https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4413

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELCLC NO. E035 OF 2025** **WILSON MUTUA NGEWA ......................................PLAINTIFF/APPLICANT** **-VERSUS-** **FLORENCE WANZA MUSILI (Sued as the administrator of the Estate of** **KALONDU MUSILI KISILU *alias* KALONDU MUSILI** **KISIU) …………………......................................DEFENDANT/RESPONDENT** **RULING** 1. Before this court for determination is the Notice of Motion dated 26th September, 2025 brought under the provisions of Sections 1A, 1B, 3A and 6 of the Civil Procedure Act in addition to Order 40 Rules 1 and 4 of the Civil Procedure Rules. The Plaintiff/Applicant seeks issuance ofthe following orders:- 2. **[*SPENT*]** 3. **[*SPENT*]** 4. **THAT the court be pleased to grant a temporary injunction restraining the Respondent whether by herself, her agents and/or servants from cutting down trees, pitching tents and/or any structure temporary or otherwise, digging holes for pit latrine or any other purpose; or otherwise interfering with and acting on the suit property KISAU/SAKAI/273 in any manner whatsoever pending the hearing and determination of the main suit.** 5. **THAT the court be pleased to issue a temporary injunction restraining the Respondent whether by herself, her agents and/or servants from performing any and all acts amounting to use of the suit property including but not limited to actively cutting down trees on a daily for firewood and charcoal pending hearing and determination of the main suit herein.** 6. **THAT the Officer Commanding Mbumbuni Police Station do enforce compliance of the orders above.** 7. **[*SPENT*]** 8. **THAT the court be pleased to issue stay orders over Makueni Chief Magistrates Court Succession Cause No. E152 of 2023 IN THE MATTER OF THE ESTATE OF KALONDU MUSILI KISILU *alias* KALONDU MUSILI KISIU** (FLORENCE WANZA MUSILI (Petitioner) & WILSON MUTUA NGEWA (Protestor) pending hearing and determination of the main suit herein. 9. **THAT the costs of this application be provided for.** 10. **THAT the Honourable Court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case.** 11. The application is based upon the supporting affidavit of Wilson Mutua Ngewa sworn on even date. 12. The Applicant averred that he purchased all that land known as Parcel No. KISAU/SAKAI/273 from Kalondu Musili Kisilu and is therefore the rightful owner. It was his case that he purchased the suit property in small portions between the years 1984 and 2008. He contended that he has been enjoying the rights and privileges as the owner of the suit property for about forty-two (42) years. He further contended that Respondent was issued with a certificate of confirmation of grant vide Makueni CMSC No. E152 of 2023 and has sought to transfer the suit property solely in her name. 13. The Applicant insisted that he is unable to carry out farming in the suit property as usual as the Respondent continuously cuts down trees for firewood and charcoal adding that she has also dug a pit latrine in the land. He contended that he has heavily invested in the land and his ownership is now threatened by the Respondent who is attempting to forcefully take back what is rightfully his. He urged that unless restrained by this court, he will suffer irreparable damage on account of the Respondent’s acts of destruction on the land. 14. The Respondent did not file a response to the application either by way of a replying affidavit or grounds of opposition in accordance with Order 51 Rule 14 of the Civil Procedure Rules. 15. The Applicant filed submissions dated 30th January, 2026. On his behalf, Counsel identified the following issues for determination: - 16. *Whether the Applicant is entitled to the temporary injunctive reliefs sought; and* 17. *Whether the Honourable Court should grant stay orders and subsequently stay proceedings under Makueni Chief Magistrates Court Succession Cause No. E152 of 2023 In the matter of the Estate of Kalondu Musili Kisilu.* 18. Submitting on the first issue, Counsel reiterated that the Applicant is the owner of the suit property having purchased the entire land in various portions between the years 1984 and 2008. He reiterated that the Applicant has grown different kinds of trees, built a sand dam and practices large scale mixed farming in development of the suit property. 19. Counsel asserted that the Applicant cited the Respondent in the succession proceedings in order to protect his interest in the land only for the Respondent to claim the suit property in totality without regard to the fact that the same had been sold to him by the Respondent’s late mother, Kalondu Musili Kisilu. That with the force of letter 41 issued in Makueni CMCSC No. E152/2023, the Respondent has entered the suit property and caused waste to the same and has also threatened to sell the land. 20. Counsel submitted that the Applicant had demonstrated the existence of a prima facie case and that there is a likelihood of irreparable injury if the injunctive orders are not granted. 21. Submitting on the second issue, Counsel contended that the provisions of Section 101 of the Land Registration Act, 2012 vests this court with jurisdiction to hear and determine disputes and proceedings concerning land. Therefore, it is in the interest of justice that the pending succession cause touching on ownership of the suit property be stayed. Reliance was placed on the case of **Rono b Bank of Africa Limited & another (Commercial Case E005 of 2025) [2025] KEHC 9089 (KLR)** to buttress the Applicant’s submissions. 