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ELCPartially AllowedELC NO. E035 OF 2025· [2026] KEELC 4413 (KLR)

Ngewa v Musili (Sued as the Administrator fo the Estate of Kalondu Musili Kisilu alias Kalondu Musili Kisiu) (Environment and Land Case E035 of 2025) [2026] KEELC 4413 (KLR)

Environment and Land Court
14 July 2026
2,063 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Makueni land buyer who occupied land for decades won a court order stopping interference with it, but cannot use the Environment and Land Court to fight a succession case.

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 Makueni (Obaga, J) on a Notice of Motion dated 26 September 2025 by the Plaintiff, Wilson Mutua Ngewa, against the Defendant, Florence Wanza Musili. The Applicant claimed he purchased the whole of parcel KISAU/SAKAI/273 from Kalondu Musili Kisilu (deceased) in portions between 1984 and 2008 and has possessed it for over forty years, developing it with trees, crops and a sand dam. He complained that the Defendant, armed with a certificate of confirmation of grant in Makueni CM Succession Cause No. E152 of 2023 (in which he was protestor), entered the land, cut trees for firewood and charcoal, pitched a tent and dug a pit latrine, and threatened alienation. The Defendant filed no response, so the Applicant's unchallenged evidence stood. Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found a prima facie case of threat to the Applicant's possessory rights and irreparable harm not compensable in damages, holding that ownership would not be determined at the interlocutory stage. Prayers (3) and (4), seeking temporary injunctions restraining interference with and use of the suit property pending trial, were granted. However, the court declined prayer (7) seeking stay of the succession cause, holding that under Section 13(2) of the Environment and Land Court Act the ELC lacks jurisdiction over probate proceedings, following Karanja v Kamau. No costs order was made.

Key legal issues

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01

Whether the Applicant met the threshold for temporary injunction

Holding

Yes; the Applicant demonstrated a prima facie case of threat to his possessory rights and irreparable harm not compensable in damages; the balance of convenience limb was superfluous

Reasoning

The Applicant produced sale agreements with the deceased proprietor and unchallenged photographic evidence of trees, crops, a sand dam, freshly cut trees, a tent structure and a pit latrine. His possession was not challenged by the Respondent. The court stressed that ownership was not being determined, only that there was prima facie evidence of a genuine threat to his rights, satisfying the first two Giella limbs.

p. 6
02

Whether the ELC can stay the succession cause

Holding

No; the court is divested of jurisdiction over probate proceedings, and stay of proceedings was refused

Reasoning

Relying on Section 13(2) of the Environment and Land Court Act and the decision in Karanja & another v Kamau, the court held that challenges to succession causes, including execution of a confirmation of grant, belong under the Succession Act procedures in the probate court or High Court, not the ELC. The Applicant's protest outcome was unknown and the proper recourse lay elsewhere.

p. 8

Legal principles established

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  • An applicant for an interlocutory injunction must show a prima facie case with probability of success, irreparable injury not compensable in damages, and, if in doubt, the balance of convenience
  • An Environment and Land Court has no jurisdiction to stay proceedings in a succession cause before a probate court; each court must stick to its lane

Court orders

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  1. 1.A temporary injunction restraining the Respondent, whether by herself, her agents and/or servants, from cutting down trees, pitching tents and/or any structure temporary or otherwise, digging holes for pit latrine or any other purpose, or otherwise interfering with and acting on the suit property KISAU/SAKAI/273 in any manner whatsoever pending the hearing and determination of the main suit (prayer 3)
  2. 2.A temporary injunction restraining the Respondent from performing any and all acts amounting to use of the suit property, including but not limited to actively cutting down trees on a daily basis for firewood and charcoal, pending hearing and determination of the main suit (prayer 4)
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act

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, "Ngewa v Musili (Sued as the Administrator fo the Estate of Kalondu Musili Kisilu alias Kalondu Musili Kisiu) (Environment and Land Case E035 of 2025) [2026] KEELC 4413 (KLR)", Case Analysis (2026). ELC NO. E035 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4413/eng@2026-07-14

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