https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4177

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MALINDI** **ELC CASE NO. E034 OF 2024** **ADIL SALIM AWADH…………………………………….…PLAINTIFF** **VERSUS** **NATIONAL MUSEUM OF KENYA……...…………….1ST DEFENDANT** **HARON TETE NDUNDI……..…………………..……2ND DEFENDANT** **RICHARD KEN CHONGA………………...………….3RD DEFENDANT** **COUNTY GOVERNMENT OF KILIFI………………4TH DEFENDANT** **JUDGMENT** 1. By way of a plaint dated 26th March, 2024, the plaintiff herein instituted this suit against the defendants seeking: 2. **A declaration that the suit property, known as Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situated at Mtwapa within the County of Kilifi, is private land registered in the name of and owned by the plaintiff, Adil Salim Awadh.** 3. **A declaration that there exists a public access road passing between the boundaries of the suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi, and Land Plot Number MN/II|/944, all the way down to the beach near the Mtwapa Creek, for use by the plaintiff and other members of the public as access to the said beach near the Mtwapa Creek.** 4. **A declaration that the plaintiff is entitled to use and enjoy the public access road passing between the boundaries of the suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi, and Land Plot Number MN/III/944, for access to the beach via that road.** 5. **A declaration that the 1st defendant, National Museums of Kenya, has no estate, right of ownership, possession, and/or title over the said public access road passing between the boundaries of the suit property, Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi, and Land Plot Number MN/III/944, and/or any right that could preclude or contravene the rights of the public, including plaintiff, to use and enjoy the said public access road for accessing the beach near the Mtwapa Creek, or at all.** 6. **An Order restraining the defendants, themselves, their servants, and/or agents from interfering with, obstructing, or in any manner whatsoever hindering the plaintiff's free use of the aforesaid public access road passing between the boundaries of the Suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi, and Land Plot Number MN/III/944 to the beach near the Mtwapa Creek, or at all.** 7. **A permanent Order of injunction be issued restraining the defendants, either by themselves or through their servants, agents, and/or persons working under their instruction, permission, and/or direction, from trespassing onto the suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi, and Land Plot Number MN/I|I/944, and/or from demolishing the perimeter boundary wall constructed thereon, and/or from interfering with the plaintiff's rights to peaceful, quiet possession, control, ownership, and occupation of the said Suit property.** 8. **An Order of mandatory injunction directing the 1st defendant, National Museums of Kenya, and the 4th defendant, County Government of Kilifi, to open and make accessible the public access road passing between the boundaries of the suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi, and Land Plot Number MN/III/944, for the free use by the plaintiff and the members of the public.** 9. **As an alternative to prayer (g) hereinabove, the plaintiff be granted liberty to forthwith make accessible, at his own cost, the public access road passing between the boundaries of the suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi, and Land Plot Number MN/III/944, for use by the members of the public, including the Plaintiff, to access the beach near the Mtwapa Creek.** 10. **An Order directing the 4th defendant to forthwith evict and demolish the illegal structures, such as bandas, constructed along the perimeter boundary wall of the Suit property, Land Plot Number 318, Section I, Mainland North, registered as Land Title Number C.R. 8741.** 11. **In the alternative to prayer (i) hereinabove, the plaintiff be at liberty to evict and demolish at the cost of the 4th defendant the illegal structures, such as bandas, constructed along the perimeter boundary wall of the Suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741.** 12. **Costs of this suit.** 13. The 1st defendant filed a defense dated May 14, 2024, seeking dismissal of the plaintiff’s suit and counterclaimed. In the counterclaim, the 1st defendant sought the following reliefs: 14. **An order of permanent injunction restraining the plaintiff or any other person, their servants or agents, from laying claim to, interfering with, or dealing with the suit property in any manner;** 15. **An order canceling the title issued to the plaintiff in respect of the subject suit property and/or any allocation or registration of the same to private parties;** 16. **A declaration that the suit property is public land set aside for public purpose and benefit as a National Monument.** 17. **General damages for the destruction of the ruins, as the court may deem fit.** 18. **Costs of the counterclaim and interest thereon at court rates** 19. The 2nd and 3rd defendants never entered an appearance or filed any defenses in the suit. 20. The plaintiff, Adil Salim Awadh, testified as PWI and called a surveyor, one Edward Kiguru Marenya, who testified as PW2. 21. On the other hand, the 1st defendant called one witness, Denis Milewa, a cartographer with the 1st defendant, who testified as DWI. 22. The 2nd, 3rd, and 4th defendants did not call any evidence. 23. PWI testified and adopted his statement dated March 26, 2024, and his supplementary witness statement dated May 17, 2024, and produced the exhibits attached thereto. 24. Plaintiff testified that he is the registered owner and proprietor of the land known as Land Subdivision Number, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situated at Mtwapa within the County of Kilifi, where he has a residential home. He produced the Certificate of Title and the Official Search thereon as evidence. 