Jacob Muthama Maundu & 2 others v Commissioner, Deputy County Makindu & 3 others; Silvester Kilungya Maweu (Interested Party)

3) THAT the Honourable Court be pleased to issue a temporary order of injunction restraining the Interested party, his servants, agents, employees and/or any other person claiming through him from selling, cutting trees or using the plot number 1012 Kalii Adjudication Section in any way pending hearing and determination of this petition. 4) THAT this Honourable Court be pleased to set aside the decision of the 1st Respondent in the Appeal to the Minister Case No. 205/2000 delivered on 18th of August 2020 over land parcel No. PLOT NO. 1012 KALII ADJUDICATION SECTION and all other consequential orders. 5) THAT the Honourable Court do issue an order of inhibition stopping further dealings, registration and transactions over that parcel of land known as Plot No. 1012 Kalii Adjudication Section. 6) THAT costs of this application be in the cause. 7) Such further and/or other orders be made as the court may deem fit and expedient. 2. The application is premised upon the grounds appearing on its face together with the supporting affidavit of Kilian Malului sworn on 10 th October, 2025 on his behalf and that of his Co-petitioners. He averred that the instant application relates to land Parcel No. 1012 KALII ADJUDICATION SECTION and that the decision which is the subject of the application was delivered by the 1 st Respondent on 18th August, 2023 awarding the suit property to the Interested Party. 3. The deponent contended that from the record, it was evident that the land dispute was determined on 28/9/2020 by then Deputy County Commissioner P.M. Nkunga who pronounced that he had no authority to hear the dispute as it ELC PET. NO. E002 OF 2024 2|Page

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had already been determined by the court. It was further contended that the 1 st Respondent overstepped his mandate by hearing the dispute in spite of the court’s determination in Machakos Case No. L63/1972 in favour of the Applicants. He expressed his view that the 1st Respondent acted ultra vires his jurisdiction in revising the decision of his predecessor when no such provision in law existed. 4. The deponent contended that the Applicants were not accorded a fair hearing as the 1st Respondent acted unlawfully. That land Parcel No. 1012 Kalii Adjudication Section was awarded to both the deponent’s father Malului Meka and Philomena Nyeki by the court to own in common. He urged the court to allow the application as prayed in the interest of justice. 5. The Respondents did not file their respective replies to the application. 6. Opposing the application, the Interested Party filed an affidavit sworn by himself on 18th December, 2025. He averred that the suit property land Parcel No. 1012 Kalii Adjudication Section was lawfully awarded to Maweu Muthiani (his late grandfather) vide Appeal to the Minister Case No. 205 of 2000. That the decision of the Minister was delivered on 15th March, 2022 and not 18th August, 2023 as alleged. It was further contended that pursuant to the said decision, his late grandfather was registered as proprietor of the suit property and therefore the land is not the Interested Party’s name. 7. The Interested Party challenged the power of attorney to the Applicant’s supporting affidavit contending that the same lapsed automatically after the death of Malului Meka Sumbi on 6/8/2024. The Interested party contended that the decision of the 1st Respondent was well guided by giving all the parties concerned a fair hearing and that they fully participated in the proceedings culminating in a correct decision. It was alleged that the Applicants had not ELC PET. NO. E002 OF 2024 3|Page

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shown any exceptional circumstances nor constitutional violations calling for interference with the 1st Respondent’s decision. 8. The Interested Party lamented that he has been wrongly joined in the proceedings as he is neither the registered owner of the suit property nor the legal representative of his late grandfather’s estate. He urged the court to dismiss the application with costs. 9. Parties filed submissions to dispose of the application. 10.In the Applicants’ submissions dated 10th March 2026, Counsel submitted that the doctrine of exhaustion does not arise where constitutional violations have been raised and that in the current suit, the Petitioners have alleged violations to Articles 40 and 47 of the Constitution. Counsel further contended that an oral application for substitution was allowed by this court as letters of grant ad litem were taken out on 4th March, 2025 within one year of the death of Malului Meka on 6th October, 2024. Counsel contended that the instant petition and application had been filed diligently and in good faith upon discovery of the impugned decision by the 1st Respondent. 11.Counsel further contended that the issues in dispute remain live and that no prejudice had been demonstrated that would render a fair determination impossible. 12.Counsel was of the view that the Applicants had established a prima facie case with a high probability of success in light of the unprocedural hearing of the matter by the 1st Respondent and the delay in filing the appeal to the minister. On irreparable harm, Counsel contended that there is a loss of land and ongoing destruction which if not stopped the land will be wasted. 13.In the Interested Party’s submissions dated 9th march 2026, Counsel submitted that a prima facie case had not been disclosed because the dispute was determined through the statutory adjudication process culminating in the final ELC PET. NO. E002 OF 2024 4|Page

