Ngumbatu Kimweli Mwatundu (Suing as the Legal Representative of the Estate of the Late Kimweli Mwatundu (Deceased)) v Andrew Mwanzia Mulu

and 976 (Originally No. 7/72)- Map Sheet No. 1 Kawala B measuring approximately 100 acres. She indicates that the property was acquired by her and the deceased in 1945, long before the birth of the Defendant herein. 3. The Plaintiff maintains that the ownership of the suit properties herein was determined in Malindi Magistrate Civil Case No. 7 of 1972 – Kimweli Mwadundu versus George Charo. She maintains that in the said suit, the court determined the deceased herein to be the lawful proprietor of the suit properties. 4. She indicates that there was a subsequent suit in 1976- Land Civil Case 6 of 1997 – Birya Masha versus Kimweli Mwadundu & James Kaluko) which was dismissed on account of being res judicata as the ownership of the suit property had been determined in Malindi Magistrate Civil Case No. 7 of 1972 – Kimweli Mwadundu versus George Charo. 5. She alleges that the Defendant herein, who is the deceased’s brother, together with his children, have trespassed into the said plots by using unknown documents issued by the Ministry of Lands. He cites that the Defendant and the deceased had inherited separate plots and that the Defendant herein seeks to encroach on the deceased’s despite having his ancestral share. 6. Annexed to the Application is a copy of the letters of administration issued to her, a copy of the sketch map sheet for the suit plots, and the deceased’s death certificate and copies of the judgments in the above cited cases. 7. The Application was opposed by the Respondent through his Replying Affidavit dated and sworn on 5th March 2026. The Defendant's Replying Affidavit opposes both the Plaintiff's suit and the Notice of Motion dated 16th February 2026, contending that they are legally untenable, constitute an abuse of the court process, and fail to satisfy the threshold for the grant of interlocutory injunctive relief. The Defendant therefore urges the Court to dismiss or strike out both the suit and the application with costs. 8. The Defendant avers that the suit properties, namely Plots Nos. 970, 971, 972 and 976 situated within KAWALA 'B' Adjudication Section, were subjected to the adjudication process commencing around 2009. He depones that all disputes relating to ownership of land within the Adjudication Section were determined through the dispute resolution mechanisms established under the Land MLDELCLCNO.E021/26/RLG/DF-16.02.26/DR-01/10/26 Page 2 of 12

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Adjudication Act, culminating in appeals to the Minister. According to the Defendant, those processes have since been concluded, rendering the Minister's decision final and depriving this Court of jurisdiction to reopen the dispute. 9. The Defendant further traces the ownership history of the suit properties, asserting that they constitute ancestral land belonging to his grandfather, Mwadundu Mkwata. He explains that Mwadundu Mkwata had two sons, namely Kimweli Mwadundu Mkwata and Mulu Mwadundu Mkwata. While the Plaintiff is the widow of the late Kimweli Mwadundu Mkwata, the Defendant states that he is the son of Mulu Mwadundu Mkwata, thereby entitling both family lineages to the ancestral land. He further avers that upon the death of Mwadundu Mkwata, Kimweli Mwadundu Mkwata, as the eldest son, represented the entire family in litigation concerning the land rather than asserting a personal proprietary interest. 10. The Defendant maintains that following the demise of Kimweli Mwadundu Mkwata, subsequent litigation concerning the same land was undertaken by his brother, Mulu Mwadundu Mkwata, and later by Julius Mwangangi Mulu upon Mulu's death. To demonstrate the continuity of the family's representation in the land disputes, the Defendant annexes proceedings in Land Dispute Case No. 11 of 2004, marked "AMM-1." 11. The Defendant further depones that when KAWALA 'B' was declared an adjudication section, a dispute arose regarding the division of the ancestral land between the families of Kimweli Mwadundu and Mulu Mwadundu. He states that the dispute progressed through the statutory adjudication mechanisms up to the Minister. He annexes the proceedings in Appeal to the Minister, Case No. 70 of 2016, marked "AMM-2," and avers that the appeal had been lodged by the Plaintiff's son, Kaliye Kimweli Mwadundu. According to the Defendant, during those proceedings Kaliye Kimweli Mwadundu acknowledged that the land was ancestral and that the principal beneficiaries were the late Kimweli Mwadundu and Mulu Mwadundu. The Minister consequently directed that Plots Nos. 970, 971, 972 and 976 be consolidated and divided equally between the 2 family houses. 12. The Defendant further states that following delays in implementing the Minister's decision, he instituted Judicial Review proceedings in Malindi ELCL JR No. E005 of 2025, Andrew Mwanzia MLDELCLCNO.E021/26/RLG/DF-16.02.26/DR-01/10/26 Page 3 of 12

