Matiku (Suing as the Legal Representative and Administrator of the Estate of Alphonce M Kiawa (Deceased) v Nzue (Environment and Land Appeal E019 of 2025) [2026] KEELC 4935 (KLR)
The bottom line
#Kenya's Environment and Land Court blocked any sale or transfer of disputed Makueni land until an appeal over its ownership is heard and decided.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant has demonstrated the threshold for issuance of the temporary injunctive orders as sought
Key legal issues
#Whether temporary injunctive relief and an inhibition should issue pending appeal under Order 42 Rule 6(6)
Yes - the Applicant demonstrated that the appeal was arguable, that she had been in exclusive possession since 1992, and that alienation of the suit property would cause irreparable loss not compensable in damages and render the appeal nugatory.
The court applied Order 42 Rule 6(6) and the Venture Capital principles: the appeal must not be frivolous, the injunction must not inflict greater hardship, and refusal must not render the appeal nugatory, guided by Giella vs Cassman Brown. The court found the memorandum of appeal raised a prima facie question on the thumbprinted sale agreement and the Applicant's long, unrefuted occupation, and that loss of the suit property through alienation could not be undone by damages.
Entitlement to an order of inhibition under the Land Registration Act
An inhibition under Section 68(1) of the Land Registration Act, 2012 was warranted to preserve the suit property until the appeal is concluded.
The court recited Section 68(1) of the Land Registration Act, 2012, which empowers the court to inhibit registration of any dealing with land for a particular time or until a further order, and found the application was made to preserve the suit property pending appeal, satisfying the statutory basis for the inhibition.
Legal principles established
#- An appellate court's objective in determining an interlocutory application for injunction is to preserve the subject matter of the appeal to ensure its just and effective determination
Court orders
#- 1.A temporary injunction issued restraining the Respondent, his servants, agents, employees or persons acting on his behalf from selling, transferring, charging, leasing, fencing, cultivating, constructing on, evicting from, wasting, interfering with or otherwise dealing with the portion of land measuring approximately 140 metres by 443 metres by 120 metres by 347 metres forming part of Land Parcel No. MAKINDU/KALII/336, pending hearing and determination of the appeal
- 2.The Land Registrar, Makueni County directed to register a restriction and/or inhibition against Land Parcel No. MAKINDU/KALII/336 preserving the said portion of land pending the hearing and determination of the appeal
- 3.Costs to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court (Makueni)
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules - appellate jurisdiction of the High Court/ELC to grant a temporary injunction pending appeal from a subordinate court
Relief refused
#Costs of the application to the Applicant
Costs were made to abide the outcome of the appeal rather than awarded outright
Costs
Costs shall abide the outcome of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Ultimately, the Applicant has demonstrated merit in the present application. The same is allowed in terms of prayers 3 and 4. Costs shall abide the outcome of the appeal.
The objective of an appellate court when determining an interlocutory application for injunction is to preserve the subject matter of the appeal in order to ensure the just and effective determination of a pending appeal.
in the event the suit property is alienated to the Respondent and further disposed of or transferred, the Applicant will suffer irreparable loss which cannot adequately be compensated in damages.
'nugatory' has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling.
Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented.
Issues in the judgment
#Supporting affidavit described as 'sworn by Jane Wanza Matiku on even date' but the replying affidavit is dated 14th January, 2026 while the grounds state the respondent refuted an alleged sale 'in 1993' while the application refers to a purchase by 'the deceased from 1992' - internal date inconsistencies
Paragraph 12 states 'the Respondent has already commenced a lawful execution of the decree in the lower court by depositing the decretal amount of Kshs.40,000/= in court' though elsewhere it is the Applicant who was given leave to deposit the decretal sum
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matiku (Suing as the Legal Representative and Administrator of the Estate of Alphonce M Kiawa (Deceased) v Nzue (Environment and Land Appeal E019 of 2025) [2026] KEELC 4935 (KLR)", Case Analysis (2026). ELC Appeal No. E019 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4935/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.