Kaburu v Murwanja (Enviromental and Land Originating Summons E039 of 2025) [2026] KEELC 3789 (KLR) (18 June 2026) (Ruling)

Kaburu v Murwanja (Enviromental and Land Originating Summons E039 of 2025) [2026] KEELC 3789 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3789 (KLR) Republic of Kenya In the Environment and Land Court at Meru Enviromental and Land Originating Summons E039 of 2025 BM Eboso, J June 18, 2026 Between Kenneth Mwiti Kaburu Applicant and Stephen Murwanja Respondent Ruling 1.The plaintiff/applicant is a son to one Kaburu Mwongera. The subject matters of this suit are land parcel numbers Kiirua/Naari/1661 and Kiirua/Naari/1945. Up to the year 2024, the two parcels were registered in the name of the late Zipporah Nduru M’Mbiro [hereinafter referred to as “the late Zipporah”]. Zipporah died on 5/5/1997. 2.Succession relating to the estate of the late Zipporah was carried out in Meru High Court Succession Cause No 238 of 2005. Pursuant to a certificate of confirmation of grant issued on 23/9/2024, parcel number Kiirua/Naari/1945 devolved absolutely to Stephen Murwanja while parcel number Kiirua/Naari/1661 devolved absolutely to the late Marion Nkoroi M’Ibuuri. 3.It does emerge from the interlocutory evidence presented in at this point that, the plaintiff’s father, Kaburu Mwongera, was a protestor in the succession cause relating to the estate of the late Zipporah and fully litigated and ventilated his claim in the High Court but lost his bid to inherit the parcels that belonged to the late Zipporah. Vide a ruling dated 18/4/2024, the High Court [Cherere, J] awarded parcel number 1945 to Stephen Murwanja and parcel number 1661 to the estate of the late Marion Nkoroi M’Ibuuri. The High Court issued a confirmed grant to Stephen Murwanja. Aggrieved by the ruling of the High Court, the plaintiff’s father [Kaburu Mwongera] filed Court of Appeal (Nyeri) Civil Application No E077 of 2025 seeking leave to file an appeal out of time. The application was disposed through a ruling by the Court of Appeal [Joel Ngugi, JA] dated 19/9/2025. The Court of Appeal dismissed the application for lack of merit. 4.Soon after the ruling by the Court of Appeal, on 28/11/2025, the plaintiff [a son to Kaburu Mwongera] brought the present suit vide a plaint dated 28/11/2025. He sought: (i) an order decreeing that Kaburu Mwongera and John Muriuki Marete be “registered jointly as proprietors and/or administrators holding parcels LR Nos Kiirua/Naari/1661 and 1945 in trust having been in possession on the part of the owner and in exclusive possession for the statutory period of over 12 years; (ii) a permanent injunction restraining the defendant and his agents from interfering with/trespassing on/alienating/encroaching on/selling or dealing with the two parcels of land; and (iii) an order awarding the plaintiff costs of the suit. 5.Together with the plaint, the plaintiff brought a notice of motion dated 28/11/2025 seeking: (i) an interlocutory order of inhibition barring registration of dealings in the land registers relating to the two parcels; and (ii) an order of interlocutory injunction restraining the defendants and their agents against encroaching on/trespassing on or interfering with the peaceful and uninterrupted user and occupation of the two parcels, pending the hearing and determination of the suit. The said application is the subject of this ruling. The application is vehemently opposed by the defendant. 6.The application was premised on the grounds outlined in the applicant’s affidavit dated 28/11/2025. It was canvassed through written submissions dated 14/5/2026, filed by M/s Otieno C & Co Advocates. The case of the applicant is that his father was a step grandchild of the late Zipporah. The late Zipporah did not have a child of her own. The defendant is not a beneficiary of the estate of the late Zipporah. The defendant was never bequeathed any of the suit lands. He adds that their family has planted mature blue gum trees, cyprus, avocado, bananas and potatoes on the suit land. His father has been taking care of the estate of the late Zipporah. He adds that the defendant is in the process of disposing the suit lands. He urges the court to grant the interlocutory orders. 7.The defendant opposed the application through a replying affidavit dated 15/4/2026. The case of the defendant is that this suit is re-judicata and is an attempt to circumvent the determination in Meru High Court Succession Cause No 238 of 2005 relating to succession to the estate of the late Zipporah. He points out that the plaintiff is a son to Kaburu Mwongera who was a protestor in the succession cause and emphasizes that the succession cause was fully heard and Kaburu Mwongera’s claim was found to be unmerited, adding that the two parcels were duly distributed by the Succession Court. 