https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4505

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC CASE NO. E002 OF 2026** **JOHN KYULE KIOKO (On his behalf and on behalf of the Estate of the late Kioko Ndulani) ................................................................................PLAINTIFF** **-VERSUS-** **DUNCAN KIOKO KATIO (Sued through Estate/Beneficiaries of the Estate of the late Matu Ndulani....………………….........................1ST DEFENDANT** **JAMES KATIO.....................................................................2ND DEFENDANT** **MATU MBAE KATIO..........................................................3RD DEFENDANT** **RULING** 1. This is a ruling in respect of a notice of motion dated 30th January, 2026 in which the Plaintiff/Applicant seeks the following orders: 2. **Spent** 3. **An injunction restraining Defendants from interfering with parcel No. LR Makueni/Kilome/758 pending hearing and determination of this suit.** 4. **OCS Kilome police station to assist in enforcement.** 5. **Costs in the cause.** 6. The Applicant had filed a suit against the Defendants/Respondents in which he sought the following reliefs: 7. **A permanent injunction restraining the Defendants from entering, cutting trees, excavating, constructing, selling, or interfering with Land Parcel No. Makueni/Kilome/758.** 8. **A declaration that parcel No. 758 lawfully belongs to the estate of Kioko Ndulani.** 9. **An order for restoration and compensation for destroyed trees and environmental damage.** 10. **Costs and interest of the suit.** 11. **Any other relief this honourable court deems fit.** 12. The Applicant who does not disclose his relationship with the late Kioko Ndulani contends that he is bringing the suit and application on his own behalf and on behalf of the estate of the late Kioko Ndulani. He states that he has legitimate interest and claim over parcel No. 758. 13. The Applicant states that during the Adjudication process within Kilome Adjudication Section two brothers namely Kioko ndulani and Matu Ndulani were separately allocated land within the Adjudication Section. Kioko Ndulani was allocated parcel 758 and Matu Ndulani was allocated parcel 756. The two brothers have since died. 14. After conclusion of the adjudication process, the 1st Respondent acting on behalf of the estate of Matu Ndulani lodged an appeal being Adjudication case No. 71 of 2011. After the Minister heard the appeal, he ruled that parcel 758 should be shared between the family of Kioko Ndulani and Matu Ndulani whereas parcel 756 was given entirely to the family of Ndulani Matu. 15. It is the Applicant’s contention that the decision of the Minister was procedurally flawed, biased, irregular and malicious and was improperly influenced by then Deputy County Commissioner Mukaa Sub-County who had personal and familial ties with the Respondents’ family. He further contends that no Independent Land Adjudication Officer was called to give evidence during the appeal and that the decision was arrived at based on unverified and one sided testimony of the Respondents. 16. The Applicant states that one Johanes Mutuku Kioko was falsely presented during the appeal proceedings as a grandson of Matu Ndulani whereas the truth is that he is son and beneficiary of Kioko Ndulani. He further states that a son to James Katio Matu who had no historical or legal connection to the suit land was irregularly allowed to tender falsified and misleading evidence. 17. The Applicant states that based on the outcome of the appeal, the Respondents have forcefully moved to parcel 758 and proceeded to cut down indigenous trees and excavating the suit property. It is on this basis that he seeks injunctive orders against the Respondents whom he states are trespassers. He states that he has annexed photographs confirming the ongoing destruction. 18. When this matter was filed under certificate of urgency, the court directed that the application be served for interpartes hearing on 4th March, 2026. On 4th March, 2026 the court gave directions as to the filing of replying affidavit and further affidavit if need be. The court also directed that parties exchange written submissions as per timelines given. The directions were given in the presence of counsel for the parties. The matter was fixed for mention on 20th April, 2026 when the court reserved ruling for 16th July, 2026. 19. As at the time of writing this ruling on 8th July, 2026, the Respondent had not filed any response to the application or submissions. The Applicant had also not filed any submissions. This notwithstanding, I must determine whether the Applicant has demonstrated that he has a prima facie case with probability of success. 20. The Applicant has not disclosed when the appeal before the Minister was made. He simply states that the Minister ordered that parcel 758 should be shared between the family of Kioko Ndulani and Matu Ndulani without disclosing in what proportions. From what the Applicant has deponed, the suit property that is parcel 758 was subject of adjudication under the Land Adjudication Act. 21. There is no mention whether the Applicant filed any judicial review proceedings or constitutional petition from the impugned decision of the Minister. If the Respondents have moved to parcel No. 758 pursuant to the Minister’s decision and there being no mention whether the Applicant filed judicial review proceedings or constitutional petition, I do not see what prima facie case he has to warrant issuance of injunctive orders against implementation of the Minister’s decision. I therefore find no merit in this application which is dismissed with no orders as to costs as the Respondents did not oppose the same. It is so ordered. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 16TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Mr. Ndichu for Plaintiff/Applicant. Mr. Gachoka for Defendant/Respondent Court assistant - Musyoki