25. He testified that he purchased the Suit property from I & M Bank Limited by way of a purchase through private treaty sometime on 23rd August, 2022. He produced the Sale Agreement dated 23rd August, 2022, as evidence 26. He stated that at the time he purchased the suit property, there was, and there remains, an existing public road running along the boundary of the Suit property, between the suit property and the property known as Land Plot Number MN/III/944 opposite thereto. The public access road running between the suit property and Land Plot Number MN/III/944 runs along the respective boundaries of the 2 properties all the way down to the beach near the Mtwapa Creek and serves as an access road for use by the 2 properties and the general public to access the beach down below near the Mtwapa Creek. He produced the Boundary Survey Report dated 6th December 2023, prepared by the County Surveyor of Kilifi County, depicting the boundary of the suit property, and a Survey plan/drawing depicting the said public access road that runs all the way down to the beach near the Mtwapa Creek. 27. He stated that he is entitled to use the public access road that runs along the boundary of his suit property, between the suit property and Land Plot Number MN/III/944, all the way across and down to the beach provided by the Government of Kenya for use by the public. The said road has not been officially closed by the Government of Kenya through gazettement, or at all. 28. He claimed that the 1st defendant has denied him the right to use and enjoy the aforementioned road, which runs between the boundaries of the suit property and Land Plot Number MN/III/944 and extends all the way down to the beach near the Mtwapa Creek, on the ground that the road belongs to the 1st defendant, which is not the case. 29. He testified that after acquiring the suit property, he later obtained the necessary approvals from the relevant government offices, including the 4th defendant, to construct a perimeter wall along the boundaries of the Suit property. He produced the Approval for construction dated 11th May, 2023, issued by the 4th defendant County Government; the National Environment Management Authority (NEMA) approval dated 27th May, 2023; and the Certificate of Compliance issued by the National Construction Authority on 31st May, 2023, as evidence. 30. He contended that ever since the perimeter boundary wall on the suit property was erected, the 1st defendant began alleging that the suit property belongs to the National Museums of Kenya. In contrast, the 2nd, 3rd, and 4th defendants began alleging that the suit property is public land. The 2nd and 3rd defendants have openly incited members of the public, alleging that the suit property is public land, and, on that basis, have threatened to trespass onto and forcibly enter the suit property, demolish its perimeter boundary, and thereafter subdivide the property and have it allocated to the locals. 31. He alleged that the 2nd and 3rd defendants took advantage of their respective positions as elected officials, incited their goons, and even mobilized the machinery of the 4th defendant County Government to demolish the perimeter boundary wall on the suit property with the intention of gaining access thereto and dispossessing him of the same. On 25th March, 2024, officials from the 4th defendant County Government informed him that, from 26th March, 2024, the 4th defendant would demolish the boundary wall to recover the alleged public land, without any further reference to him. He believed that the well-choreographed and coordinated actions of the defendants and their hired goons were nothing but an attempt by the defendants, especially the 2nd and 3rd defendants, to grab the suit property from him and appropriate it for themselves. 32. He stated that, by dint of the 1st defendant's actions in denying him the right to use and enjoy the aforementioned survey access road along the boundary of his suit property and Land Plot Number MN/III/944, he is unable to enjoy the suit property to its maximum extent fully and therefore suffers loss. The defendants' concerted efforts and actions interfere with his rights to peaceful and quiet possession, control, and occupation of the suit property. The 2nd and 3rd defendants are taking advantage of their respective elective positions to incite the public to support their nefarious land-grabbing schemes by mobilizing groups of rowdy goons to storm the suit property and demolish the perimeter boundary wall he constructed thereon, to dispossess him. The 2nd , 3rd , and 4th defendants incited goons to build shacks and makeshift structures along the boundary wall of the suit property and to convert sections thereof into a dumpsite to spite the plaintiff, thereby turning the southward boundary of the suit property into an unsafe zone and an eyesore. The foregoing actions interfere with his rights of use and enjoyment of the suit property. He produced photographs he took along a portion of the perimeter boundary wall depicting the illegal structures constructed thereon with the permission of the 2nd, 3rd, and 4th defendants. Unless restrained by this court, the defendants shall continue their actions complained of hereinabove to his loss and detriment. 33. He averred that he has occasionally met with the officials of the 1st and 4th defendants to discuss opening the public road that runs between the Suit property and Land Plot Number MN/II1/944, extending all the way across and down to the beach near the Mtwapa Creek, but the said defendants have refused to open the public access road that runs between the Suit property and Land Plot Number MN/II/944. The defendants have also rejected proposals to pave the public access road that runs between the suit property and Land Plot Number MN/III/944 for public access to the beach. In the foregoing premises, he contends that the 1st and 4th defendants be directed jointly and severally to open and make accessible for use by himself for the suit property and by members of the public the public access road that runs between and along the boundaries of my suit property and Land Plot Number MN/III/944 to access the beach. 34. Plaintiff testified that the 1st defendant alleges that there are ruins on the North Bank of Mtwapa Creek, gazetted on the suit Property Land Plot Number 318/III/MN as National Monuments. This allegation is based on a Gazette Notice dated 15th June, 1935, published in 1935, as well as on a Subsidiary Legislation of 1962 and a Report dated July, 2015. However, that was false. The area generally referred to as the North of Mtwapa Creek encompasses all parcels of land from the Mtwapa Bridge to the right and northward toward the Kanamai-Kikambala areas. The ruins on the North Side of Mtwapa Creek, therefore, refer to the ruins falling on the parcels of land within that general area. 35. He stated that the suit property falls within the general area north of Mtwapa Creek, but there are no gazetted ruins or monuments on the suit property, as alleged by the 1st defendant. Neither the Gazette Notice of 1935, the Subsidiary legislation of 1962, nor the Report of July 2015 mentions the suit property as containing any of the alleged ruins. 