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ELCDismissedPetition dated 8 October 2025 (Machakos ELC)· [2026] KEELC 2345 (KLR)

Katheka Kai Farmers Cooperative Society Limited v Matingi - Water Engineer Machakos County & 7 others (Land Case Petition E009 of 2025) [2026] KEELC 2345 (KLR)

Environment and Land Court
28 April 2026
1,300 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A community water society failed to stop Machakos County from taking over its borehole because it could not produce the land title documents proving ownership.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Koross J) on the petitioner's notice of motion dated 8 October 2025, brought under Article 165(1) of the Constitution and Rules 13, 19 and 23 of the Mutunga Rules, seeking conservatory orders restraining the respondents, particularly the 8th respondent (County Government of Machakos), from taking over or interfering with the petitioner's use, occupation and management of the Kwa Kaggia Borehole on Title No. IR 17433/10 pending determination of the petition. The petitioner alleged unlawful attempts to take control of the borehole, a three-day closure denying water to about 10,000 community members, and damage to a water tank. The respondents, through the Chief Officer Benedict Ngumbau, contended that the borehole was gradually handed over through meetings, is now a public utility, and that the petitioner lacks licences, with MAWASCO being the only authorised provider. In a supplementary affidavit, the petitioner maintained that ownership was never relinquished and no compulsory acquisition or compensation occurred. The court confirmed its jurisdiction under Article 23 and Section 13(3) of the ELC Act, and applied the settled principles for conservatory orders from Munya v Kithinji and Board of Management of Uhuru Secondary School. Finding that neither party had furnished a title document for the suit land, so that its existence, registration status and interests were unestablished, the court held the petitioner failed to demonstrate a prima facie case with a likelihood of success. The motion was dismissed with costs in the cause, and a mention date was to be scheduled for pre-trial directions.

Key legal issues

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01

Whether the petitioner satisfied the threshold for conservatory orders

Holding

The motion was not merited; the petitioner failed to establish a prima facie case with a likelihood of success because no title document for the suit land was presented and its registration status remained unknown

Reasoning

The court reiterated the settled principles for conservatory orders from Munya v Kithinji and Board of Management of Uhuru Secondary School, requiring a prima facie case, prejudice and public interest. It noted that despite its orders of 13 October 2025, no copy of the title document for the suit land had been furnished by either party. Since the existence, registration status and interests in the suit land were not evidenced by title, the petitioner failed at the first threshold, rendering consideration of other factors unnecessary.

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02

Jurisdiction of the ELC over the petition

Holding

The petition dated 8 October 2025 is properly before the court, being anchored on Articles 40, 42, 69 and 70 of the Constitution concerning land and a clean, healthy environment, within Section 13(3) of the ELC Act

Reasoning

The court confirmed that Article 23 grants it jurisdiction to redress denials, violations, infringements or threats to rights in the Bill of Rights, including power to issue conservatory orders. As the dispute concerns land and environmental rights delineated in Articles 40, 42, 69 and 70, and falls within Section 13(3) of the ELC Act, the petition was properly before the court.

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Legal principles established

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  • An applicant for conservatory orders must demonstrate a prima facie case with a reasonable prospect of success, a public interest connotation, merit, and a tangible risk of prejudice absent the order; these principles are non-exhaustive
  • Where the existence, registration status and interests in the suit property are not established by title, no prima facie case is made out

Court orders

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  1. 1.The notice of motion dated 8 October 2025 is dismissed
  2. 2.Costs to be in the cause
  3. 3.A mention date shall be scheduled for pre-trial directions
Jurisdiction invoked
Article 23 of the Constitution; Section 13(3) of the Environment and Land Court Act; Article 165(1) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Katheka Kai Farmers Cooperative Society Limited v Matingi - Water Engineer Machakos County & 7 others (Land Case Petition E009 of 2025) [2026] KEELC 2345 (KLR)", Case Analysis (2026). Petition dated 8 October 2025 (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2345/eng@2026-04-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.