Nyakundi & 69 others v Ndungu [2025] KEELC 3471 (KLR)

Nyakundi & 69 others v Ndungu (Enviromental and Land Originating Summons 3 of 2024) [2025] KEELC 3471 (KLR) (30 April 2025) (Judgment)

Neutral citation: [2025] KEELC 3471 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Enviromental and Land Originating Summons 3 of 2024

NA Matheka, J

April 30, 2025

Between

Richard Nyakundi

1st Plaintiff

Grace Makungu

2nd Plaintiff

Neko Holiness Onyiego

3rd Plaintiff

Maurice W Munywoki

4th Plaintiff

James Gathu Muhindi

5th Plaintiff

Jacob K Kangogo

6th Plaintiff

Elizabeth Chepkorir Simatwa

7th Plaintiff

Charles O Mayamba

8th Plaintiff

Esther Mukami Njoroge

9th Plaintiff

Jane Rose Sagala

10th Plaintiff

John Njoroge

11th Plaintiff

Reagan Abere Ombori

12th Plaintiff

Elizabeth Moraa Mogaka

13th Plaintiff

Peter Bosire Nyambane

14th Plaintiff

Roy Makau Peter

15th Plaintiff

Charles Mutange Keya

16th Plaintiff

Pius Wambua

17th Plaintiff

Esther Kimeu

18th Plaintiff

Neliah Mokeira Maranga

19th Plaintiff

Jane Gesare Osano

20th Plaintiff

Edwin Kingoina Onchwari

21st Plaintiff

Luke Kyala Ngesa

22nd Plaintiff

Lydia Mboga

23rd Plaintiff

Thomas Nyabuti

24th Plaintiff

Alex Nyatigo

25th Plaintiff

Peace Muuo Maithya

26th Plaintiff

Mose Melchior Kahi

27th Plaintiff

Dennis Magati Mangera

28th Plaintiff

Phaxides Akumu Omari

29th Plaintiff

Ondara Mark Saiti

30th Plaintiff

John Omusanga

31st Plaintiff

Emma Wambui

32nd Plaintiff

Kepha Ragira Onyancha

33rd Plaintiff

Perpetua Achochi

34th Plaintiff

Isaac Kiage

35th Plaintiff

Roselyne Ogato

36th Plaintiff

Hundson Ototo Achoki

37th Plaintiff

Davis Matoke

38th Plaintiff

Joshua Morara Nyangeri

39th Plaintiff

Simon Ayora

40th Plaintiff

Alfred Kipruto Chekuiyot

41st Plaintiff

Simon Gari

42nd Plaintiff

Nancy Makau

43rd Plaintiff

Francis Ndwati

44th Plaintiff

Albert Omariba

45th Plaintiff

Anyoka Bernard

46th Plaintiff

Kesenwa Maxwell Bulimu

47th Plaintiff

Kinoti Jack

48th Plaintiff

Miruka Babu Dennis

49th Plaintiff

Thomas Mochama Onsando

50th Plaintiff

Clement Mutie Matheka

51st Plaintiff

Philip Ngugi Gitau

52nd Plaintiff

Nyamoko Menta Andrew

53rd Plaintiff

David Onywori Oganda

54th Plaintiff

James Kinyua Giithae

55th Plaintiff

Margaret Nyamasaya Khamala

56th Plaintiff

Tony Ngugi

57th Plaintiff

Mary Kamau

58th Plaintiff

Pius Ndasalila Ndunda

59th Plaintiff

David Were

60th Plaintiff

Benard Njeru Thathi

61st Plaintiff

Michel Miano

62nd Plaintiff

Alexander N Ombori

63rd Plaintiff

Priscillah Vuhya Saliku

64th Plaintiff

Athony Mutua Muthini

65th Plaintiff

Joshua Isoe Tongi

66th Plaintiff

Christopher Ontere Onderi

67th Plaintiff

Kennedy Ooko Odhiambo

68th Plaintiff

George Omwega Nyamosi

69th Plaintiff

Sammy Kitau

70th Plaintiff

and

Ann Wairimu Ndungu

Defendant

Judgment

1. The application is brought under Order 37 Rule 3 of the Civil Procedure Rules Richard Nyakundi for determination of the following questions:-a.Whether the Defendant is the registered owner of Land Title Number 7340/148. b.Whether in the year 2006 the Defendant sub-divided her land known as L.R No. 7340/148 situated at Mavoko in Machakos County into 133 plots.c.Whether the Defendant offered the said plots for sale to the general public and the Plaintiffs purchased the same on various dates between 2006 and 2020. d.Whether the Defendant was paid the sale price in full for the plots by the Plaintiffs.e.Whether the Defendant issued the Plaintiffs with Certificates of Ownership.f.Whether the Defendant gave possession of the plots to the Plaintiffs.g.Whether it was a term of the contract of sale that the Defendant will facilitate issuance of title deeds to the Plaintiffs within a reasonable time.h.Whether the Defendant has failed, refused and or neglected to obtain the necessary clearances and consents and execute transfers in favour of the Plaintiffs in order for them to obtain titles.i.Whether the Plaintiffs have