36. He denied the allegations that the suit property contains monuments, which he claims were started in 2022 when the 1st, 2nd, and 3rd defendants invaded the land and began demolitions there, which he still believes was a well-choreographed land-grabbing enterprise aimed at depriving him of his private property, under the guise that they were stopping a developer who was allegedly destroying monuments. 37. He asserted that he noted the admission by the 1st defendant in its Letter dated 1st December, 2022, that the ruins on the North of Mtwapa Creek are Gazetted vide the Gazette Notice Number 13563 dated 28th September, 2012, and Number 9120 of 11th December, 2015, earlier done in 1935, and the subsidiary legislation of 1962. 38. Bearing the foregoing in mind, he obtained and perused the aforesaid Gazette Notice Number 13563 dated 28th September, 2012, which provides that the Ruins of Mtwapa Creek fall within the area of land known as Mtwapa Ruins on the North of Mtwapa Creek, measuring approximately 5.1518 Hectares, within Parcel Numbers MN/III/942, MN/III/943, and MN/III/944 in Mtwapa Location, Kilifi District of Kilifi County, as shown on Plan FR. No. 187/67, deposited at the Survey of Kenya Office, Nairobi. The Gazette Notice Number 13563, together with its contents, was confirmed by way of a subsequent Gazette Notice Number 9120 dated 11th December, 2015, issued by the 1st defendant itself. His suit property does not fall within the Mtwapa Ruins as alleged by the 1st defendant. He produced the Gazette Notice Number 13563 dated 28th September, 2012, and the Gazette Notice Number 9120 of 11th December, 2015, as exhibits. 39. He denied the allegations that the suit property was the product of an illegal subdivision, that it was not available for allocation to a private individual, or that his title is purportedly null and void. These allegations are unfounded and bereft of any legal and/or factual basis or merit, as the suit property did not fall within an area declared by the Government as a protected monument. 40. He denied that he destroyed, injured, altered, or defaced ruins on the North bank of Mtwapa Creek, allegedly falling on the suit property, as alleged. If anything was destroyed or defaced, it was done so by the 2nd defendant, who invaded the area with his goons, including trespassing onto the suit property and commencing demolition of his structures thereon. He reported the incident to the Mtwapa Police Station vide OB. No. 60/30/11/2022, and some of the perpetrators were arrested and thereafter bailed out by the officers of the 1st defendant. 41. He stated that the 1st defendant admits in its own Letter dated 1st December, 2022, that whichever ruins are alleged to have been demolished, if at all, fall within the parcels of land known as Land Plot Numbers 942/III/MN, 943/III/MN, and 944/III/MN, not the suit property. The suit property does not fall within the protected area of the Mtwapa Ruins. As such, he was under no obligation to conduct a Heritage Impact Assessment and/or obtain any consent from the 1st defendant before reconstructing the perimeter wall on the suit property to better protect his land from invaders and land-grabbers. He stated that there was already a perimeter wall on the suit property long before he purchased it in 2022. This can be confirmed from the bundle of annexures to the Replying Affidavit of the 1st defendant, specifically Pages 18 and 19 of an ESIA Report dated 11th September, 2017, prepared by the 1st defendant, which affirms that four meters next to Test Pit 3 was Dr. Panesar’s boundary wall fence. Dr. Panesar was the previous owner of the suit property, and Test Pits 3 and 4 were dug on Land Plot Number 944/III/MN. Dr. Panesar’s boundary wall fence, as captured in the aforesaid ESIA Report dated 11th September, 2017, is the same boundary wall fence that the defendants later unlawfully destroyed during their initial attempt to grab the suit property. It is the same boundary wall fence that he reconstructed to protect the suit property from being grabbed by the defendants and their goons. 42. Plaintiff testified that he has never been a party to **Mombasa ELC Suit No. 4 of 2007 – Sergio Lieman v National Museums of Kenya**; at the time that the suit was filed, he had not even purchased the Suit property. Third, the subject matter of that suit was Land Plot Number 944/III/MN, not his suit property. 43. He stated that, based on the ESIA Report dated September 11, 2017, referred to in Paragraph 30 of the Replying Affidavit, the subject matter of the Report is the property known as Land Plot Number 944/III/MN, and that the road whose opening was being litigated in **Mombasa ELC Case No. 4 of 2017** was to pass through the said Land Plot No. 944/III/MN. 44. He stated that he also observed, from Clause 4.2.5 of the ESIA Report dated 11th September, 2017, that the 1st defendant directed that an alternative road, known as the Bandari Beach Road, be used as an alternative route to serve Land Plot No. 944/III/MN. What the 1st defendant has failed to disclose to this Court is that the said Bandari Beach Road also passes through the said Land Plot No. 944/III/MN and was intended to serve parcels adjoining Land Plot No. 944/III/MN, created for public access to the Bandari beach at the Mtwapa Creek area. 45. He contended that the public access road passing between the boundary of his Suit property, Land Plot No. 318/III/MN, and that of Land Plot No. 944/III/MN is also intended to provide public access to and from the Bandari beach at Mtwapa Creek. 