffs. He stated that he and his co-Plaintiffs have been staying on land parcel number 2442 (suit property) for over 40years. The suit property was handed down by their forefathers including their grandfather Mbithuka Nzuasyo. They stated that they have extensively developed the suit property. Their father as well as grandfather are buried on the suit property. 4. The Plaintiffs stated that their grandfather had litigated over the suit property in Uaani District Court in Civil case No. L91 of 1977. The Plaintiffs stated that they have no family or blood relationship with the 1st and 2nd Defendants and that the two Defendants do not reside on the suit property. 5. In or around 2008 the Plaintiffs had a dispute with the 1 st Defendant and a relative of the 2nd Defendant over the suit property. The Plaintiffs filed Machakos HCCC No. 42 of 2010 against the 1 st Defendant and two others. This suit was transferred to Makueni where it became Makueni ELC No. 184 of 2017. The Defendant in that suit were restrained from evicting them from the suit property. 6. During the adjudication process, the 1st and 2nd Defendants were included as co-owners of the suit property. The Plaintiffs’ contention is that the inclusion of the 1st and 2nd Defendants as co-owners of the suit property with the Plaintiff was done through misrepresentation as they do not have a claim to the same. ELC NO. 60 OF 2019 2|Page

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Third Defendant’s Case 7. The Land Adjudication and Settlement Assistant testified that the suit property falls within Ngai Adjudication Section which was established on 30th July, 2013. During the early stages of ascertaining interests in the adjudication section, there was no single case filed in respect of the suit property. Publication of completion of the adjudication process was done on 13th January, 2022 paving way for filing of objections. 8. According to the records held by the Settlement Officer Makueni, the owners of the sit property are the 1st Plaintiff, the 1st and 2nd Defendants. The suit property has objections filed which objections are yet to be determined. A consent was granted to the 1st Plaintiff to file a suit. This consent was given on 21st August, 2008 and extended on 14th February, 2019. 9. There are three objections which were filed over the suit property. Objection number 354 of 2022 was filed by Mary Ngina Mutua. Objection number 228 of 2022 was filed by the 1 st and 3rd Plaintiffs in this case. The witness testified that the rulings in respect of the objections are ready but that the objectors have not gone for the same. Parties Submissions 10.The parties were directed to file written submissions on 10 th March, 2026. As at 4th August, 2026 when writing this judgment, the 3 rd Defendant had not filed submissions. Analysis and Determination 11.I have carefully considered the Plaintiffs’ evidence as well as the evidence of the 3rd Defendant. I have also considered the submissions by the Plaintiffs. The issues which emerge for determination are firstly whether the inclusion of the names of the 1st and 2nd Defendants in the adjudication register in respect of the suit property was lawful. Secondly, whether the names of the ELC NO. 60 OF 2019 3|Page

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1st and 2nd Defendants should be cancelled from the register and replaced with those of the 1st and 3rd Plaintiffs. Thirdly, which order should be made on costs. 12.There is no contention that the suit property is recorded in the adjudication register in the names of the 1st Plaintiff and the 1st and 2nd Defendants. This position was confirmed by the Land Adjudication and Settlement Officer vide his letter dated 11th July, 2018 which was produced as exhibit 3 by the Plaintiffs. I will deal with the first and 2 nd issues together. The Plaintiffs denied having any family or blood relationship with the 1st and 2nd Defendants. 13.Ngai adjudication Section where the suit property falls was established on 30th July, 2013. The 1st Plaintiff obtained consent to file this suit on 21 st August, 2018 which consent was extended on 14th February, 2019. As at this time the interest in respect of the suit property had been recorded in the 1 st Plaintiff’s name as well as the names of the 1st and 2nd Defendants. 14.The Land Adjudication Act provides an elaborate procedure which should be followed in case one is not satisfied with the process. Right from the committee stage to the decision by the Cabinet Secretary, the procedure is clearly stated. In the instant case, the Plaintiffs and particularly the 1 st Plaintiff opted to seek consent to file this suit. He did not want to pursue the established mechanisms provided under the Land Adjudication Act. 15.During the hearing, the 1st Plaintiff conceded during cross examination that he did not file any objection to the inclusion of the names of the 1 st and 2nd Defendants in the register. He conceded that he was present during the adjudication process. He cannot therefore claim that the names of the 1 st and 2nd Defendants were unlawfully included in the adjudication register. 16.The Plaintiffs had been having disputes over the suit property with the 1 st Defendant. This is clear from Makueni ELC case No. 184 of 2017 (formerly Machoks No. 42 of 2010). In this case, the 1 st Plaintiff and two others had ELC NO. 60 OF 2019 4|Page

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filed a suit against the 1st Defendant and two others. They were seeking injunctive orders restraining the Defendants from evicting them. Whereas it is not clear on what basis the Defendants had threatened to evict the 1 st Plaintiff and the others, it is clear that the ownership dispute was not addressed in the judgment which was delivered on 8 th May, 2019. The 1st Defendant and two others were only injuncted from evicting the f1st Plaintiff and two others. There was no declaration that the 1st Defendant and the two others had no stake in the suit property. As at the time this judgment was delivered, Ngai Adjudication Section had been declared and established and interest in the suit property recorded in the names of the 1st Plaintiff. 17.The decision in Uaani district court No. L91 of 1977 was in respect of a boundary dispute and not on ownership. In any case, there is no evidence which was adduced herein to show that the unsuccessful Plaintiffs in that case were related to the 1st and 2nd Defendants in this case. The decision of Justice Mbogo delivered on 8th May, 2019 came after Ngai Adjudication Section and as such the Plaintiffs cannot enforce the same and this explains why the Plaintiffs filed the present suit as a way of trying to bypass the elaborate procedure provided under the Land Adjudication Act. I therefore find that the names of the 1 st and 2nd Defendants were lawfully put in the adjudication register and their names cannot be cancelled and replaced by those of the 1st and 3rd Plaintiffs. 18.The evidence which emerged from the 3rd Defendant is that there are objections filed by the parties herein but the parties have not gone for the verdicts. Now that this case has ended, the parties should go for those rulings and any aggrieved party should move in accordance with the provisions of the Land Adjudication Act. Disposition ELC NO. 60 OF 2019 5|Page

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19.From the above analysis, I find that the Plaintiffs have failed to prove their case. The same is hereby dismissed with costs to the 3rd Defendant only. ........................................................... HON. E. O. OBAGA, FCIArb JUDGE JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 8TH DAY OF OCTOBER, 2026. IN THE PRESENCE OF: Mr. Kilonzi for Mr. Nzei for Plaintiff Court Assistant - Jackline and Steve ELC NO. 60 OF 2019 6|Page

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