https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4334

Maingi v Muema & 9 others (Environment and Land Case E004 of 2026) [2026] KEELC 4334 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4334 (KLR) Republic of Kenya In the Environment and Land Court at Makueni Environment and Land Case E004 of 2026 EO Obaga, J July 9, 2026 Between Urbanus Muli Maingi Plaintiff and Theresia Kaniini Muema 1st Defendant Magrete Mueni Muema 2nd Defendant Peter Mutua Muema 3rd Defendant Anthony Kioko Muema 4th Defendant Franciscah Nthenya Muema 5th Defendant Jackline Waeni Muema 6th Defendant Judith Mumbi Waima 7th Defendant Lawrence Mbai Muema 8th Defendant Agnes Mutono Muema 9th Defendant Ruth Mumo Muema 10th Defendant Ruling 1.This is a ruling in respect of a notice of motion dated 16th February, 2026 in which the Plaintiff/Applicant seeks the following orders:1.Spent2.Spent3.That pending hearing and determination of this application interparties the honourable court to issue an order directing the Makueni Land Registrar and District Surveyor do visit and implement, reestablish, verify a boundary between plots No. Ukia/Kaumoni 690 and 393.4.That pending the hearing and determination of the main suit, an order of injunction does issue, restraining the Defendants/Respondents from trespassing, subdividing, alienation, grazing farming, developing and/or building on plot No. Ukia/Kaumoni/690.5.That the OCS Mukuyuni police station do enforce compliance.6.That the costs of the application be borne by the Respondents. 2.The Applicant is the registered owner of LR No. Ukia/Kaumoni/690 which borders among other parcels LR No. Ukia/Kaumoni/393 which is registered in the name of Kyengo Mbai. He engaged the services of Land Registrar and surveyor from Makueni County Land Registry who want to the ground to establish the boundary between the two parcels but the same could not be done as the Defendants/Respondents had erected a fence which barred the Land Registrar from accessing the disputed part to fix the boundary. 3.The Applicant states that he had engaged a private surveyor who did an aerial map which shows that the Respondents have trespassed into his parcel by about one acre. He further states that when he purchased his parcel from one Silingi Mutilu Wewa, the beacons marking the boundary were clearly marked on the ground but that the Respondents removed them in 2024. He contends that from the official map of the area, the boundary between his plot and that of Kyengo Mbai is straight but the boundary on the ground is zigzag. 4.The Applicant’s application was opposed by the Respondents through a replying affidavit sworn on 11th March, 2026. The Respondents contend that the Applicant’s application is misconceived, frivolous and an abuse of the process of court. They state that save for the 1st Respondent who is daughter in law of Kyengo Mbai, they are all grandchildren of Kyengo Mbai and have no capacity to defend this suit as they are not the administrators of his estate. 5.The Respondents state that the boundary between the two parcels was established in 2024 by a private surveyor in the presence of all parties. They state that there has been an existing boundary of sisal plants and that they have never destroyed any boundary or trespassed on to the property of the Applicant. 6.The Respondents further state that if there is any existing boundary dispute between the Applicant and neighboring plots, then it is the mandate of the Land Registrar to fix the same under Section 18 and 19 of the Land Registration Act. 7.The Respondents further state that the Applicant has not demonstrated that he deserves an injunction. They state that he should have first exhausted the mechanisms provided before coming to court. 8.In a further affidavit sworn on 15th April, 2026 the Applicant states that the Respondents have been sued in their individual capacities since they are the ones who have extended the boundaries and prevented the Land Registrar from carrying out his duties. The Applicant states that his attempt to fix the boundary through a private surveyor was not successful as the surveyor was prevented from doing so by the Respondents. 9.The parties were directed to file written submissions. The Applicant filed his submissions dated 20th May, 2026. The Respondents filed their submissions dated 23rd April, 2026. I have carefully considered the Applicant’s application, the opposition to the same by the Respondents as well as the submissions by the parties. The issues which emerge for determination are firstly, whether the Applicant has met the threshold for grant of injunction. Secondly, whether there is need to make an order that the Land Registrar fixes the boundary between the Applicant and the Respondents in these proceedings. 10.On the first issue, the principles for grant of the temporary injunction were well stated in the case of Giella –vs Cassmann Brown & Co. Ltd (1973) EA 358. First an Applicant has to demonstrate that he has a prima facie case with probability of success. Second, an injunction cannot be given unless the Applicant will suffer injury which will not be compensated in damages. Thirdly, if the court is in doubt, it will decide the matter on a balance of convenience. 11.The Applicant has not demonstrated a prima facie case to warrant issuance of injunction. There is no evidence of any encroachment to his land by the Respondent. Even if there was to be encroachment which has not been demonstrated at the moment, damages will be an adequate remedy if the same was to be proved. 12.On the second issue, the dispute herein is purely on boundary. Under Section 18 of the Land Registration Act, this court is not supposed to entertain any proceedings regarding boundary dispute unless the Land Registrar has established the boundary. It is evident that the Land Registrar was willing to do his work but was only prevented from doing so as he could not access the disputed portion. What the Applicant would have done was to simply ask for police protection during the determination of the boundary dispute and not by filing a substantive suit. This would have been achieved through a miscellaneous application for police assistance. 13.As the Applicant has not demonstrated that he has a prima facie case and having failed to demonstrate that the mechanism under Section 18 of the Land Registration has been exhausted, I find no merit in this application which is dismissed with costs to the Respondent. This is a matter within the pecuniary jurisdiction of a chief Magistrates court. This case is therefore transferred to Makueni Chief Magistrates Court for hearing and disposal.It is so ordered. HON. E. O. OBAGA, FCIArbJUDGERULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 9TH JULY, 2026.In The Presence Of:Ms. Kyalo for RespondentsMr. Wasolo for Applicant.Court assistants- Steve Musyoki and Kilonzo