46. He stated that the Survey Report dated 17th May, 2024 (produced by PW2), which he commissioned for this suit, Plot No. 318/III/MN, establishes that the suit property arose from a subdivision of an already existing private land, Land Plot No. 108/III/MN, sometime in the year 1922, as opposed to what the 1st defendant has falsely alleged. The Survey Report dated 17th May, 2024, was produced as PEXH8. The Survey Report dated 17th May, 2024, also affirms that the access road passes between the suit property and the land plot No. 944/III/MN, all the way down to the Bandari beach, and that this road was surveyed and demarcated for that purpose in the year 1922, long before the gazettements in question in this suit, albeit not forgetting, as clarified in the Gazette Notice Number 13563 dated 28th September, 2012, as read together with Gazette Notice Number 9120 of 11th December, 2015, that the suit property, Land Plot No. 318/III/MN, is not gazetted by the 1st defendant. 47. In the premises, the plaintiff asserted that it is presumptuous for the 1st defendant to open the road passing through Land Plot No. 944/III/MN down to the Bandari beach, while at the same time refusing to open the already surveyed and demarcated public access road passing between the suit property and Land Plot No. 944/III/MN for access to the Bandari Beach. 48. He stated that the mandate of the 1st defendant is to conserve gazetted National Monuments and Heritage Sites, and that this mandate does not confer ownership of the pieces or parcels of land on which the national monuments and heritage sites sit. For example, the entire Lamu Old Town and Mombasa Old Town are gazetted as National Monuments and/or Heritage Sites. However, the parcels within them are still owned by private individuals. The fact that Lamu Old Town and Mombasa Old Town are part of National Monuments and Heritage Sites has not translated into the 1st defendant's ownership of the private parcels of land therein. 49. He averred that It was therefore distasteful, spiteful and an act of bad faith on the part of public officers more particularly the officials of the 1st defendant in conjunction with 2nd defendant and 3rd defendant and its County Askaris as supported by their goons, to parade themselves on National television networks and allege that the suit property is public land owned by the 1st defendant, all to lend credence to their ill-fated attempt at grabbing the suit property for their selfish gains. The suit property is private land and is not gazetted as a National Monument or a Heritage Site, as alleged by the 1st defendant. As such, the 1st defendant has no mandate or role in relation to the suit property, as alleged. The same way that the 1st defendant opened the already surveyed and demarcated road passing through Land Plot No. 944/III/MN to serve as access to the Bandari beach at Mtwapa Creek from the north-western part of Mtwapa Creek area, is the same way that the 1st defendant should be compelled to open the already surveyed and demarcated road passing between Land Plot No. 944/III/MN and the suit property to serve access to the Bandari beach from the south-western part of Mtwapa Creek area. 50. Plaintiff averred that, despite having been served with the Order of injunction issued by this Court, the 1st defendant, together with the other defendants and Askaris from the County Government of Kilifi, descended onto the suit property and demolished his gate and part of the perimeter wall fence of the suit property. This is the same wall they demolished, even though they acknowledged its existence in their ESIA Report dated 11th September, 2017. 51. Furthermore, he reiterated that if anything was destroyed, removed, injured, or defaced as alleged by the 1st defendant, such destruction, removal, injury, and defacing were caused by the defendants themselves and/or their servants, agents, and hired goons while they were destroying his perimeter wall fence and gate in their foiled attempt to grab and evict him from his property. 52. The 1st defendant called one witness, Dennis Milewa, its cartographer, who testified as DWI. He testified that the 'ruins on the North bank of Mtwapa Creek,' located across multiple properties, including the subject property herein, plot No. 318 Section III Mainland North (MN/III/318), were gazetted in 1935 as National Monuments under the then Preservation of Objects of Archaeological and Paleontological Interest Ordinance (now the National Museums and Heritage Act, 2006). The gazettement was made vide Gazette Notice No. 445, dated 15th June, 1935, and published on 25th June, 1935. 53. He asserted that the gazettement of the ruins on the North bank of Mtwapa Creek as national monuments was reaffirmed and reiterated by the government through subsidiary legislation titled 'Preservation of Objects of Archaeological and Paleontological Interest, 1962'. The ruins on the North bank of Mtwapa Creek were declared protected monuments because of the rich archaeological and paleontological materials present in the area. The area is also rich in biodiversity. Kenya is privileged to have such ruins, which are found only in the Kenyan Coastal Region. 54. He stated that a 2017 Cultural Heritage Impact Assessment noted that the subject suit property, Plot No. 318, Section III, Mainland North (MN/III/318), falls within the above-stated gazetted 'ruins on the North bank of Mtwapa Creek'. The subject suit access road adjacent to the suit property also falls within the gazetted 'ruins on the North bank of Mtwapa Creek'. 55. He testified that at the time of the above-mentioned gazettement in 1935, the suit property was not under any private ownership. As such, the property acquired public interest upon gazettement and was thereafter unavailable for private allocation. The effect of gazetting 'the ruins on the North bank of Mtwapa Creek' as national monuments was that the entire area within the gazetted ruins, including both the subject suit land and the access road, became a protected area requiring constant maintenance and the preservation of the archaeological and paleontological objects therein, together with the existing biodiversity. The preservation of the gazetted monuments, including the suit property herein, was for public purpose and benefit. 56. The above public purpose and benefit conferred ownership of the subject protected area to the public from the aforesaid date of gazettement, thereby making the area unavailable for allocation to private individuals. 57. The suit property, including the area through which the subject access road passes, still possesses the heritage value for which the ruins on the North bank of Mtwapa Creek were gazetted, and the same ought to be preserved for posterity. 