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decision by the 1st Respondent. On irreparable injury, Counsel contended that the Applicants have not demonstrated possession and or occupation of the suit property as it is the Interested Party who has maintained possession of the land. On balance of convenience, Counsel submitted that it tilts against granting an order whose effect would be to suspend or unsettle a completed statutory process which has yielded a title deed. 14.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 for setting aside of the impugned decision and an order of inhibition may issue at this stage. 15.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] ELC PET. NO. E002 OF 2024 5|Page

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16.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 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.” 17.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, continue or that have been threatened. ELC PET. NO. E002 OF 2024 6|Page

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18.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.” 19.The Applicants adduced a copy of the impugned decision delivered by the 1st Respondent on 15th March, 2022. It is their contention that the 1st Respondent acted ultra vires as he had no authority to pronounce himself on the dispute in light of an earlier court decision delivered in Machakos Case No. L63/1972 in favour of the Applicants. The Applicants did not adduce proof of possession of the land and or threat of eviction by either the Respondents or the Interested Party. 20.On the other hand, the Interested Party adduced a copy of the title deed to the suit property in the name of Maweu Muthiani and a copy of the official search collectively as Exhibit “SKM3”. The land was registered in the name of Maweu Muthiani pursuant to the successful outcome of the Appeal to the Minister Case no. 205 of 2000 which is the same decision at the centre of the proceedings herein. It is also the Interested Party’s case that being the grandson of Maweu Muthiani, he has been in possession of the suit property and that the Applicants have to legal interests in the land. 21.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. The Applicants have demonstrated neither beneficial interest nor legal interest in the suit property. Admittedly, it the beneficiaries of the registered proprietor, the Interested Party herein, who has possession of the land. ELC PET. NO. E002 OF 2024 7|Page

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22.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. 23.On the question of setting aside of the 1 st Respondent’s decision, the court is of the view that those are final orders which can only be issued after full hearing and determination of the contested matters of fact and law. The validity of the 1st Respondent’s decision in awarding the suit property to Maweu Muthiani is at the heart of this petition. The same decision cannot be set aside at an interlocutory stage with contrasting allegations which have not been established. There is no basis for issuance of order of inhibition. 24.At the interlocutory stage, the Applicants’ evidence has not been tested. In Julius Kuria Nganga v Wambui Kigamba [2017] eKLR, the Court held as follows: “Further, the court will also take into account that at this stage the court is not called upon to determine the very issues with finality but only to find out if the Applicant has established that he deserved the orders sought basing it on the laid down criteria. See the case of Edwin Kamau Muniu vs Barclays Bank of Kenya Ltd Nairobi (Milimani) High Court, Civil Case No.1118 of 2002, where the court held that: “in an interlocutory application, the court is not required to determine the very issues which will be canvassed at the trial with finality. All the court is entitled to at that stage is whether the Applicant is entitled to an injunction sought on the usual criteria”.” 25.In the end, the application herein is unmerited. It is dismissed with costs accordingly. ................................................ HON. E. O. OBAGA, FCIArb ELC PET. NO. E002 OF 2024 8|Page

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JUDGE RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 24TH DAY OF SEPTEMBER, 2026. IN THE PRESENCE OF: Mr. Onyancha for Interested Party. Mr. Kuria for Ms. Mumo for Respondent. Court assistant – Kilonzo & Musyoki ELC PET. NO. E002 OF 2024 9|Page

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