8.The defendant states that upon the High Court issuing the certificate of confirmation of grant, the same was implemented and parcel number 1945 was registered in his name as the absolute proprietor while parcel number 1661 was registered in his name as an administrator holding it in trust for the estate of the late Marion Nkoroi’s estate. 9.The defendant adds that the applicant’s attempt to file an appeal out of time was rejected by the Court of Appeal after he failed to meet the criteria for enlargement of time. He observes that this suit was filed hot on the heels of the dismissal ruling of the Court of Appeal. 10.The respondent argues that change of parties from father to son does not make the claim different from the claim that was before the High Court, hence the suit is barred under the doctrine of res-judicata. He emphasizes that the two parcels are in use by the beneficiaries of the estate of the late Zipporah. He urges the court to dismiss the application. 11.The court has considered the application; the response to the application; and the submissions that were tendered. The applicant/plaintiff sought an inhibition and an interlocutory injunction. By and large, an inhibition is an interlocutory injunctive order barring the registration of dealings in a land register. The criteria for granting an inhibition is largely the same as the criteria for granting an ordinary interlocutory injunction. Consequently, the single question to be determined in this ruling is whether the application meets the criteria for granting an ordinary interlocutory injunctive order. 12.The relevant criteria on a trial court’s jurisdiction to grant an ordinary interlocutory injunction was outlined by the Court of Appeal for East Africa in the case of Giella v Cassman Brown (1973) EA 358. First, the applicant is required to demonstrate a prima facie case with a probability of success. Second, the applicant is required to demonstrate that if the plea for an interlocutory injunction is declined, he will stand to suffer injury that may not be adequately indemnifiable through an award of damages. Thirdly, should the court have doubt on either or both of the above, the application is to be determined on the basis of the balance of convenience. 13.Over the years, our superior courts have developed a fourth principle to the effect that, at the stage of disposing the plea for interlocutory injunction, the court should refrain from making conclusive or definitive pronouncements on the key issues in the dispute. The courts have emphasized that definitive and conclusive pronouncements/findings should be reserved for the final disposal of the dispute. 14.The Court of Appeal defined a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd & 2 others as follows:“A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 15.Has the plaintiff/applicant demonstrated a prima facie case with a probability of success? The plaintiff seeks reliefs on behalf of his father, Kaburu Mwongera, and on behalf of one John Muriuki Marete. He has not demonstrated that he has the locus standi to litigate on behalf of the duo. 16.Secondly, the duo ventilated their respective claims in the succession court and those claims were found to be unmerited. Through this suit, the duo are using the plaintiff to challenge the findings and succession orders of the succession court. If the duo were dissatisfied with the findings and orders of the succession court, they were entitled to pursue the appeal mechanism within the prescribed limitation period. They failed to do so within the prescribed limitation period. 17.Thirdly, at this interlocutory stage, the applicant has not demonstrated a direct interest in the suit parcels. He purports to claim under his father and one John Muriuki Marete but he is quiet about the question of locus standi. 18.Fourthly, the applicant withheld critical evidence relating to ownership of the suit lands. He presented stale search certificates dated February 2024. The defendant has presented more current search certificates showing that the two parcels of land devolved to the beneficiaries of the estate of Zipporah in November 2024. For the above reasons, I do not think the applicant/plaintiff has demonstrated a prima facie case with a probability of success. 19.On irreparable damage/injury, the plaintiff has not demonstrated any direct interest in the suit parcels. He does not have any permanent structure on the suit lands. He does not reside on the suit lands. There is no demonstration of any imminent irreparable injury. 20.The balance of convenience tilts in favour of respecting the status-quo as decreed by the succession court in which both Kaburu Mwongera and John Muriuki Marete unsuccessfully ventilated their respective claims. 21.The result is that the application dated 28/11/2025 is rejected and dismissed for lack of merit. In tandem with the general principle in Section 27 of the Civil Principle Act, the applicant shall bear costs of the application. DATED, SIGNED AND DELIVERED AT MERU THIS 18TH DAY OF JUNE, 2026.B M EBOSO [MR]ELC JUDGE