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ELCPartially AllowedELC NO. E035 OF 2025

Ngewa v Musili (Sued as the Administrator fo the Estate of Kalondu Musili Kisilu alias Kalondu Musili Kisiu) (Environment and Land Case E035 of 2025) [2026] KEELC 4413 (KLR)

Environment and Land Court
14 July 2026
2,063 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Makueni land buyer who occupied land for decades won a court order stopping interference with it, but cannot use the Environment and Land Court to fight a succession case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni (Obaga, J) on a Notice of Motion dated 26 September 2025 by the Plaintiff, Wilson Mutua Ngewa, against the Defendant, Florence Wanza Musili. The Applicant claimed he purchased the whole of parcel KISAU/SAKAI/273 from Kalondu Musili Kisilu (deceased) in portions between 1984 and 2008 and has possessed it for over forty years, developing it with trees, crops and a sand dam. He complained that the Defendant, armed with a certificate of confirmation of grant in Makueni CM Succession Cause No. E152 of 2023 (in which he was protestor), entered the land, cut trees for firewood and charcoal, pitched a tent and dug a pit latrine, and threatened alienation. The Defendant filed no response, so the Applicant's unchallenged evidence stood. Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found a prima facie case of threat to the Applicant's possessory rights and irreparable harm not compensable in damages, holding that ownership would not be determined at the interlocutory stage. Prayers (3) and (4), seeking temporary injunctions restraining interference with and use of the suit property pending trial, were granted. However, the court declined prayer (7) seeking stay of the succession cause, holding that under Section 13(2) of the Environment and Land Court Act the ELC lacks jurisdiction over probate proceedings, following Karanja v Kamau. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the Applicant has met the legal threshold for issuance of the injunctive orders sought
  2. 2.Whether this court can stay proceedings in Makueni Chief Magistrates Court Succession Cause No. E152 of 2023 IN THE MATTER OF THE ESTATE OF KALONDU MUSILI KISILU alias KALONDU MUSILI KISIU

Key legal issues

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01

Whether the Applicant met the threshold for temporary injunction

Holding

Yes; the Applicant demonstrated a prima facie case of threat to his possessory rights and irreparable harm not compensable in damages; the balance of convenience limb was superfluous

Reasoning

The Applicant produced sale agreements with the deceased proprietor and unchallenged photographic evidence of trees, crops, a sand dam, freshly cut trees, a tent structure and a pit latrine. His possession was not challenged by the Respondent. The court stressed that ownership was not being determined, only that there was prima facie evidence of a genuine threat to his rights, satisfying the first two Giella limbs.

p. 6
02

Whether the ELC can stay the succession cause

Holding

No; the court is divested of jurisdiction over probate proceedings, and stay of proceedings was refused

Reasoning

Relying on Section 13(2) of the Environment and Land Court Act and the decision in Karanja & another v Kamau, the court held that challenges to succession causes, including execution of a confirmation of grant, belong under the Succession Act procedures in the probate court or High Court, not the ELC. The Applicant's protest outcome was unknown and the proper recourse lay elsewhere.

p. 8

Legal principles established

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  • An applicant for an interlocutory injunction must show a prima facie case with probability of success, irreparable injury not compensable in damages, and, if in doubt, the balance of convenience
  • An Environment and Land Court has no jurisdiction to stay proceedings in a succession cause before a probate court; each court must stick to its lane

Court orders

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  1. 1.A temporary injunction restraining the Respondent, whether by herself, her agents and/or servants, from cutting down trees, pitching tents and/or any structure temporary or otherwise, digging holes for pit latrine or any other purpose, or otherwise interfering with and acting on the suit property KISAU/SAKAI/273 in any manner whatsoever pending the hearing and determination of the main suit (prayer 3)
  2. 2.A temporary injunction restraining the Respondent from performing any and all acts amounting to use of the suit property, including but not limited to actively cutting down trees on a daily basis for firewood and charcoal, pending hearing and determination of the main suit (prayer 4)

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act

Relief refused

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Stay of proceedings in Makueni Chief Magistrates Court Succession Cause No. E152 of 2023 (prayer 7)

The ELC lacks jurisdiction to stay or interfere with proceedings before a probate court; the Succession Act sets out the proper avenue for challenging a succession cause

p. 8

Costs

No costs order made in the ruling.

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.

Ultimately, the Applicant has demonstrated merit in the application for issuance of temporary injunctive orders only. The application is hereby allowed in terms of prayers (3) and (4).
p. 8Disposition
It is no part of the Court's function at this stage of the litigation to try and resolve conflicts of evidence on affidavit as to facts which ultimately which depend nor decide for detailed call on to claims argument of difficult either party questions of mature and law considerations.
p. 6Interlocutory stage - American Cyanamid
A determination of ownership of the suit property is not being made. Rather, that there is prima facie evidence of a genuine threat to the Applicant's right to the suit property.
p. 5Nature of interlocutory findings
On jurisdiction, each court must stick to its lane and not encroach on the other's space.
p. 8Jurisdictional boundaries between ELC and probate court

Issues in the judgment

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minor

Date inconsistency: the document is styled a 'JUDGMENT'/ruling on a motion dated 26 September 2025 with submissions dated 30 January 2026, yet is endorsed as delivered on 14 July 2026 and bears the heading 'RULING'; internal references also cite a 2025 High Court case number ('Rono b Bank of Africa Limited & another (Commercial Case E005 of 2025)') as relied on by counsel

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, "Ngewa v Musili (Sued as the Administrator fo the Estate of Kalondu Musili Kisilu alias Kalondu Musili Kisiu) (Environment and Land Case E035 of 2025) [2026] KEELC 4413 (KLR)", Case Analysis (2026). ELC NO. E035 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4413/eng@2026-07-14

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