https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4304

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC APPEAL NO. E001 OF 2026** **MUKULU MUIA.....................………………………………….APPELLANT** **-VERSUS** **JOSEPH MBITHI KING’OKU.......................... ………….....RESPONDENT** **RULING** 1. This is a ruling in respect of a notice of motion dated 5th January, 2026 in which the Appellant/Applicant seeks the following orders: 2. **Spent** 3. **Spent** 4. **That permanent orders of injunction be issued prohibiting the Respondent, his agents, servants and/or any other person claiming under him from cultivating, cutting down trees, entering into, trespassing, occupying, fencing, engaging in any acts of waste and/or in any other way from interfering with the status quo of the said land parcel No. Okia/Nzuuni/18 pending hearing and determination of the suit herein.** 5. **That costs of this application be provided for.** 6. **That this honourable court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case.** 7. The Respondent had sued the Applicant in Makueni MCELC E013 of 2021 for encroachment into LR No. Okia/Nzuuni/18. After conclusion of the hearing, the trial magistrate granted a permanent injunction against the Applicant prohibiting her from interfering with the suit property. 8. The Applicant was aggrieved with the judgment and filed an appeal against it to this court. It is on the basis of the pending appeal that she has filed the present application. 9. The Applicant contends that the suit property was fraudulently excised from parcel No. Okia/Nzuuni/11 which belonged to her mother. She states that she has been staying on the suit property for over 60 years. She states that the Respondent has never utilized the suit property and that he started doing so after her mother passed away. 10. The Applicant’s application was opposed by the Respondent through a replying affidavit sworn on 10th March, 2026. The Respondent contends that the Applicant’s application is an abuse of the process of court as it seeks to restrain him from enjoying the fruits of a judgment given in his favour. He states that the dispute between him and the Applicant was resolved in a judgment which was delivered in Makueni MELC E013 of 2021. 11. The Respondent states that there is no stay against the said judgment. He contends that he has been in possession of the suit property and fenced it when the court delivered judgment. The Respondent states that the Applicant has filed ELC No. E039 of 2025 which is running parallel to the appeal which she has filed. 12. The parties were directed to file written submissions in respect of the application. The Applicant filed her submissions dated 6th May, 2026. The Respondent filed his submissions dated 9th March, 2026. 13. The Applicant submitted that the court should be guided by the principles set out in the case of **Patricia Njeri & 3 Others –vs- National Museums of Kenya** **(2004) KEHC 1614 (KLR)**. The Applicant also submitted that the court should be guided by the principles set out in the case of **Giella –vs-** **Cassman Brown & Co. Ltd (1973) EA 358.** 14. The Respondent submitted that the Applicant had not met the threshold for grant of injunction as set out in the case of **Giella –vs- Cassman Brown & Co.** **Ltd (Supra).** 15. I have considered the Applicant’s application, the opposition to the same by the Respondent as well as the submissions by the parties. The only issue for determination in this matter is whether the Applicant has met the threshold for grant of injunction pending appeal. 16. From the materials before me, there is no contention that the Respondent has a judgment in his favour in respect of the suit property. An injunction has been granted in favour of the Respondent. There is also no contention that the Applicant is in control of parcel No. Okia/Nzuuni/11 which belongs to her deceased mother. 17. The Respondent stays on the suit property but the Applicant had been utilizing part of it which resulted in the Respondent filing a suit against the Applicant which culminated in filing of the appeal which is now the subject of this application. 18. From the materials before me the Applicant has not demonstrated that there are any circumstances which will render her appeal nugatory. She will not suffer any prejudice even if the injunctive orders were not granted. The Respondent has merely fenced his property which will not in any way affect the interests of the Applicant who resides on the property which is separate from that of the Respondent. I therefore find no merit in this application which is dismissed with costs to the Respondent. It is so ordered. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 13TH DAY OF JULY 2026.** **IN THE PRESENCE OF:** Mr. Kilonzi for Applicant Court assistants – Kilonzo and Musyoki