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Mulu v Director of Land Administration & Settlement & Another. He avers that the Court granted orders of mandamus compelling the relevant public authorities to implement the Minister's determination in Kilifi Minister's Land Appeal No. 70 of 2016. In support of this assertion, he annexes the Judgment in JR ELCL No. E005 of 2025, marked "AMM3," together with subsequent correspondence evidencing implementation of the Minister's decision, marked "AMM-4." 13. Finally, the Defendant contends that the Plaintiff is bound by the Minister's determination because the appeal was prosecuted by her son on behalf of the entire family. He depones that, having exhausted the dispute resolution mechanisms prescribed under Sections 26 and 29 of the Land Adjudication Act, the Minister's decision became final and binding and is not amenable to further challenge through fresh court proceedings. On that basis, the Defendant reiterates that this Court lacks jurisdiction to entertain the present suit and that the Plaintiff's application fails to satisfy the legal threshold for the grant of interlocutory injunctions. 14. The Plaintiff did not file any further affidavit in response to the Defendant’s Replying Affidavit. 15. Both Plaintiff and Defendant have filed their submissions dated th 16 May 2026 and which I have carefully considered. 16. The Application herein seeks the grant of temporary injunctions. Order 40 Rule 1 of the Civil Procedure Rules grants this court the jurisdiction to grant orders of temporary injunction where an applicant demonstrates that the disputed property is at risk of being wasted, damaged, alienated, wrongly sold in execution of a decree or the defendant threatens or intends to remove or dispose it in circumstances that would create the probability of the plaintiff being obstructed or delayed in execution of a decree that may ultimately be passed in his or her favour. 17. Conditions for grant of temporary injunction are well settled. An applicant for temporary injunction must demonstrate a prima facie case with chances of success; demonstrate that he or she stands to suffer irreparable injury that may not be compensated in damages and where the court is in doubt, it shall decide the application on a balance of convenience (See Giella v. Cassman Brown [1973] EA 358.) 18. In the case of Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR the Court of Appeal held that: MLDELCLCNO.E021/26/RLG/DF-16.02.26/DR-01/10/26 Page 4 of 12

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“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, allay any doubts as to b, by showing that the balance of convenience is in his favour. These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”. 19. I have carefully perused the Respondent’s annexures and in particular the Judgement of this Court in Malindi ELCJR E005/2024. The Respondent herein had moved this Court seeking an order of Mandamus to compel the Director of Land Adjudication and Settlement, Kilifi, and the County Surveyor, Kilifi, to implement the decision in Kilifi Minister’s Land Appeal No. 70 of 2016 – Kaliye Kimweli Mwadundu v Andrew Mwanzia Mulu. 20. The Respondents opposed the application through a Replying Affidavit sworn by John Karanja, a Land Adjudication and Settlement Officer, Kilifi. They outlined the adjudication history of Parcel Nos. 970, 971, 972 and 976 within Kawala 'B' Adjudication Section, explaining that the parcels had undergone demarcation, objections before the Land Committee, appeals before the Arbitration Board, and ultimately an appeal to the Minister. They confirmed that the Minister directed the consolidation of the four parcels and their subsequent subdivision into two equal portions between the families of Kimweli Mwadundu and Mulu Mwadundu. However, they maintained that implementation had stalled because the two families disagreed on the proper interpretation of the Minister's decision. 21. This Court identified the sole issue for determination as whether the Applicant had established a proper basis for the grant of an order of mandamus. In resolving that issue, the Court reiterated that the remedy of mandamus is discretionary and is intended to compel the performance of a public duty where a public authority has failed or refused to discharge a statutory obligation. The Court relied on the decisions in Commission on Administrative Justice v Kenya Vision 2030 Delivery Board & 2 others [2019] eKLR, Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others, and MLDELCLCNO.E021/26/RLG/DF-16.02.26/DR-01/10/26 Page 5 of 12