58. Since the gazettement in 1935, the subject protected area has never been degazetted or had its use changed to convert it from a public protected area for the preservation of archaeological and paleontological interest to private use. The existence of the gazette notices renders any subsequent registration and issuance of titles from the date of gazettement fraudulent, illegal, and null and void ab initio. 59. He proceeded to state that in 1937, there were illegal subdivisions and allocations of portions of land falling within the gazetted 'ruins on the North bank of Mtwapa Creek'. The subject suit property herein was one of those illegal subdivisions that led to the allocation of a gazetted monument to a private individual. The allocation was therefore null and void ab initio because the area was already a protected public area/land and therefore not available for allocation to private use. 60. Given the above status of the subject suit land as a protected public area pursuant to the stated gazettement, no estate, interest, or right in the suit property, or any proprietary interest therein, could be conferred or passed to any third party unless the area is de-gazetted first. 61. For the foregoing reasons, the acquisition of title to the subject suit land in 1937, together with subsequent transfers, including the transfer to the plaintiff herein in 2022, was illegal, unprocedural, and/or obtained through corrupt schemes, thereby rendering them null and void. 62. The witness further stated that, be that as it may, when the government declares an area a protected monument under the provisions of the National Museums and Heritage Act, 2006, and that area falls within private land, certain legal obligations still must be observed by the private owner when dealing with that land. National Museums of Kenya is statutorily mandated to ensure that the heritage integrity of such a site/land is maintained at all times for posterity. 63. It is a criminal offense for any person to destroy, remove, injure, alter, or deface a national monument. Removing any permanent or movable structures of any kind that have natural and historical significance and are part of a protected area is prohibited unless such removal is essential for their conservation or restoration and the person has obtained the Minister's written permission. 64. That blatant disregard for the above legal requirements, in or around November 2022, the plaintiff herein caused the ruins on the north bank of Mtwapa Creek, situated on the subject suit property, to be destroyed, removed, injured, altered, and/or defaced. The plaintiff committed the above acts without obtaining prior authorization or advice from the relevant Cabinet Secretary or the National Museums of Kenya. 65. Following the above criminal acts committed by the plaintiff, the 1st defendant lodged a complaint at the Mtwapa Police Station under O.B. No. 63 of 29/11/2022, requesting that the relevant investigations be conducted and that the plaintiff be prosecuted under Section 45 of the National Museums and Heritage Act, 2006. 66. In the letter dated December 1, 2022, the 1st defendant wrote to the Kilifi County Criminal Investigations Officer, requesting that the plaintiff be investigated for the above-stated criminal acts and that necessary actions be taken against him. 67. On December 14, 2022, the Office of the Director of Public Prosecutions wrote to the Kilifi County Commander, noting that the above-stated suspected offense was committed against national heritage and that investigations ought to be concluded urgently so that further necessary steps could be taken against the plaintiff. He and other representatives of the 1st defendant subsequently recorded witness statements at the Mtwapa Police Station, in the hope that the necessary investigations and actions would be taken against the plaintiff. 68. Despite the above efforts by the 1st defendant to have the necessary actions taken against the suspect plaintiff, the Police at Mtwapa Police Station and/or the relevant investigative agencies dilly-dallied on the matter, and to date no action has been taken against the suspect plaintiff by the relevant agencies. 69. The above indecision and/or dilly-dallying by the Police and/or relevant investigative agencies emboldened the plaintiff, who has now moved to erect a fence along the protected area without any consent from the relevant Cabinet Secretary and/or the National Museums of Kenya. 70. Condition No. 3 of the NEMA certificate produced by the plaintiff, approving construction of the subject fence along the suit property, required the plaintiff to comply with relevant principal laws, by-laws, and guidelines issued by the relevant authorities before erecting the fence. 71. The 1st defendant herein is one of the relevant authorities who, through the relevant Cabinet Secretary, the plaintiff ought to have obtained permission and/or guidance before any dealing with the subject suit property, given its status as a gazetted national monument. 72. That, in total disregard of the requirements stated above, the plaintiff never conducted a prerequisite Heritage Impact Assessment and/or obtained consent/permission from the relevant Cabinet Secretary before erecting the fence and/or dealing with the suit property, which has gazetted monuments. 73. As regards the subject access road which the Plaintiff seeks to have opened, the same was the subject matter in **Mombasa ELC No. 4 of 2007; Sergio Lieman v National Museums of Kenya**, wherein the court directed, on 12th June, 2025, that NEMA, in conjunction with the 1st defendant, carry out an Environmental and Social Impact Assessment Study (ESIA) to guide further directions on the issue before the access road could be opened. 74. Following the above-said court orders, an ESIA exercise was conducted by a NEMA-licensed expert and an ESIA Report was produced. The report included aspects of Heritage Impact Assessment for the area that would be affected by opening the access road. 75. After reviewing the Environmental and Social Impact Assessment Report prepared regarding the possible opening of the subject access road, NEMA issued a final decision declining to issue a license for the opening of the subject access road, noting that the access road traverses a heritage property gazetted by the National Museums of Kenya in 1935 and that opening it will damage and potentially negatively impact the property's heritage value. 