REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC PETITION NO. E004 OF 2026
IN THE MATTER OF ARTICLES 10,22,23,27,40,47,48,50,60,64,159 AND 165 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015
AND
IN THE MATTER OF THE LAND ADJUDICATION ACT, CAP 284 LAWS OF KENYA
BETWEEN
JOHN KYULE KIOKO (Suing as the Administrator of the Estate of the late Kioo Ndulani pursuant to the Grant of Letters of Administration and Certificate of confirmation of Grant issued in Makueni CM Succession Cause No. E102 OF 2025)............................………..................PETITIONERS
-VERSUS-
THE CABINET SECRETARY, MINSITRY OF
LANDS..................................................................................1 ST RESPONDENT
NATIONAL ENVIRONMENT MANAGEMENT
THE DEPUTY COUNTY COMMISSIONER, MUKAA SUBCOUNTY...........……………………………………...2 ND RESPONDENT
THE ADJUDICATION AND SETTLEMENT OFFICER,
KILOME ……………………….........................................3 RD RESPONDENT
THE CHIEF LAND REGISTRAR....……………………4 TH RESPONDENT
DUNCAN KIOKO KATIO.............................. …………..5 TH RESPONDENT
JAMES KATIO MATU.................. ……………………...6 TH RESPONDENT
MATU MBAE KATIO....................................................... 7 TH RESPONDENT
RULING
1. This is a ruling in respect of a notice of motion dated 16 th July, 2026 in which the Petitioner/Applicant seeks the following orders:
1) This application be certified urgent and heard exparte in the first instance.
2) Pending hearing of this application, a conservatory order do issue restraining the Respondents, their servants, agents or anyone acting under them from entering, occupying, excavating, cutting trees, constructing upon, selling, transferring, subdividing or in any manner interfering with land parcel No. Makueni/Kilome/758.
3) Pending hearing and determination of the petition, a temporary injunction be issued restraining the Respondents from interfering with the suit land.
4) Pending determination of the petition implementation of the decision of Appeal to the Minister No. 71 of 2011 affecting parcel No. Makueni/Kilome/758 be stayed.
5) The Officer Commanding Station (OCS) having jurisdiction over the suit property shall ensure compliance with the court’s orders.
6) Costs of this application be provided for.
2. The Respondents who were duly served neither entered appearance nor filed grounds of opposition or replying affidavit.
3. The Applicant who is the administrator of the estate of Kioko Ndulani (Deceased) states that during land adjudication, the deceased was given parcel No. 758 while the deceased’s brother Matu Ndulani was given parcel 756. The two occupied their respective portions peacefully for many years. In 2011 an appeal was filed to the Minister who rendered his decision on a date which the Applicant does not state in the supporting affidavit but from the documents filed in this petition, the decision was rendered on 1 st July, 2025.
4. The Applicant contends that he was out of the county when the decision was rendered and that he only became aware of the decision when the 6 th and 7 th Respondents invaded the land and cut down mature trees. He states that the Minister’s decision violated Articles 27, 40, 47 and 50 of the Constitution. He states that he filed this application immediately upon learning of the proceedings culminating in the Minister’s decision and after obtaining grant of letters of administration in respect of the estate of the deceased. He states that the trespass is continuing and that if the injunction sought is not granted, the deceased’s estate shall suffer irreparable loss.
5. I have carefully considered the Applicant’s application. When this matter was placed before me, on 17 th July, 2026, I observed that there were similar applications for injunction which were pending in Makueni ELC No. E002 of 2026. On 16 th July, 2026 I delivered a ruling in Makueni ELC No.E002 of 2026 dismissing an application for injunction which had been filed by the Applicant in this petition. The Applicant then on the same date filed this petition and the current application to which I gave directions on 17 th July, 2026. The Applicant prepared a notice of withdrawal dated 17 th July, 2026 intending to withdraw Makueni ELC E002 of 2026 but it bore the heading of this petition and was filed in this petition. The Applicant’s advocate wrote a letter to the Deputy Registrar of the court dated 20 th July 2026 indicating that the withdrawal notice was erroneously filed in this petition.
