Kioko

THE CHIEF LAND REGISTRAR ............................................... 4TH RESPONDENT DUNCAN KIOKO KATIO ........................................................... 5TH RESPONDENT JAMES KATIO MATU .................................................................. 6TH RESPONDENT MATU MBAE KATIO ................................................................... 7TH RESPONDENT RULING 1. This is a ruling in respect of a notice of motion dated 16th July, 2026 in which the Petitioner/Applicant seeks the following orders: 1. This application be certied urgent and heard exparte in the rst instance. 2. Pending hearing of this application, a conservatory order do issue restraining the Respondents, their servants, agents or anyone acting under them from entering, occupying, excavating, cutting trees, constructing upon, selling, transferring, subdividing or in any manner interfering with land parcel No. Makueni/Kilome/758. 3. Pending hearing and determination of the petition, a temporary injunction be issued restraining the Respondents from interfering with the suit land. 4. Pending determination of the petition implementation of the decision of Appeal to the Minister No. 71 of 2011 aecting parcel No. Makueni/ Kilome/758 be stayed. 5. The Ocer Commanding Station (OCS) having jurisdiction over the suit property shall ensure compliance with the court’s orders. 6. Costs of this application be provided for. 2. The Respondents who were duly served neither entered appearance nor led grounds of opposition or replying adavit. 3. The Applicant who is the administrator of the estate of Kioko Ndulani (Deceased) states that during land adjudication, the deceased was given parcel No. 758 while the deceased’s brother Matu Ndulani was given parcel 756. The two occupied their respective portions peacefully for many years. In 2011 an appeal was led to the Minister who rendered his decision on a date which the Applicant does not state in the supporting adavit but from the documents led in this petition, the decision was rendered on 1st July, 2025. 4. The Applicant contends that he was out of the county when the decision was rendered and that he only became aware of the decision when the 6th and 7th Respondents invaded the land and cut down mature trees. He states that the Minister’s decision violated Articles 27, 40, 47 and 50 of the Constitution. He states that he led this application immediately upon learning of the proceedings culminating in the Minister’s decision and after obtaining grant of letters of administration in respect of the estate of the deceased. He states that the trespass is continuing and that if the injunction sought is not granted, the deceased’s estate shall suer irreparable loss. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5458/eng@2026-08-17 2

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5. I have carefully considered the Applicant’s application. When this matter was placed before me, on 17th July, 2026, I observed that there were similar applications for injunction which were pending in Makueni ELC No. E002 of 2026. On 16th July, 2026 I delivered a ruling in Makueni ELC No.E002 of 2026 dismissing an application for injunction which had been led by the Applicant in this petition. The Applicant then on the same date led this petition and the current application to which I gave directions on 17th July, 2026. The Applicant prepared a notice of withdrawal dated 17th July, 2026 intending to withdraw Makueni ELC E002 of 2026 but it bore the heading of this petition and was led in this petition. The Applicant’s advocate wrote a letter to the Deputy Registrar of the court dated 20th July 2026 indicating that the withdrawal notice was erroneously led in this petition. 6. As at the time of writing this ruling on 18th August, 2026 I checked in the CTS to ascertain whether there was a notice of withdrawal of ELC No. E002 of 2026 which had been led in that le. There was none led. This notwithstanding, I have to determine whether the Applicant has met the threshold for grant of injunction or conservatory order. 7. Conservatory orders are similar to injunctions but are mainly given in constitutional petitions. In the instant case, there is no contention that the 6th and 7th Respondents have moved into the suit property pursuant to the decision of the Cabinet Secretary which was rendered on 1st July, 2025. The purpose of a conservatory order is to preserve what is threatened or what has not happened. The 6th and 7th Respondents have already moved into the portion given to them in the decision of 1st July, 2025. The propriety or otherwise of the proceedings leading to that decision has not been established. This court has rendered its decision on this matter in Makueni ELC E002 of 2026 which according to the records has not been withdrawn even if the system shows that the case is closed. 8. This constitutional petition was led after the court had declined to grant injunctive orders in Makueni ELC No. E002 of 2026. The ling of the current application is clearly an abuse of the court process. The decision of the Cabinet Secretary may have been implemented that is why the 6th and 7th Respondents moved into the suit property. The court cannot grant stay where the act has already happened. The Applicant is asking this court for police assistance to go and evict the 6th and 7th Respondents who are already in possession, otherwise there is no other reason why the Applicant would ask for police assistance if the 6th and 7th Respondents were not on the suit property. I do not nd any merit in this application which is dismissed with no order as to costs as the same was not opposed. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 17TH DAY OF AUGUST, 2026. ................................................ HON. E. O. OBAGA, FCIArb JUDGE In The Presence Of: Mr. Ndichu for Applicant Court assistants – Kilonzo & Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5458/eng@2026-08-17 3

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