76. NEMA further observed that the subject property's heritage value is protected under both the National Museums and Heritage Act, 2006, and Article 10 of the Constitution of Kenya, 2010. NEMA advised using alternative access roads. 77. Following the above final decision by NEMA, the issue of opening the access road is dispensed with unless the decision is challenged in court and/or appealed. Other studies have shown that opening the subject access road would severely damage the ruins and, in turn, interfere with the heritage value of the protected site. 78. The statutory mandate of the 1st defendant is to ensure that any proposed developments and/or activities within a heritage-protected area conform to heritage conservation standards. NMK carries out this mandate by assessing proposed developments and their potential impact on the heritage value of the protected area, and by either granting or denying consent and/or advising accordingly. 79. The 1st defendant's approvals for any developments within a protected area are usually issued subject to guidelines intended to preserve the site's heritage value. The developer is then required to adhere to those guidelines to ensure that the heritage value of the protected site is preserved. Failure to adhere to such guidelines constitutes a contravention of the National Museums and Heritage Act. The Plaintiff has not demonstrated that it obtained any such approvals and/or adhered to any required conditions. 80. The plaintiff destroyed, removed, injured, altered, and/or defaced the ruins within the subject land and continues to commit the same acts in blatant disregard of the law. 81. The heritage value for which NMK was primarily established to preserve and conserve, as aforesaid, is paramount and holds a special place in the hearts of the Kenyan public; thus, the maintenance and preservation of that value is a matter of public interest that ought to be protected at whatever cost. 82. Should the plaintiff be granted the orders sought in the suit, the 1st defendant is apprehensive that the plaintiff will continue to destroy the heritage value of the subject suit property, thereby rendering the 1st defendant's existence meaningless, as the 1st defendant's existence is predicated upon the preservation and conservation of the Country's heritage, the suit property herein included. 83. Based on the pleadings, evidence, trial, and counsel’s submissions, I identify the following issues for this Court's determination: whether the plaintiff has a valid and unchallengeable title to Land Reference Number 318/III/Mainland North; whether the suit property was ever officially designated a national monument or included in any protected heritage site; whether the plaintiff destroyed any alleged ruins; whether the 1st defendant lawfully exercised its statutory authority over the suit property; whether the defendants unlawfully trespassed on the property and carried out demolitions without proper procedure; whether the plaintiff is entitled to the declaratory and injunctive relief sought, along with damages; whether the 1st defendant’s Counterclaim is justified and the orders sought are sustainable; and, finally, the issue of costs. 84. There are two conflicting sides in this matter, with the plaintiff alleging that the suit property is private land and not within the purview of the 1st defendant, and the 1st defendant alleging that the suit property falls within the purview of public property and has the status of a gazetted national monument. 85. I will agree with submissions from counsel for the parties that Article 40 of the Constitution, regarding the protection of the right to property, applies here, as read with Sections 24, 25, and 26 of the Land Registration Act, which embody the principle that a Certificate of Title is *prima facie* evidence of proprietorship and can be impeached only on recognized grounds, including fraud or misrepresentation of which the proprietor is proved to be a party, or where the title is shown to have been acquired illegally, unprocedurally, or through a corrupt scheme. That said, the jurisprudence is settled that illegality or fraud is not presumed, and the burden is on the party alleging it. 86. Besides, under Article 40(3) and (4) provides that: ***“(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—*** ***(a)results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or*** ***(b)is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—*** ***(i)requires prompt payment in full, of just compensation to the person; and*** ***(ii)allows any person who has an interest in, or right over, that property a right of access to a court of law.*** ***(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.”*** 1. Based on the evidence adduced by the plaintiff and the surveyor, Mr. Kiguru, the root of the plaintiff's title traces back to the survey of Plot No.MN/111/108, completed on 14th July 1922, and its deed plan was issued. Plot No.MN/111/318 resulted from an excision of Plot No.MN/111/108. During the excision of Plot No.MN/111/318, an access road was proposed through Plot No.MN/111/108. This proposed road was later surveyed and documented in the various surveys carried out on Plot No.MN/111/108. The owner of Plot No.MN/111/108, at the time of the survey, was Salim Bin Khamis Bin Kombo, as captured in its survey plan, F/R No. 22/49. Plot No.MN/111/318 is well documented, and its survey has not been superseded by any other survey to date. Plot No. MN/111/318 has never been surrendered to the government to date. Plot No. MN/111/318 is the result of an excision of Plot No. MN/111/108, and this excision has not been canceled to date. 2. It is the surveyor's conclusion that the survey of plot no. MN/111/318 is well documented, and its survey records are available for public use. Plot no. MN/111/318 came into being through the excision of plot No. MN/111/108. Plot No. MN/111/318 has never been part of government land. The public access road bordering plot No. MN/111/318 is well documented and should be opened for public use. 3. In the documents produced in Court, the plaintiff has provided a search showing a series of transfers, either by transmission or by sale, of the suit property as private property since 1922, spanning over a century, culminating in its current ownership by purchase through a private treaty from I & M Bank Limited, followed by the plaintiff charging it to National Bank of Keya Limited. 