6. As at the time of writing this ruling on 18 th August, 2026 I checked in the CTS to ascertain whether there was a notice of withdrawal of ELC No. E002 of 2026 which had been filed in that file. There was none filed. This notwithstanding, I have to determine whether the Applicant has met the threshold for grant of injunction or conservatory order.
7. Conservatory orders are similar to injunctions but are mainly given in constitutional petitions. In the instant case, there is no contention that the 6 th and 7 th Respondents have moved into the suit property pursuant to the decision of the Cabinet Secretary which was rendered on 1 st July, 2025. The purpose of a conservatory order is to preserve what is threatened or what has not happened. The 6 th and 7 th Respondents have already moved into the portion given to them in the decision of 1 st July, 2025. The propriety or otherwise of the proceedings leading to that decision has not been established. This court has rendered its decision on this matter in Makueni ELC E002 of 2026 which according to the records has not been withdrawn even if the system shows that the case is closed.
8. This constitutional petition was filed after the court had declined to grant injunctive orders in Makueni ELC No. E002 of 2026. The filing of the current application is clearly an abuse of the court process. The decision of the Cabinet Secretary may have been implemented that is why the 6 th and 7 th Respondents moved into the suit property. The court cannot grant stay where the act has already happened. The Applicant is asking this court for police assistance to go and evict the 6 th and 7 th Respondents who are already in possession, otherwise there is no other reason why the Applicant would ask for police assistance if the 6 th and 7 th Respondents were not on the suit property. I do not find any merit in this application which is dismissed with no order as to costs as the same was not opposed.
It is so ordered.
................................................
HON. E. O. OBAGA, FCIArb
JUDGE
RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 17 TH DAY OF AUGUST, 2026.
IN THE PRESENCE OF:
Mr. Ndichu for Applicant
Court assistants – Kilonzo & Musyoki
ELC PETITION NO. E004 OF 2026 4 | Page
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC PETITION NO. E004 OF 2026
IN THE MATTER OF ARTICLES 10,22,23,27,40,47,48,50,60,64,159 AND 165 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015
AND
IN THE MATTER OF THE LAND ADJUDICATION ACT, CAP 284 LAWS OF KENYA
BETWEEN
JOHN KYULE KIOKO (Suing as the Administrator of the Estate of the late Kioo Ndulani pursuant to the Grant of Letters of Administration and Certificate of confirmation of Grant issued in Makueni CM Succession Cause No. E102 OF 2025)............................………..................PETITIONERS
-VERSUS-
THE CABINET SECRETARY, MINSITRY OF
LANDS..................................................................................1 ST RESPONDENT
NATIONAL ENVIRONMENT MANAGEMENT
THE DEPUTY COUNTY COMMISSIONER, MUKAA SUBCOUNTY...........……………………………………...2 ND RESPONDENT
THE ADJUDICATION AND SETTLEMENT OFFICER,
KILOME ……………………….........................................3 RD RESPONDENT
THE CHIEF LAND REGISTRAR....……………………4 TH RESPONDENT
DUNCAN KIOKO KATIO.............................. …………..5 TH RESPONDENT
JAMES KATIO MATU.................. ……………………...6 TH RESPONDENT
MATU MBAE KATIO....................................................... 7 TH RESPONDENT
RULING
1. This is a ruling in respect of a notice of motion dated 16 th July, 2026 in which the Petitioner/Applicant seeks the following orders:
1) This application be certified urgent and heard exparte in the first instance.
2) Pending hearing of this application, a conservatory order do issue restraining the Respondents, their servants, agents or anyone acting under them from entering, occupying, excavating, cutting trees, constructing upon, selling, transferring, subdividing or in any manner interfering with land parcel No. Makueni/Kilome/758.
3) Pending hearing and determination of the petition, a temporary injunction be issued restraining the Respondents from interfering with the suit land.