demanded that the Defendant completes the conveyance of the plots.j.Whether the Defendant should be ordered to complete the sale by obtaining the necessary clearances and consents and executing the transfers within a specified period.k.Whether the land should be transferred to the nominees of the Plaintiffs on their behalf and for their benefit.l.Whether the Deputy Registrar of this Honourable Court should be mandated/ordered to execute the transfer instruments in the event the Defendant declines to do so.m.Whether the Chief Lands Registrar should be ordered to issue a title deed to the nominees of the Plaintiffs notwithstanding the fact that the Defendant has not surrendered the original title deed.

2. hey pray for orders that;1. That the Defendant ANN WAIRIMU NDUNGU be ordered to complete the contract of sale of Land Parcel Number L.R. No. 7340/148 by obtaining all the necessary clearances and executing the transfers to the Plaintiffs or their nominees within 30 days of this order.2. That in default the Deputy Registrar of this Honourable Court do execute any documents and instruments as may be necessary to effect the transfers to the Plaintiffs or their nominees.3. That the Chief Land Registrar do cancel the original title deed held by the Defendant in respect to the suit property and issue a title deed to the Plaintiffs or their nominees.4. That this Honourable Court be pleased to appoint the persons proposed by the Plaintiffs as their nominees for the aforesaid purposes.5. That the Defendant to pay the costs of this Originating Summons

3. This Originating Summons is further supported by the annexed Supporting Affidavit of Richard Nyakundi. The Defendant was served but failed to attend court and the matter proceeded exparte. PWI testified that the Defendant is the registered owner of Land Title Number 7340/148 and produced a copy of the title PEx2. That in the year 2006 the Defendant sub-divided her land known as L.R No. 7340/148 situated at Mavoko in Machakos County into 133 plots. A copy of the subdivision was produced as PEx3. The Defendant offered the plots for sale and the plaintiffs bought them between 2005 and 2009. The Defendant issued them with plot ownership certificated which she signed PEx4. The Plaintiffs took possession and have developed their homes. The Defendant has failed, refused and or neglected to obtain the necessary clearances and consents and execute transfers in favour of the Plaintiffs in order for them to obtain titles.

4. It is not disputed that the suit land belongs to the Defendant. The Land Registration Act is very clear on issues of ownership of land and Section 24(a) of the Land Registration Act provides as follows;“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”

5. Section 26 (1) of the Land Registration Act states as follows;“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except –a.On the ground of fraud or misrepresentation to which the person is proved to be a party; orb.Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

6. The Plaintiffs state that they purchased the said plots and took possession. This evidence has not been controverted. I find that the Plaintiffs are bonafide purchasers and have a legitimate expectation not only to be in possession of the plots but also to obtain the titles. I find that the Plaintiffs have proved their case on a balance of probabilities and I grant the following orders;1. The Defendant ANN WAIRIMU NDUNGU be ordered to complete the contract of sale of Land Parcel Number L.R. No. 7340/148 by obtaining all the necessary clearances and executing the transfers to the Plaintiffs or their nominees within 60 days of this order.2. In default the Deputy Registrar of this Honourable Court do execute any documents and instruments as may be necessary to effect the transfers to the Plaintiffs or their nominees.3. Costs to the Plaintiffs

It is so ordered.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 30THDAY OF APRIL 2025. N.A. MATHEKAJUDGE