22. There are two issues for determination in this application namely: - 23. ***Whether the Applicant has met the legal threshold for issuance of the injunctive orders sought; and*** 24. ***Whether this court can stay proceedings in Makueni Chief Magistrates Court Succession Cause No. E152 of 2023 IN THE MATTER OF THE ESTATE OF KALONDU MUSILI KISILU alias KALONDU MUSILI KISIU*** 25. The prerequisite conditions for a grant of injunctive orders under Order 40 Rule 1(a) of the Civil Procedure Rules were determined in the celebrated case of **Giella v Cassman Brown & Co Ltd [1973] 1 EA 358 at 360 (CAK)** as follows: - ***“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience. (E.A. Industries v. Trufoods, [1972] E.A. 420.)”*** 1. In **Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR** the Court of Appeal defined a prima facie case in the following terms: - ***“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.”*** 1. Central to the determination of the matter at this interlocutory stage, is whether the Applicant has established that his possessory right to the suit property is under threat by the Respondent after deriving a beneficial interest thereof from purchase. The material placed before this court included several sale agreements between the Applicant and Kalondu Musili Kisilu (Deceased) as the proprietor of the suit property. The Applicant also produced photographic evidence showing trees and crops growing within the suit property. He also produced a photograph depicting a sand dam that the has put up together with his neighbour within the suit property. 2. The Applicant’s evidence of possession of the suit property was not challenged by the Respondent. At this stage, it is prudent to remind ourselves that a determination of ownership of the suit property is not being made. Rather, that there is prima facie evidence of a genuine threat to the Applicant’s right to the suit property. 3. In the case of **American Cyanamid Co. v Ethicon Limited [1975] 1 ALL ER 504**, Lord Diplock aptly observed as follows: - ***“It is no part of the Court's function at this stage of the litigation to try and resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.”*** 1. From the material produced by the Applicant, it is evidently clear that a prima facie case of a threat to his property rights in the land has well been demonstrated. 2. The Applicant contended that his lawful and quiet possession was subsequently disrupted through acts of trespass attributed to the Respondent. On this claim, he produced photographic evidence (WMN-5) showing trees which had been freshly cut down, a makeshift tent structure and a freshly dug pit latrine. Again, this evidence was not challenged by the Respondent. 3. On the basis of the alleged acts by the Respondent, the Applicant has made out a case of irreparable harm as there is a real risk of being dispossessed and possible alienation of the suit property which would not be adequately compensable in damages. 4. This court is adequately satisfied that the first two limbs of the test in **Giella** (supra) have been surmounted by the Applicant. As there is no uncertainty on the foregoing, then a consideration of the balance of convenience requirement is superfluous. 5. On stay of proceedings in ***Makueni Chief Magistrates Court Succession Cause No. E152 of 2023 IN THE MATTER OF THE ESTATE OF KALONDU MUSILI KISILU alias KALONDU MUSILI KISIU***, this court’s jurisdiction is outlined under Section 13 (2) of the Environment and Land Court Act in the following terms: - **(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—** 1. **Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;** 2. **Relating to compulsory acquisition of land;** 3. **Relating to land administration and management;** 4. **Relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and** 5. **Any other dispute relating to environment and land.** 6. In the case of **Karanja & another v Kamau [2025] KEELC 367 (KLR)**, the court rightly held as follows: - ***“This is an Environment and Land Court whose mandate is established under Section 13 of the Land and Environment Court. Environment. The Applicants have sought stay of proceedings of a Succession matter including execution of a confirmation of a grant before this court being an Environment and Land Court. There are laid down procedures under The Succession Act Cap 160 on how to challenge a Succession Cause if you are dissatisfied or not included as a beneficiary… This court does not have the requisite jurisdiction to hear and determine this application, firstly if the Applicant was aggrieved or wanted to stay the proceedings then they should have filed the application in the High Court. On jurisdiction, each court must stick to its lane and not encroach on the other’s space.”*** 1. Under prayer number seven (7) of the instant application, the Applicant is indicated to be the protestor in Makueni MCSC No. E152 of 2023. The outcome of the protest is unknown and in any event, should he be dissatisfied with the eventual ruling, then the proper recourse would not be to this court. 2. In essence, and pursuant to the provisions of Section 13 (2) of the Environment and Land Court Act, this court is divested of the jurisdiction to determine the merits and demerits of succession proceedings before a probate court. An order for stay of proceedings therefore cannot be issued. 3. Ultimately, the Applicant has demonstrated merit in the application for issuance of temporary injunctive orders only. The application is hereby allowed in terms of prayers **(3) and (4)**. It is so ordered **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 14TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Ms. Kinuthia for Plaintiff/Applicant. Defendant in person. Court assistants – Kilonzo and Musyoki