4. On the contention by the 1st defendant that the land forms part of the 'ruins on the North bank of Mtwapa Creek,' located across multiple properties, including the subject property herein, plot No. 318 Section III Mainland North (MN/III/318), were gazetted in 1935 as National Monuments under the then Preservation of Objects of Archaeological and Paleontological Interest Ordinance (now the National Museums and Heritage Act, 2006). The gazettement was made vide Gazette Notice No. 445, dated 15th June, 1935, and published on 25th June, 1935. The same was reaffirmed and reiterated by the government through subsidiary legislation titled 'Preservation of Objects of Archaeological and Paleontological Interest, 1962'. 5. The 1st defendant asserts that the 2012 and 2015 Gazette notices fortify the earlier Gazette notice and that the court should purposively interpret the Gazette notices to find that if the adjacent plots were gazetted to have ruins, the suit property should be included as forming part of the intended 'ruins on the North bank of Mtwapa Creek'. 6. A review of the Gazette Notices shows that the 1935 Gazette Notice relied on by the 1st defendant is vague and lacks parcel numbers, coordinates, maps, or surveyed boundaries. On its face, it cannot identify the suit property as part of the 'ruins on the North bank of Mtwapa Creek'. 7. The specific Gazette Notices, namely Gazette Notice No. 13563 of 2012 and Gazette Notice No. 9120 of 2015, produced as PEXH12 and PEXH14, respectively, expressly delimit and identify the declared “Mtwapa Creek Ruins” as approximately 5.1518 hectares within MN/III/942, MN/III/943, and MN/III/944, defined by FR 187/67. The suit property, Plot 318, is conspicuously absent. During cross-examination, the 1st defendant’s witness admitted that the suit property, Plot 318, is not named in those Gazette Notices or in any other Gazette Notices. 8. The witness called by the 1st defendant did not rebut the evidence presented by the plaintiff, who called a surveyor who traced the history of the suit property as private land. As the plaintiff submitted, the logical consequence is unavoidable: if the State’s definitive declarations identify the protected ruins area by named parcels and a survey plan, and the suit property Plot 318 is not among them, then Plot 318 cannot be “imported” into that protected area by inference or by a report from a cartographer who was the only witness called by the 1st defendant. 9. Nothing would have been easier than for the 1st defendant to properly delineate this area, as it did in the subsequent Gazette Notices. The Court cannot be asked to infer that the described area falls within the plaintiffs' private property, which has existed for over a century, when the 1st defendant appeared in 2022 and claimed it without legal backing. 10. I agree with the 1st defendant's submissions that, in a line of cases, the ELC and the Superior Courts have held that land declared a public or protected area is not available for allocation. Kenyan Courts strongly protect gazetted national monuments, historical sites, and ancient ruins from private acquisition, systematically revoking private titles or allotment letters that encroach on them. 11. The primary jurisprudence holds that once an area is gazetted as a national monument under the National Museums and Heritage Act (or its predecessor, the Antiquities and Monuments Act), it becomes protected public land. Any subsequent allocation to a private entity is illegal and void ab initio. 12. In the **Ministry of Lands & Physical Planning & 5 others [2024] KEELC 4563 (KLR**), the ELC revoked a title deed held by the political party KANU for the prime land hosting the KICC. The Court declared the KICC a public asset. It ruled that allocating its land to a private entity or a political party was unlawful and unconstitutional, and the land was not available for private allocation. 13. In **Suchan Investment Ltd v Ministry of National Heritage & Culture & 3 others [2016] KECA 729 (KLR)**, the Court of Appeal addressed the legal tension between private landowners and government declarations of heritage. The case set critical procedural bounds, establishing how the government must legally declare a property a national monument and how private titles interact with national heritage declarations. Thus: ***“In the instant case, the appellant has a proprietary interest in the suit property. There is no evidence on record to show that the appellant was heard or given an opportunity to be heard in relation to its objections. The Ministry’s letter dated 16th July 2008 indicates that there was a comprehensive feasibility study conducted by the National Museums. From this letter, it is apparent that the Minister gave a hearing to one party and did not hear the proprietor of the suit property.*** ***40.The trial judge erred when he failed to appreciate that the appellant was not given an opportunity to be heard and the principle of audi alterem partem was not observed. Under common law the Minister is required to have accorded the appellant an opportunity to be heard in relation to the objection that had been lodged. We note that under Section 64 of the National Museums & Heritage Act, the burden to prove that the suit property is not of historical interest is on the appellant. How could the appellant company have discharged this burden when it had not been given an opportunity to be heard? In our view, failure to accord the appellant the opportunity to be heard denied the appellant company the opportunity to exercise its right under Section 64 of the Act.*** ***41.The appellant contends that its constitutional right to protection of private property was violated when the suit property was declared a National Monument. The evidence on record shows that the appellant was never given the comprehensive feasibility study conducted by the National Museum in relation to the suit property. The Constitution of Kenya in particular Article 47 makes provision for fair administrative action. Section 4 (3) (b) of the Fair Administrative Act stipulates that where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision an opportunity to be heard and to make representations in that regard. These provisions are given effect by the Fair Administration Act. Section 4 (3) (g) of the Act requires the person affected to be given information, materials and evidence relied upon in making the decision or taking the administrative action.