https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4919

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC APPEAL NO. E021 OF 2026** **BONIFACE FRANCIS MAKAU.......………………………….APPELLANT** **-VERSUS** **THOMAS MUTUKU MUNYAO.................................…..1ST RESPONDENT** **JOHN WAMBUA............................................................... 2ND RESPONDENT** **RULING** 1. This is a ruling in respect of a notice of motion dated 2nd July, 2026 in which the Appellant/Applicant seeks the following orders: 2. **Spent** 3. **Spent** 4. **That this honourable court be pleased to grant orders for stay of proceedings in Makueni ELC E002 of 2026 Thomas Mutuku Munyao & John Wambua -vs- Boniface Francis Makau pending the hearing and disposal of this appeal.** 5. **Spent** 6. **That this honourable court be pleased to grant an injunction to restrain the Respondent, their servants, nominees, agents and/or any such persons from in any manner whatsoever interfering with the Applicants’ property known as Makueni/Kasunguni/1539, Makueni/Kasunguni/1549 and Makueni/Kasunguni/1551 pending the hearing and finalization of this appeal.** 7. **That costs of this application be provided for in any event.** 8. The Applicant and the Respondents are brothers. The Applicant is the eldest brother to the Respondents. The father of the parties herein passed away in 2005 whereas their mother passed away in 2014. 9. The Respondents filed a suit before the lower court in which they sought the following reliefs against the Appellant. 10. **A declaration that Boniface Francis Makau, the Defendant herein, though registered as the proprietor of land parcels known as Makueni/ Kasunguni/1539, Makueni/Kasunguni/1549 and Makueni/Kasunguni/1551, was registered and has at all material times held the said parcels in customary and ancestral trust for the benefit of the children of the late Nicholas Munyao and Margaret Mutave Munyao, including the Plaintiffs herein, and that his registration was through misleading the land registrar and the Adjudication Officer to fraudulently register the parcels in his name.** 11. **A declaration that the Plaintiffs are beneficial owners entitled to defined shares of the suit parcels.** 12. **An order that the titles issued in respect of land parcels Makueni/Kasunguni/1539, Makueni/Kasunguni/1549 and Makueni/Kasunguni/1551 be and are hereby nullified, cancelled and set aside, the same having been procured by fraud and held subject to a customary trust which has now been declared by this honourable court.** 13. **An order that land parcels number Makueni/Kasunguni/1539, Makueni/Kasunguni/1549 and Makueni/Kasunguni/1551, or such portions thereof as this honourable court shall deem just, revert to and be vested in the estate of the late Margaret Mutave Munyao (Deceased), to be held as estate property subject to the customary trust herein declared, and thereafter to be administered and distributed in accordance with the Law of Succession Act for the benefit of all her lawful beneficiaries.** 14. **A permanent injunction restraining the Defendant, his servants, agents and/or assigns from selling, charging, leasing, transferring, wasting, subdividing or otherwise dealing with land parcels Makueni/Kasunguni/1539, Makueni/Kasunguni/1549 and Makueni/Kasunguni/1551, or any part thereof, in any manner prejudicial to or inconsistent with the Plaintiffs’ beneficial interests.** 15. **Costs of the suit and interest thereon be borne by the Defendant** 16. **Such further or other relief as this honourable court may deem just.** 17. The Appellant filed a defence and counterclaim in which he sought the following reliefs. 18. **A permanent injunction restraining the Plaintiffs, their agents, employees, assignees and/or servantsfrom in any manner whatsoever trespassing, claiming, dissipating and/or interfering in any whatsoever with land pieces Makueni/Kasunguni/1539, Makueni/Kasunguni/1549 and Makueni/Kasunguni/1551.** 19. **Costs of this suit and of the counterclaim to be borne by the Plaintiff.** 20. **Interests on (b) at court rates.** 21. The Applicant filed a preliminary objection on grounds that the Respondents had no locus standi to bring the suit against him. In a ruling delivered on 25th May, 2026, the trial magistrate dismissed the Applicant’s preliminary objection on two grounds namely that the suit by the Respondent was based on ancestral or customary trust and that the preliminary objection was based on contested facts which required ascertainment. 22. The Appellant then preferred an appeal against the ruling dismissing his preliminary objection and is now seeking stay of proceedings and injunctive orders. The Applicant contends that he is the registered owner of the suit properties and that the trial magistrate was wrong in dismissing the preliminary objection holding that the case required ascertainment of the facts at the hearing. 23. The Respondents opposed the Applicant’s application based on a replying affidavit sworn on 15th July, 2026. The Respondents contend that the Applicant is merely using the title deeds which he obtained fraudulently to block them from proceeding with their suit. They state that their claim is not brought on behalf of the estate of either their father or mother but rather based on customary trust which does not require grant of letters of administration. 24. I have carefully considered the Applicant’s application as well as the opposition to the same by the Respondents. There are two issues which stand out for determination. The first is whether the Applicant has met the threshold for stay of proceedings. The second is whether the Applicant has met the threshold for grant of injunction. In both issues, the Applicant was expected to demonstrate a strong arguable case and that absent stay of proceedings or injunction, the appeal filed will be rendered nugatory. 25. Stay of proceedings is a discretionary remedy which is granted sparingly. The grounds upon which it can be granted were well captured by Justice Ringera (as he then was) in **Re Global Tours and Travel Ltd**. The Applicant has not demonstrated any of the grounds set out in the **Re Global Tours & Travel Ltd** **case (Supra).** 26. On the material placed before the court, the Applicant has not demonstrated that he has a prima facie case to warrant issuance of injunction. His suit will not be rendered nugatory if the case proceeds to hearing before the trial court. I therefore find that the Applicant’s application is devoid of merit. The same is dismissed with costs to the Respondents. It is so ordered. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 30TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Mr. Mutuku and Ms. Owino for Applicants. Mr. Muthui for Respondent. Court assistant - Kilonzo