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R v Dudsheath, ex parte Meredith [1950] 2 All ER 741 in setting out the principles governing the issuance of the remedy. 22. Upon evaluating the evidence, the Court found that it was common ground that the Minister's judgment existed, that the Respondents had been served with it, and that they were under a statutory duty to implement it. The Court observed that the Respondents did not dispute the validity of the Minister's decision, but merely attributed their inaction to differing interpretations advanced by the two families. 23. The Court proceeded to examine the operative portion of the Minister's decision, which directed the Surveyor to consolidate Parcel Nos. 970, 971, 972 and 976 before subdividing the consolidated land amongst the family members of the late Kimweli Mwadundu and Mulu Mwadundu in such a manner that the two families of the late Mwadundu Mkwata would receive equal shares. The Court held that the wording of the order was plain, unambiguous and incapable of supporting the conflicting interpretations advanced by the parties. 24. The Court interpreted the Minister's decision to mean that the four parcels were first to be consolidated into a single parcel and thereafter divided into two equal portions, one portion being allocated to the family of the late Kimweli Mwadundu and the other to the family of the late Mulu Mwadundu. Having reached that interpretation, the Court rejected the Respondents' assertion that uncertainty over the meaning of the Minister's decision justified their failure to implement it. 25. Accordingly, the Court concluded that the Applicant had satisfied the legal threshold for the grant of an order of mandamus. It issued an order compelling the Director of Land Adjudication and Settlement, Kilifi, and the County Surveyor, Kilifi, to forthwith comply with and implement the decision in Kilifi Minister's Land Appeal No. 70 of 2016, Kaliye Kimweli Mwadundu v Andrew Mwanzia Mulu. In view of the nature of the dispute, the Court directed that each party should bear its own costs. 26. I have carefully considered the said decision by the Land Adjudication Officer and the subsequent appeal and note as follows: 27. The dispute had been the subject of Land Disputes Tribunal Case No. 11 of 2004, initially instituted by Charo Karani Matho against Mulu Mwadundu, whose estate was subsequently represented by Julius Mwanganji Mulu following Mulu's death. In that matter, the MLDELCLCNO.E021/26/RLG/DF-16.02.26/DR-01/10/26 Page 6 of 12

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claimant maintained that the disputed land belonged to his father and complained that the Defendant had unlawfully entered and cultivated the property despite an earlier determination in favour of his family. The Tribunal heard evidence from both parties concerning the ownership and occupation of the ancestral land before rendering its decision. 28. Following the commencement of adjudication within KAWALA 'B' Adjudication Section, numerous objections concerning the four parcels were lodged before the adjudication authorities. According to the subsequent judicial review proceedings, disputes relating to Plots Nos. 970, 971, 972 and 976 were heard by the Land Committee, after which further appeals were preferred through the statutory adjudication process before ultimately reaching the Minister under Section 29 of the Land Adjudication Act. 29. The central grievance advanced by the family of Kimweli Mwadundu was that the adjudication process failed to fairly distribute the ancestral land amongst all the beneficiaries. They maintained that some family members had been registered as proprietors while others had been excluded altogether, notwithstanding that the land had historically been utilized by both family houses. Conversely, the family of Mulu Mwadundu maintained that the existing occupation broadly reflected the historical utilization of the various portions, although they equally expressed willingness for an equitable family settlement upon consultation. 30. The disagreement ultimately culminated in Appeal to the Minister No. 70 of 2016, where the parties sought a final determination on the proper distribution of the ancestral land and the rights of the two branches of the family. 31. Having that in mind, it is now meet to proceed to the appeal. 32. It was heard on 12th September 2017 under Section 29 of the Land Adjudication Act. The appeal concerned Plots Nos. 970, 971, 972 and 976 within KAWALA 'B' Adjudication Section. The Appellant was Kaliye Kimweli Mwadundu, while the Respondent was Andrew Mwanzia Mulu. Both parties testified on oath, and no witnesses were called. 33. The Appellant stated that the four plots originally comprised one ancestral parcel inherited from their grandfather, Mwadundu Mkwata, before devolving to his sons, Kimweli Mwadundu and Mulu Mwadundu. MLDELCLCNO.E021/26/RLG/DF-16.02.26/DR-01/10/26 Page 7 of 12

