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

-BETWEENMWANAISHA ABDALLA ….….1ST MUNYOKI PETITIONER/APPLICANT PAUL KIMEU ……………………..2ND MULWE PETITIONER/APPLICANT JAMES DAUDI KITUSI ………………......…3RD PETITIONER/APPLICANT -VERSUSPETER NTHULI …………………………………1ST NDUULU RESPONDENT STEPHEN NGEI MUSYOKA ...............................................2ND RESPONDENT BEATRICE KALUKI ............................................3RD NZIOKA RESPONDENT PETER NJUGUNA .................................................................4TH RESPONDENT MICHAEL WAMBUA ...........................................................5TH RESPONDENT THE NATIONAL LAND ............................6 TH COMMISSION RESPONDENT THE COUNTY GOVERNMENT OF MAKUENI ...............7TH RESPONDENT THE LAND REGISTRAR MAKUENI .................................8 TH RESPONDENT THE ATTORNEY GENERAL OF KENYA .........................9 TH RESPONDENT RULING 1. The Petitioners/Applicants filed the Notice of Motion dated 3 rd October, 2025 under the provisions of Rules 5,19 and 23 of the Constitution of Kenya ELC PET. NO. E005 OF 2025 2|Page

page 2 of 12

(Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules seeking the following orders: 1) [SPENT] 2) [SPENT] 3) THAT a temporary injunction restraining the 1 st – 5th Respondents, their agents, servants or assigns from entering, occupying, constructing, dealing with or further interfering with the land allocated to Ziwani Trading Centre pending hearing and determination of this petition. 4) THAT the OCS Makindu Police Station to ensure compliance with the orders. 5) THAT this petition be consolidated with Makueni ELC Petition Case Number 14 of 2019. 6) THAT this court grants any other relief that may be deemed appropriate for the preservation of the subject matter of this petition. 7) THAT costs be provided for. 2. The application is premised upon the grounds appearing on its face in addition to the joint supporting affidavit of Mwanaisha Abdalla Munyoki, Paul Kimeu Mulwe and James Daudi Kitusi sworn on even date. The deponents averred that they are the officials of Ziwani Trading Centre representing more than 300 members who operate within the trading centre. It was further averred that the land occupied by the trading centre covers approximately 81 acres and that it was set aside for market development during the alienation of the larger Kiboko Settlement Scheme. 3. The deponents contended that once land adjudication was concluded, it was noted that the land adjudication officers colluded with the 1 st – 5th Respondents ELC PET. NO. E005 OF 2025 3|Page

page 3 of 12

and acquired some parcels of land irregularly to the exclusion of the Petitioners and the defunct Makueni County Council. They averred that the 7 th Respondent in conjunction with the 6th Respondent embarked on an ownership verification exercise in 2016 adding that the 7th Respondent raised the issue with the Director of Land Adjudication and Settlement vide a letter dated 3/10/2023. 4. It was asserted that the 1st – 5th Respondents were deemed as unverified beneficiaries upon conclusion of the verification exercise and the 7 th Respondent declared Ziwani Trading Centre as a special planning area pursuant to Section 52 of the Physical and Land Use Planning Act, 2019. It was contended that the 1st – 5th Respondent have consistently interfered with the peaceful occupation of the land by the Petitioners. 5. The deponents stated that the 1st – 5th Respondents were issued with freehold title deed in 2024 which were clearly illegal since they were in conflict with the previous County Council allocations to the Petitioners. The Applicants insisted that their previous allotment of the land was neither revoked nor was the land converted from public to private land as required by the law. That the 1 st – 5th Respondents have been trespassing into the Petitioners’ land to dig trenches and build structures which acts are in clear violation of the Petitioners’ rights under Article 40 of the Constitution. 6. The 2nd Respondent filed a replying affidavit sworn by himself on 24 th November, 2025. Opposing the application on his behalf and that of the 1 st, 3rd, 4th and 5th Respondents, the deponent contended that the present application is a ploy to delay the conclusion of Makueni ELC Petition No. 14 of 2019. It was further averred that the Applicants have not exhibited any proprietary documents to prove that there is actually in existence land which is known as Ziwani Trading Centre. ELC PET. NO. E005 OF 2025 4|Page

