REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC NO. 269 OF 2017
CHARLES KILUI MALONZA............................................... 1ST PLAINTIFF
PETER MALONZA KIEMU.................................................. 2ND PLAINTIFF
-VERSUS-
THOMAS MULWA NDOLO ULA (Sued as the Administrator of the estate of Philip Ndolo Kilui (Deceased)...........................................1ST DEFENDANT
MARTIN MULALA KYENGO (Sued as the Administrator of the Estate of Kanukwa Kyengo Malai (Deceased).....................................2ND DEFENDANT
JAMES KIENDI LILI.......................................................... 3RD DEFENDANT
DAVID MALAI LILI........................................................... 4TH DEFENDANT
ESTHER KANANTHE MWINA (Sued as the Administrator of the estate of Mwina Malai (Deceased)...................................................... 5TH DEFENDANT
FRANCISCA NDANU ILUVE............................................ 6TH DEFENDANT
RULING
1. This is a ruling in respect of an amended notice of motion dated 4th April, 2023 in which the Plaintiffs/Applicants are seeking the following orders:
1) Spent
2) Spent
3) That an order of temporary injunction be issued restraining the 2nd , 3rd , 4th and 5th Defendants whether by themselves or through their servants, agents and/or employees or any other person whomsoever claiming under them or thought them from evicting the Plaintiffs, trespassing, cultivating, subdividing, carrying out any land survey works, obtaining new land numbers, obtaining title deed(s) or in any other manner whatsoever interfering with the Plaintiffs’ and their family’s quiet possession of their portion of the suit parcel of land number 412 Kisekini Adjudication Section or (which now encompasses a new diminished parcel number Makueni/Kisekini/412 and hived of parcels of land numbers Makunei/Kisekini/3895 and Makueni/Kisekini/3896) or from doing any other prejudicial act pending the interparte hearing and determination of this application from doing any other prejudicial Act pending the hearing and determination of the suit herein.
4) That costs of this application be provided for.
2. The Applicants contend that on or about 9th September, 2020, the 2nd Defendant/Respondent trespassed on to the suit property and forcefully cut down trees and excavated the same and threatened to destroy their family houses. The Applicants state that if an injunction is not granted, they will suffer irreparable loss and damage as graves on the land will be interfered with.
3. The 2nd Defendant/Respondent opposed the Applicant’s application based on a replying affidavit sworn on 27th February 2025. He contends that plot No. 412 is intact and that plot Nos. 3895 and 3896 were not hived form plot 412. He further states that the Applicants were evicted from the suit property in 1973 pursuant to an order given in Kilungu court case No. 2 of 1965. He further states that the Applicants want to use the orders in this case to come back to the suit property.
4. The 3rd to 5th Defendants/Respondents opposed the Applicants’ application based on a replying affidavit sworn on 27th October, 2025. The Respondents contend that the Applicants have not been in occupation of the suit property since 1973 when they were evicted. They state that parcel Nos. 3895 and 3896 were hived off from parcel 412 and that the 2nd Respondent has sold portions of the suit property and that he should be stopped from further selling the suit property by the court granting maintenance of the status quo.
5. The parties were directed to file submissions. The Applicants filed submissions dated 24th October, 2025. The 2nd Respondent filed submissions dated 24th October, 2025. The 3rd to 5th Respondents did not file any submissions.
6. I have carefully considered the Applicants’ application as well as the opposition to the same by the Respondents. I have also considered the contents of the replying affidavits filed. The only issue for determination is whether the Applicants have established a prima facie case to warrant issuance of an injunction.
7. From the materials in this case, the Applicants’ family were evicted from the suit property in 1973. They have not been on the land since then. Though the court granted leave to the Applicants to file a further affidavit, none was filed. This therefore means that the averments by the Respondents remain uncontroverted. If the Applicants were evicted in 1973, then there is no prima facie case demonstrated by them to warrant issuance of an injunction.
8. A lot of time has been taken in this case by filing unnecessary applications instead of going for the main hearing. The Applicants have not met the principles set out in the case of Giella –vs- Cassman Brown & Co. Ltd (1973) EA 358. I therefore find that the Applicants’ application is devoid of merit. I proceed to dismiss the same with costs to the Respondents save for the 1st and 6th Respondents who did not file replying affidavits in opposition to the application.
It is so ordered.
............................................
HON. E. O. OBAGA
JUDGE
RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF JANUARY, 2026.
IN THE PRESENCE OF:
Mr. Tamata for 2nd Respondent
Ms. Kinuthia for 3rd , 4th and 5th Defendants
Mr. Kituku for Plaintiffs.
Court assistant – Steve Musyoki
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