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He asserted that although the family consisted of eight male beneficiaries, the adjudication process resulted in only some members being registered while others were excluded. He therefore urged the Minister to order a redistribution of the land so that each of the eight brothers would receive a share capable of subsequent subdivision amongst their respective families. 34. The Appellant maintained that the disputed land had always remained one parcel before adjudication and that the family had cultivated it collectively without fixed internal boundaries. He identified the registered proprietors of the various plots, estimated the acreage of each parcel, and reiterated that the grandchildren would ultimately inherit through their respective fathers. He further confirmed that the dispute had been brought with the support of the family and that the intention was to achieve an equitable distribution of the ancestral property. 35. The Respondent likewise acknowledged that the four parcels constituted ancestral family land inherited from Mwadundu Mkwata. He explained that, prior to adjudication, his father Mulu Mwadundu occupied Plots Nos. 970 and 976, while Kimweli Mwadundu utilized Plots Nos. 971 and 972. He stated that no conflict existed until the adjudication process commenced in 2011. Although he supported redistribution of the family land, he proposed that the existing occupation should largely be preserved, with Plots Nos. 970 and 976 remaining with his family while Plots Nos. 971 and 972 remained with the Appellant's family. 36. Upon considering the parties' evidence, the Minister found that both parties were close blood relatives and agreed that the land belonged to their common family. The Minister further found that the adjudication process had not resulted in an equitable distribution of the family land, and that certain family members had been omitted during registration. It was also observed that, being ancestral land, every entitled family member ought to benefit unless there existed a justifiable basis for one branch of the family receiving a larger allocation than the other. 37. Consequently, the Minister allowed the appeal and ordered that Plots Nos. 970, 971, 972 and 976 be consolidated into one parcel. The Survey Department was thereafter directed to subdivide the consolidated parcel into two equal portions, one to be allocated to the MLDELCLCNO.E021/26/RLG/DF-16.02.26/DR-01/10/26 Page 8 of 12

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family of the late Kimweli Mwadundu and the other to the family of the late Mulu Mwadundu, thereby ensuring an equal distribution between the two houses descended from Mwadundu Mkwata. This determination became the decision whose implementation was subsequently sought through the Judicial Review proceedings in Malindi ELCL JR No. E005 of 2024, which I have summarized above. 38. The instant application herein has been preferred by the Applicant in her capacity of the administrator to the estate of Kimweli Mwatundu. The orders of injunction sought are in respect to the Plots No. 970,971,972 and 976 of “Kawala B”. These are the same properties which formed part of the dispute in the aforementioned land adjudication matters that resulted in the mandamus orders issued in Malindi ELCL JR No. E005 of 2024. 39. The Applicant herein has not presented anything before this court to controvert the evidence filed by the Respondent, which, as it stands, remains unshaken. She only asserts that she is the registered owner of the suit property. She has not presented to this court any title documents to explain the manner in which she acquired title to the said plots. In my view, the Applicant has not established a prima facie case. 40. I observe that the plots herein were a subject of land adjudication. The procedure in respect to the resolution of land adjudication disputes is provided for under the Land Adjudication Act CAP 284 Laws of Kenya. Of importance are Sections 26 and 29 of the said statute which provide as follows: “6. Objection to adjudication register (1) Any person named in or affected by the adjudication register who considers it to be incorrect or incomplete in any respect may, within sixty days of the date upon which the notice of completion of the adjudication register is published, object to the adjudication officer in writing, saying in what respect he considers the adjudication register to be incorrect or incomplete. (2) The adjudication officer shall consider any objection made to him under subsection (1) of this section, and after such further consultation and inquiries as he thinks fit he shall determine the objection.” MLDELCLCNO.E021/26/RLG/DF-16.02.26/DR-01/10/26 Page 9 of 12