page 4 of 12

7. The deponent added that the office of the 8 th Respondent recognizes the 1st – 5th Respondents as proprietors of the claimed parcels of land having been issued with title deeds thereof. It was further averred that on 31 st October, 2022, this court issued conservatory orders in relation to the suit properties and that the orders are still in force. That the Applicants who are Interested Parties in Makueni ELC Petition No. 14 of 2019 similarly applied for injunctive orders against the Respondents and this court dismissed their application vide a ruling delivered on 30th May, 2025. 8. The deponent averred that the 1st – 5th Respondents are in actual possession of the suit properties which they have extensively developed by building houses and tilling the land whereas the Applicants are not in occupation. 9. Objecting against the order for consolidation of the present suit with ELC Petition No. 14 of 2019, it was averred that the latter suit is pending before this court for judgment and the present application has been inordinately delayed. He urged the court to dismiss the application with costs. 10.The Applicants filed a further joint affidavit sworn by themselves on 5 th February, 2026. They affirmed that indeed the County Government of Makueni had filed a cross-petition in ELC Petition No. 14 of 2019 which confirms their position that the 1st – 5th Respondents’ titles are in contest and hence do not confer absolute and indefeasible proprietorship. 11.The 6th, 7th, 8th and 9th Respondents entered appearance but did not file any replies to the application. 12.Parties filed submissions to dispose of the application. 13.In the Applicants’ submissions dated 11th February 2026, Counsel contended that once permanent structures are erected on land designated for a public market, restoration will become impractical, costly and socially disruptive. It was argued that monetary compensation cannot restore a lost public utility or ELC PET. NO. E005 OF 2025 5|Page

page 5 of 12

undo completed developments. Reliance was place on the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, to buttress the Applicant’s position that they stand to suffer irreparable harm. 14.Submitting on why the two suits ought to be consolidated, Counsel contended that the both petitions concern the same land and that the issues for determination substantially overlap. It was submitted that the threshold for consolidation as set out in the case of Law Society of Kenya v Centre for Human Rights & Democracy & 12 others [2014] eKLR, had been established. 15.The 1st – 5th Respondents filed their submissions dated 6th February, 2026. On their behalf, Counsel submitted that the Applicants had not demonstrated a prima facie case as to why injunctive orders should issue because title deeds are registered in the names of the 1st – 5th Respondents. It was further contended that the 1st – 5th Respondents are in actual possession of the land where they have built structures and tilled the land. It was further submitted that the Applicants had not proved that they would suffer irreparable injury if the orders sought are not issued. 16.Regarding the prayer for consolidation of the two suits, Counsel submitted that allowing the orders sought would be prejudicial to the 1 st – 5th Respondents who are the Petitioners in ELC Petition No. 14 of 2019. It was asserted that the Applicants had been indolent in filing the present petition as all along they had been made Interested Parties in the other suit. Counsel urged that the if the orders sought are granted, it would interfere with the just and expeditious determination of the earlier petition. Counsel urged the court to dismiss the application with costs. Reliance was placed on the cases of Nduati & 2 others v Chemutai & 3 others [2025] KEELC 6735 (KLR) and Kinuthia v Ndiritu [2024] KEHC 5772 (KLR) to buttress the 1st – 5th Respondents’ submissions. ELC PET. NO. E005 OF 2025 6|Page

page 6 of 12

17.Two issues for determination arise in this matter to wit: a) Whether the Applicants have demonstrated the threshold for issuance of conservatory/injunctive orders pending the hearing and determination of the Petition; and b) Whether an order of consolidation of the present suit with ELC Petition No. 14 of 2019 should be granted. 18.The test for granting the conservatory orders was laid down in the decision of the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR. The following excerpt by the learned Judges is especially succinct: “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.” [emphasis added] 19.In Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR Justice G.V. Odunga (as he then was) held as follows: “What then are the circumstances under which the Court grants conservatory orders? It has been held that in considering an application ELC PET. NO. E005 OF 2025 7|Page

page 7 of 12

for conservatory orders, the court is not called upon to make any definite finding either of fact or law as that is the province of the court that will ultimately hear the petition. At this stage the applicant is only required to establish a prima facie case with a likelihood of success. Accordingly in determining this application, the Court is not required-indeed it is forbidden- from making definite and conclusive findings on either fact or law. I will therefore refrain from making any determinations whose effect would be to prejudice the hearing of the main Petition. However, apart from establishing a prima facie case, the applicant must further demonstrate that unless the conservatory order is granted there is real danger which may be prejudicial to him or her. See Centre for Rights, Education and Awareness (CREAW) & 7 others vs. The Hon. Attorney General, Nairobi HC Pet. No 16/2011, Muslims for Human Rights (MUHURI) & 2 others vs. The Attorney General & Judicial Service Commission, Mombasa HC Pet. No. 7 of 2011 and V/D Berg Roses Kenya Limited & Another vs. Attorney General & 2 Others [2012] eKLR.” 20.The Applicants herein must demonstrate that they have a prima facie case against the Respondents and that in the event the conservatory orders sought are disallowed, they will suffer irreparable injury on the alleged constitutional violations alleged to have occurred or that have been threatened. 21.A prima facie case was defined in Mrao Ltd v. First American Bank of Kenya Ltd & 2 Other [2003] eKLR, in the following terms: “a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” ELC PET. NO. E005 OF 2025 8|Page

