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ELCDismissedNot stated in the judgment (Petition dated 28th May 2024, with Cross-Petition)

Papiyio Investments Limited v Murero & 3 others; Murero & 2 others (Cross Petitioner); Papiyio Investment Limited & 2 others (Respondent) (Environment & Land Petition E006 of 2024) [2025] KEELC 1445 (KLR)

Environment and Land Court
20 March 2025
4,659 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Narok court refused to let a deceased family's estate control hotel revenue on disputed land, ruling such estate matters belong in succession courts, not land petitions.

What this practically means

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Executive summary

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The 3rd Cross-Petitioners/Applicants, administrators of the estate of John Tupenet Murero, moved the court by Notice of Motion dated 13th January 2025 in a constitutional petition concerning ownership of Narok/Cis-Mara/Lemek/190. They sought orders that all proceeds from the tourism facility operated by the Petitioner, Papiyio Investments Ltd, be paid into an escrow account, leave to take an inventory of tenants and inspect rent records, and in default, eviction of the Petitioner. They relied on a Certificate of Confirmed Grant of 2006 and cited Articles 27(1) and 40(3) of the Constitution. The Petitioner opposed, arguing that the Civil Procedure Rules, particularly Order 36, do not apply to Article 22 petitions governed by the Mutunga Rules; that it holds title and is protected by the status quo orders issued on 29th October 2024; and that the application sought final orders at an interlocutory stage. The court framed one issue: whether the application was merited. It found two competing titles that could only be resolved after the hearing of the Petition and Cross-Petition. It held that mandatory orders require special circumstances, none shown; that the Applicants did not develop or own the hotel; that eviction is a final order that would contravene the status quo order; and that the Mutunga Rules, not the Civil Procedure Rules, apply, while estate preservation orders belong to the succession court under sections 45 and 47 of the Law of Succession Act. The application was dismissed entirely with costs to the Petitioner/1st Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the instant application and/or the orders sought by the 3rd Cross-Petitioners/Applicants are merited

Key legal issues

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01

Whether mandatory interlocutory orders (escrow deposit of proceeds) could issue

Holding

Not merited; no special circumstances demonstrated

Reasoning

The court noted there are two competing titles that can only be resolved at the main hearing. The Applicants never developed or ran the hotel and gave no evidence of having previously collected proceeds that had stopped. Mandatory interlocutory orders require special circumstances and a higher degree of assurance, per Halsbury and Kenya Breweries Ltd v Washington Okeyo.

p. 8
02

Whether Order 36 of the Civil Procedure Rules applies to a constitutional petition

Holding

It does not; the Mutunga Rules govern

Reasoning

The court agreed with the Petitioner that a claim brought in a Petition under Article 22 is governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, not the Civil Procedure Rules. Further, Order 36 on summary judgment presupposes no defence filed, whereas the Cross-Petition is opposed.

p. 9
03

Whether eviction could be ordered at the interlocutory stage

Holding

No; it is a final order and would breach the status quo order

Reasoning

Both parties claim ownership and the court had ordered maintenance of status quo on 29th October 2024. Granting eviction would in effect review or overturn that order without any application for review or setting aside, and would let the Applicants steal a match on the Petitioner.

p. 9
04

Whether the court could preserve the estate under the Law of Succession Act

Holding

Such orders fall within the succession court's jurisdiction

Reasoning

The court found that depositing proceeds in escrow and taking inventory of tenants amounted to preserving the estate of the deceased, which only a succession court can order under sections 45 and 47 of the Law of Succession Act. The application was consequently found defective and untenable.

p. 10

Legal principles established

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  • A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases
  • The Civil Procedure Rules do not apply to constitutional petitions; the Mutunga Rules govern such proceedings

Court orders

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  1. 1.The Notice of Motion application dated 13th January 2025 is dismissed entirely
  2. 2.Costs of the application awarded to the Petitioner/1st Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 22 of the Constitution (constitutional petition under the Mutunga Rules)

Relief refused

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Order that all proceeds from the tourism facility on Narok/Cis-Mara/Lemek/190 be deposited into an escrow account

A mandatory order sought at interlocutory stage without demonstration of special circumstances

p. 8

Leave to take inventory of tenants and inspect rent and service charge records

No basis laid; the Applicants did not develop or own the establishment on the land

p. 8

Eviction of the Petitioner/1st Respondent from the suit property

A final order that cannot issue at interlocutory stage and would conflict with the status quo order of 29th October 2024

p. 9

Costs

Costs of the application awarded to the Petitioner/1st Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In a nutshell, the court finds and holds that the instant application dated 13th January 2025, is not merited and is fatally defective. Consequently, arrive at a conclusion that the said application cannot stand and is dismissed entirely with costs to the Petitioner/1st Respondent.
p. 10Disposition
A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances
p. 8Mandatory interlocutory injunctions
The claim by the 3rd Cross-Petitioners/Applicants is brought in a Petition and not a Civil suit, and therefore, the Mutunga Rules apply herein, and NOT the Civil Procedure rules.
p. 9Applicable procedure in constitutional petitions
There are two titles herein one being held by the Petitioner, and the other by the Cross-Petitioners. These are competing interests, and the issue of who is the lawful owner of the suit property, or who is holding a valid title can only be determined after hearing of the main Petition and the Cross Petition
p. 7Competing titles reserved for trial

Issues in the judgment

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minor

The application date is inconsistently stated as 13th January 2025 and 13th July 2025

minor

Petitioner's title deed number inconsistently stated as No.5178 and No.365487 is attributed to the 1st and 2nd Respondents' title

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Papiyio Investments Limited v Murero & 3 others; Murero & 2 others (Cross Petitioner); Papiyio Investment Limited & 2 others (Respondent) (Environment & Land Petition E006 of 2024) [2025] KEELC 1445 (KLR)", Case Analysis (2025). Not stated in the judgment (Petition dated 28th May 2024, with Cross-Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1445/eng@2025-03-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.