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ELCDismissedELC Petition No. E005 of 2025

Munyoki & 2 others v Nduulu & 8 others (Land Case Petition E005 of 2025) [2026] KEELC 4343 (KLR)

Environment and Land Court
14 July 2026
2,731 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Makueni refused to stop occupation of disputed Ziwani Trading Centre land, finding the applicants had no strong enough case to win.

What this practically means

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Executive summary

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The Petitioners, officials of Ziwani Trading Centre representing over 300 members, moved the Court by Notice of Motion dated 3rd October, 2025 under Rules 5, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. They sought a temporary injunction restraining the 1st – 5th Respondents from entering, occupying, constructing on or dealing with land allocated to Ziwani Trading Centre, an order directing the OCS Makindu Police Station to ensure compliance, and consolidation of the petition with Makueni ELC Petition No. 14 of 2019. They contended the trading centre occupies approximately 81 acres set aside for market development under the Kiboko Settlement Scheme; that adjudication officers colluded with the 1st – 5th Respondents to irregularly acquire parcels; that the Respondents were deemed unverified beneficiaries after a 2016-2018 verification exercise; and that their 2024 freehold titles were irregularly issued. The 2nd Respondent, opposing on behalf of the 1st, 3rd, 4th and 5th Respondents, argued the Applicants hold no proprietary documents, are not in occupation, and that the Respondents hold title deeds and are in actual possession; that the earlier petition is pending judgment; and that the consolidation application is inordinately delayed. The court framed two issues: entitlement to conservatory/injunctive orders and consolidation. Applying Gatirau Peter Munya, Sakwa and Mrao, it found no conclusive proof of violation of the Applicants' rights and no prima facie case, noting the Respondents' possession and unimpeached titles. On consolidation, applying Rule 17 and Joseph Mzungu Nyoka, it found the application made at the tail end of a substantially progressed petition with unexplained delay, which would entail de novo proceedings. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicants have demonstrated the threshold for issuance of conservatory/injunctive orders pending the hearing and determination of the Petition
  2. 2.Whether an order of consolidation of the present suit with ELC Petition No. 14 of 2019 should be granted

Key legal issues

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01

Whether conservatory/injunctive orders should issue pending the petition

Holding

The Applicants failed to establish a prima facie case and irreparable injury; the 1st – 5th Respondents are in actual possession with unimpeached titles

Reasoning

The Applicants relied on a verification report and allegations of collusion in land adjudication, but produced no conclusive proof that their property rights were violated or their occupation threatened. The Respondents held title deeds and were in actual possession, having extensively developed the land. The court held it is not in the interests of justice to issue conservatory orders against lawful occupation based on unestablished allegations.

p. 9
02

Whether the petition should be consolidated with Makueni ELC Petition No. 14 of 2019

Holding

Consolidation refused; the application was made inordinately late and consolidation would entail de novo proceedings

Reasoning

Rule 17 of the Mutunga Rules permits consolidation but it is discretionary. The Applicants are not substantive parties in the earlier petition, which has significantly progressed with only submissions pending, seven years after filing. The Applicants did not refute the contention of inordinate delay. The overriding objective of expeditious and proportionate resolution weighed against consolidation.

p. 11

Legal principles established

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  • Conservatory orders should be granted on the inherent merit of a case, bearing in mind the public interest, constitutional values and proportionate magnitudes
  • A prima facie case is one in which on the material presented a tribunal properly directing itself will conclude there exists a right apparently infringed so as to call for an explanation or rebuttal
  • Consolidation of constitutional petitions is discretionary and inappropriate at the tail end of a matter where it would necessitate de novo proceedings absent reasonable explanation for delay

Court orders

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  1. 1.The Notice of Motion dated 3rd October, 2025 is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23 and 70 of the Constitution; Rules 5, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Relief refused

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Temporary injunction restraining the 1st – 5th Respondents from entering, occupying, constructing on or dealing with the land allocated to Ziwani Trading Centre

Applicants failed to demonstrate a prima facie case; it is the Respondents who are in actual possession and their titles have not been impeached

p. 9

Order directing the OCS Makindu Police Station to ensure compliance with the orders

It was dependent on the injunction which was refused

Consolidation of this petition with Makueni ELC Petition No. 14 of 2019

Made at the tail end of a substantially progressed petition with unexplained inordinate delay; consolidation would entail de novo proceedings

p. 11

Costs

The application is dismissed with costs (costs to the 1st – 5th Respondents).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is therefore the finding of this court that the Applicants have not demonstrated a prima facie case for the issuance of conservatory orders as sought.
p. 9Failure to establish prima facie case
In the end, the application herein is unmerited. It is dismissed with costs. It is so ordered.
p. 11Final orders - dismissal of the application
an order for consolidation presumes that the matters that are being consolidated are matters that are still pending and that there are common questions or issues which are yet to be determined.
p. 10Limits of consolidation
it is not in the interest of justice that conservatory orders should be issued against lawful occupation of land on the basis of allegations that are yet to be established.
p. 9Conservatory orders and possession

Issues in the judgment

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minor

Internal date inconsistency: affidavits and submissions are dated 2025-2026 (e.g. 5th February 2026) but the ruling is stated to have been delivered on 14th July 2026, while the petition number is E005 of 2025 and the earlier ruling referenced was delivered 30th May, 2025

minor

The Applicants aver the 7th Respondent declared Ziwani Trading Centre a special planning area pursuant to Section 52 of the Physical and Land Use Planning Act, 2019, yet also aver a verification exercise commenced in 2016 with a letter dated 3/10/2023, and Exhibit relies on a verification report dated October 2018 - chronology is internally muddled

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, "Munyoki & 2 others v Nduulu & 8 others (Land Case Petition E005 of 2025) [2026] KEELC 4343 (KLR)", Case Analysis (2026). ELC Petition No. E005 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4343/eng@2026-07-14

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