page 8 of 12

1. The Applicants adduced Exhibit “BKN-5” which is a copy of a title deed to the suit property in the name of the 2 nd Respondent. They also adduced Exhibit “BKN-6” which is photographic evidence depicting possession of the suit property by the 1st – 5th Respondents. The photographs show already built structures and trenches which have been dug or in progress. 2. On their part, the Applicants have relied on a verification report dated October 2018 for plot allocation at Ziwani Market, Kiboko B Settlement Scheme that was conducted by the 6th and 7th Respondents. From the material that has been presented, there is no conclusive proof that the Applicants’ property rights have been violated and or that their occupation of the suit property is under any form of threat by the Respondents. 3. Admittedly, it is the 1st – 5th Respondents who are in actual possession of the land. Their title deeds have not been impeached by any known process of law. They have extensively developed the land in dispute and whereas the validity of their ownership is in question, 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. 4. 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. 5. On the issue of consolidation, Rule 17 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 sets out as follows: ‘The Court may on its own motion or on application by any party consolidate several petitions on such terms as it may deem just.’ 6. An order for consolidation of constitutional petitions is therefore discretionary and an Applicant must therefore demonstrate sufficient cause to the satisfaction ELC PET. NO. E005 OF 2025 9|Page

page 9 of 12

of court. In the case of Joseph Mzungu Nyoka v Vros Produce Limited & 525 others [2015] KECA 902 (KLR), the Court of Appeal discussed the factors to be considered in an application for consolidation of suits in the following terms:“On the issue of consolidation, the learned Judge applied Stumberg & Another v Potgieter (supra), and used his inherent powers under section 3A of the Civil Procedure Act in granting the orders to consolidate the suits. The ratio decidendi of Stumberg & Another vs Potgieter (supra), is that consolidation of suits is appropriate where there are common questions of law or facts cutting across the suits intended to be consolidated, and the common questions are of sufficient importance to justify the suits being disposed of at the same time. This is in line with the overriding objectives of the Civil Procedure Act and the Rules made thereunder as stated in section 1A of the Civil Procedure Act, that is, to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. As noted by the learned Judge consolidation of suits is provided under Order 11 Rule 3(h) of the Civil Procedure Rules 2010 as a case management strategy. This supports the position taken by the learned Judge that the principle enunciated in Stumberg & Another v. Potgieter (supra) is good law. However, 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. Thus, it is desirable that consolidation be made at the earliest opportunity. In a situation where the issue of consolidation arises at the tail end, as it did in this matter, the Judge cannot fold his hands but must use his inherent powers to achieve the overriding objective." ELC PET. NO. E005 OF 2025 10 | P a g e

page 10 of 12

7. In the present instance, the 1st – 5th Respondents contended at paragraph 11 of their replying affidavit that the application for consolidation was being made at the tail end of Makueni ELC Petition No. 14 of 2019. The Respondents faulted the Applicants for inordinately delaying their application when the other matter has substantively progressed towards judgment with only submissions pending. The Applicants did not refute this contention. 8. It is manifestly clear that the Applicants are not substantive parties in Makueni ELC Petition No. 14 of 2019. It is also not in dispute that the matter has significantly progressed and that an order for consolidation would entail de novo proceedings in order to allow all the parties to be heard on the Applicants’ petition. Seven years have passed since the filing of Makueni ELC Petition No. 14 of 2019 and no reasonable explanation has been advanced by the Applicants the delay in filing their application for consolidation. The overriding objective of this court is to facilitate the expeditious and proportionate resolution of cases in accordance with Rule 3 (4) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. 9. In the end, the application herein is unmerited. It is dismissed with costs. It is so ordered. ................................................ HON. E. O. OBAGA, FCIArb JUDGE RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 14TH DAY OF JULY, 2026. IN THE PRESENCE OF: Mr. Kithuku for Applicants Mr. Muendo for Mr. Muthiani for 1st to 5th Respondents. Court assistants – Kilonzo & Musyoki ELC PET. NO. E005 OF 2025 11 | P a g e

page 11 of 12

ELC PET. NO. E005 OF 2025 12 | P a g e

page 12 of 12