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41. Section 29 in particular provides for the procedure of lodging appeals against the decisions of the adjudication officer as follows; 1. (1)Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Cabinet Secretary by —(a)delivering to the Cabinet Secretary an appeal in writing specifying the grounds of appeal; and(b)sending a copy of the appeal to the Director of Land Adjudication, and the Cabinet Secretary shall determine the appeal and make such order thereon as he thinks just and the order shall be final. 2. (2) The Cabinet Secretary shall cause copies of the order to be sent to the Director of Land Adjudication and to the Chief Land Registrar. 3. (3)When the appeals have been determined, the Director of Land Adjudication shall— 4. (a)alter the duplicate adjudication register to conform with the determinations; and 5. (b) certify on the duplicate adjudication register that it has become final in all respects, and send details of the alterations and a copy of the certificate to the Chief Land Registrar, who shall alter the adjudication register accordingly.” 42. The application filed herein by craft purports to ask this court to sit as an appellate court against the determination in the Minister’s Appeal No. 70 of 2016. I do not think that is proper. Section 29(1) (b) provides that the decision of the Minister on appeal shall be final. By delivering the judgement in Ministerial Appeal 70 of 2016, finality was rendered in respect to the claim towards the suit properties by the deceased and the rival family. 43. The Minister, in his wisdom, directed that the portions be consolidated and divided into two equal portions between the families of the late Kimweli Mwandundu and Mulu Mwandundu. By allowing an appeal in which the main plea was that many of the members of the two families, the import of the Minister’s decision was that even the persons who had been omitted were to be included in the distribution MLDELCLCNO.E021/26/RLG/DF-16.02.26/DR-01/10/26 Page 10 of 12

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of the land. I think it would have been prudent for the Applicant herein to follow up on the compliance of the mandamus orders which I issued in JR ELC No. E005 OF 2025. 44. I must restate that jurisdiction flows from statute. This court does not have jurisdiction to entertain the said application. 45. The orders sought would effectively suspend the implementation of the Minister's decision while preserving the Applicant's continued enjoyment of the entire parcels to the exclusion of the Defendant's family. Such relief would upset, rather than preserve, the prevailing legal position established under the Land Adjudication Act. An interlocutory injunction ought not to be employed as an instrument to defeat or postpone the implementation of a lawful administrative determination that remains valid and binding. 46. The Court is enjoined to adopt the course that carries the lower risk of injustice. In the present circumstances, preserving the status quo sought by the Applicant would perpetuate the exclusion of one family from land over which it has already been found to possess equal proprietary rights. 47. Conversely, permitting implementation of the Minister's decision merely gives effect to an existing determination directing consolidation and equal subdivision, thereby safeguarding the interests of both families rather than one. 48. Jurisdiction flows from the Constitution and statute, and where it is absent, a court must down its tools. Consequently, I find that this Court is divested of jurisdiction to entertain the present proceedings. 49. To allow the suit to proceed to a full hearing in the absence of jurisdiction or even a triable case would be a waste of judicial time as well as an abuse of court process. The parties herein are directed to collaborate and fast-track the implementation of the mandamus orders which this court issued on 31st January 2025. 50. I hereby make the following final orders; i. The Plaintiff’s Application and Plaint dated 16 th February 2026 are devoid of merit and are hereby struck out in their entirety; MLDELCLCNO.E021/26/RLG/DF-16.02.26/DR-01/10/26 Page 11 of 12

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ii. Costs of the Application and the Suit are awarded to the Defendant; iii. The Parties are hereby directed to follow up with the Director of Land Adjudication & Settlement, Kilifi, and County Surveyor, Kilifi to ensure compliance with the orders issued by this Court in ELCLJR/EOO5 OF 2O24Andrew Mwanzia Mulu Vs Director of Land Adjudication & Settlement Kilifi, and County Surveyor Kilifi; iv. This File is hereby marked as closed. Dated, Signed, And Delivered at Malindi on This 1st Day of October 2026 HON JUSTICE MWANGI NJOROGE JUDGE, ENVIRONMENT AND LAND COURT, MALINDI MLDELCLCNO.E021/26/RLG/DF-16.02.26/DR-01/10/26 Page 12 of 12

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