4) Pending determination of the petition implementation of the decision of Appeal to the Minister No. 71 of 2011 affecting parcel No. Makueni/Kilome/758 be stayed.
5) The Officer Commanding Station (OCS) having jurisdiction over the suit property shall ensure compliance with the court’s orders.
6) Costs of this application be provided for.
2. The Respondents who were duly served neither entered appearance nor filed grounds of opposition or replying affidavit.
3. The Applicant who is the administrator of the estate of Kioko Ndulani (Deceased) states that during land adjudication, the deceased was given parcel No. 758 while the deceased’s brother Matu Ndulani was given parcel 756. The two occupied their respective portions peacefully for many years. In 2011 an appeal was filed to the Minister who rendered his decision on a date which the Applicant does not state in the supporting affidavit but from the documents filed in this petition, the decision was rendered on 1 st July, 2025.
4. The Applicant contends that he was out of the county when the decision was rendered and that he only became aware of the decision when the 6 th and 7 th Respondents invaded the land and cut down mature trees. He states that the Minister’s decision violated Articles 27, 40, 47 and 50 of the Constitution. He states that he filed this application immediately upon learning of the proceedings culminating in the Minister’s decision and after obtaining grant of letters of administration in respect of the estate of the deceased. He states that the trespass is continuing and that if the injunction sought is not granted, the deceased’s estate shall suffer irreparable loss.
5. I have carefully considered the Applicant’s application. When this matter was placed before me, on 17 th July, 2026, I observed that there were similar applications for injunction which were pending in Makueni ELC No. E002 of 2026. On 16 th July, 2026 I delivered a ruling in Makueni ELC No.E002 of 2026 dismissing an application for injunction which had been filed by the Applicant in this petition. The Applicant then on the same date filed this petition and the current application to which I gave directions on 17 th July, 2026. The Applicant prepared a notice of withdrawal dated 17 th July, 2026 intending to withdraw Makueni ELC E002 of 2026 but it bore the heading of this petition and was filed in this petition. The Applicant’s advocate wrote a letter to the Deputy Registrar of the court dated 20 th July 2026 indicating that the withdrawal notice was erroneously filed in this petition.
6. As at the time of writing this ruling on 18 th August, 2026 I checked in the CTS to ascertain whether there was a notice of withdrawal of ELC No. E002 of 2026 which had been filed in that file. There was none filed. This notwithstanding, I have to determine whether the Applicant has met the threshold for grant of injunction or conservatory order.
7. Conservatory orders are similar to injunctions but are mainly given in constitutional petitions. In the instant case, there is no contention that the 6 th and 7 th Respondents have moved into the suit property pursuant to the decision of the Cabinet Secretary which was rendered on 1 st July, 2025. The purpose of a conservatory order is to preserve what is threatened or what has not happened. The 6 th and 7 th Respondents have already moved into the portion given to them in the decision of 1 st July, 2025. The propriety or otherwise of the proceedings leading to that decision has not been established. This court has rendered its decision on this matter in Makueni ELC E002 of 2026 which according to the records has not been withdrawn even if the system shows that the case is closed.
8. This constitutional petition was filed after the court had declined to grant injunctive orders in Makueni ELC No. E002 of 2026. The filing of the current application is clearly an abuse of the court process. The decision of the Cabinet Secretary may have been implemented that is why the 6 th and 7 th Respondents moved into the suit property. The court cannot grant stay where the act has already happened. The Applicant is asking this court for police assistance to go and evict the 6 th and 7 th Respondents who are already in possession, otherwise there is no other reason why the Applicant would ask for police assistance if the 6 th and 7 th Respondents were not on the suit property. I do not find any merit in this application which is dismissed with no order as to costs as the same was not opposed.
It is so ordered.
................................................
HON. E. O. OBAGA, FCIArb
JUDGE
RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 17 TH DAY OF AUGUST, 2026.
IN THE PRESENCE OF:
Mr. Ndichu for Applicant
Court assistants – Kilonzo & Musyoki
ELC PETITION NO. E004 OF 2026 4 | Page