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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 2827 (KLR)

Mwirigi & 33 others v Principal Secretary, Ministry of Lands, Public Works, Housing And Urban Development and Physical Planning & 7 others; County Government of Murang'a (Interested Party) (Environment and Land Petition E007 of 2025) [2026] KEELC 2827 (KLR)

Environment and Land Court
12 May 2026
1,015 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court protected 34 families from eviction from plots they have held since 1996, because the county produced no evidence the land is public.

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 Murang'a (M.N. Gicheru J) on a notice of motion dated 16-10-2025 brought by 34 Petitioners under Article 22(2)(b) of the Constitution and the Mutunga Rules. The Petitioners, allottees of 45 plots at Makuyu Market and Makuyu Township allocated by the defunct Makuyu Urban Council and occupied since 1996, sought conservatory orders of injunction pending the hearing of their petition, to restrain the Respondents from evicting them, carrying out a resurvey of the plots, or creating new mutations and registering new titles. The application was supported by an affidavit of the 1st Petitioner and opposed by the 1st to 7th Respondents through grounds of opposition asserting that the allocations were tainted with fraud and illegality, that the land was unprocedurally allocated public land earmarked for affordable housing, and that the Petitioners would suffer no irreparable harm. The court framed four issues: whether the suit land is public land; whether a prima facie case with probability of success was established; whether the petition would be rendered nugatory; and public interest. Holding that the Respondents had filed no affidavit or response to the petition and thus produced no evidence that the plots are public land, and that the letters of allotment, leases and some 30 years of occupation established a prima facie case, the court found the petition would be rendered nugatory if the land were alienated without a hearing. The motion was allowed in terms of prayers 2, 3 and 4, with costs in the cause.

Key legal issues

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01

Whether the suit land is public land

Holding

The court found there was no evidence to prove the suit plots are public land; prima facie the land is private land allocated to the Petitioners.

Reasoning

The Respondents alleged the allocation was tainted with illegality and fraud and that the plots were public land. However, they filed no affidavit or response to the petition, so no tangible evidence supported the allegation. In the absence of such evidence, the court could not find the land to be public land at the interlocutory stage; the allotment letters and long occupation pointed to private ownership.

p. 5
02

Whether the Petitioners made out a prima facie case with a probability of success

Holding

The court found that the Petitioners had made out a prima facie case based on their letters of allotment, certificates of lease and occupation of the land since about 1996.

Reasoning

The Petitioners produced letters of allotment and, in some cases, certificates of lease, and showed continuous occupation of the plots since 1996 with payment of annual rates. On these documents and this long possession, the court was satisfied, at a preliminary stage, that the Petitioners had demonstrated a prima facie case with a probability of success warranting conservatory relief.

p. 5
03

Whether there is a real danger of the Petition being rendered nugatory

Holding

The court found the petition would be rendered nugatory if the land occupied for about 30 years were alienated without the Petitioners being heard.

Reasoning

The threatened eviction, resurvey, creation of new mutations and registration of new titles would change the position on the ground before the petition could be heard. Loss of the land occupied for about three decades without being heard on the alienation would render the petition nugatory, supporting the grant of interim conservatory protection.

p. 5

Legal principles established

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  • Where a respondent alleges that allocated land is public land but files no affidavit or response to the petition, tangible evidence in reply is necessary for the court to determine that the land is public land.
  • Letters of allotment, certificates of lease and long occupation can establish a prima facie case with a probability of success at the interlocutory stage.
  • Alienation of land long occupied without first hearing the occupants renders a petition nugatory and justifies conservatory orders.

Court orders

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  1. 1.A conservatory order of injunction restraining the Respondents, their agents, servants and employees from evicting the Petitioners from the suit plots and from interfering with the Petitioners' quiet and peaceful enjoyment of the plots, pending the hearing and determination of the petition (prayer 2).
  2. 2.A conservatory order of injunction restraining the Respondents from carrying out a resurvey exercise on the 45 suit plots or otherwise interfering with the Petitioners' enjoyment of the plots, pending the hearing and determination of the petition (prayer 3).
  3. 3.A conservatory order of injunction restraining the 4th Respondent from creating new mutations and registering new titles over the 45 suit plots, pending the hearing and determination of the petition (prayer 4).
  4. 4.Costs in the cause.
Jurisdiction invoked
Articles 22(2)(b) of the Constitution and rules 3, 4, 5, 13, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Mwirigi & 33 others v Principal Secretary, Ministry of Lands, Public Works, Housing And Urban Development and Physical Planning & 7 others; County Government of Murang'a (Interested Party) (Environment and Land Petition E007 of 2025) [2026] KEELC 2827 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2827/eng@2026-05-12

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