*** ***42.In Gazette Notice No. 3204 of 25th April 2008, the Minister stated that the suit property was of historical interest. It is the appellant’s contention that the suit property has no historical interest; that there is confusion of historical facts as to who is the actual “Desai” whose residence the Minister claims to have historical interest. Counsel for the 1st respondent submitted that Mr. Desai was a prominent person who was even member of the LEGCO. There is no evidence on record to support this submission and in our view this is a statement from the bar with no evidential value.*** ***43.As to whether the Minister considered the objections raised, Section 25 (3) of the National Museums & Heritage Act imposes a duty on the Minister to consider the objections received. Our re-evaluation of the evidence on record has failed to reveal any written note, memorandum or letter by the Minister showing that he considered the appellant’s objection and or made any decision relating to the objections. The 1st, 2nd and 3rd respondents contend that Legal Notice No. 128 is proof that the appellant’s objection was considered by the Minister. The trial judge held that the Minister was unmoved by the objection. In the absence of any written note, letter or document from the Minister, can a conclusive inference be drawn that the Minister did in fact consider the appellant’s objection and he was unmoved?*** ***44.Related to the above question is whether the Minister was under duty to give reasons for his decision to declare the suit property a National Monument. At common law, there is no duty to give reasons. This was stated in Regina v Secretary of State for the Home Department Exparte Doody (1994) 1 AC 531 where Lord Mustill at 564 para. E-F expressed himself as follows:*** ***“I accept without hesitation – that the law does not at present recognize a general duty to give reasons for an administrative decision. Nevertheless, it is equally beyond question that such a duty may in appropriate circumstances be implied.”*** ***45.Under Article 47 (2) of the Constitution as read with the provisions of the Fair Administrative Actions Act of 2015, the common law position that there is no duty to give reasons for administrative decision is no longer a general principle of law in Kenya. A shift has taken place and there is requirement to give reasons for administrative decisions. (See also Section 45 (2) (a) and (b) of the Employment Act No. 11 of 2007). In Judicial Service Commission -v- Hon. Justice Mutava Mbalu, Civil Appeal No. 52 of 2014, Githinji JA in considering the duty to give reasons for administrative action in light of Article 47 (2) of the Constitution expressed that reasons for decision should be given as a matter of right where a right under the Bill of Rights has been or is likely to be adversely affected by the administrative action and not otherwise; that the right to be given written reasons for the decision can be limited by law for a reasonable and justifiable cause.”*** 1. In this case, as correctly asserted by the plaintiff, rights in private land cannot be extinguished by implication or administrative inference. Where the State intends to subject private land to public control, it must do so in clear and unambiguous terms, and the landowner must be accorded a hearing (**Suchan Investment Ltd (supra)**). That was not done here. 2. In **Republic v National Land Commission & Another ex parte Farmers Choice Ltd [2020] eKLR**, the Court held that public bodies must strictly prove the factual basis for alleging that private land is public or restricted. 3. The 1st defendant’s burden of evidence, therefore, necessitated fulfilling at least three obligations: firstly, to produce the defining survey plan, FR 187/67; secondly, to demonstrate, through reliable cadastral overlay or survey evidence, that Plot 318 is situated within the gazetted ruins area; and thirdly, to present credible heritage or scientific evidence pinpointing the location of the ruins on the suit property using precise coordinates and beacons, rather than conjecture. 4. None of these requirements were fulfilled. Instead, the 1st defendant called a single witness, as established during cross-examination, who was not a surveyor, lacked statutory authority over land titles, and was incapable of authenticating survey boundaries. Legally, a Court does not base its findings on a witness whose expertise is limited and who asserts conclusions that necessitate robust survey proof. 5. In a nutshell, the plaintiff has proved that the suit property is private property not under the control or restriction of the 1st defendant. Nothing has been shown to indicate that the suit property was obtained through fraud or acquired unprocedurally or corruptly. The alleged setting aside as a national monument or heritage site has not been proved. Instead, the suit property has been private land for over a century, as shown by the search certificate and survey report. 6. Regarding the destruction of ruins on the suit property, the plaintiff asserts there were no disturbances, while the 1st defendants assert there were. 7. It will be noted that both the plaintiff and the 1st defendant reported to the police to protect their interests in the suit property. The former alleged invasion of his private property by illegal demolitions and warding off alleged grabbers, and the latter alleged destruction of the protected ruins on site. The police or the investigative agencies have taken no action regarding these reports. Perhaps this investigation may clarify the status of the ruins on the suit property. This civil suit may yield nothing, given that the plaintiff has proved that the suit property has always been private and that the 1st defendant has failed to establish the procedures and legal processes it has undertaken to bring the suit property within its purview, as it has done to the adjacent properties through Gazette Notices. 8. On whether the 1st defendant lawfully exercised its statutory authority regarding the suit property, the answer is that the 1st defendant has failed to establish its legal mandate and control of the suit property. The 1st defendant must follow proper legal procedures to acquire the suit property and bring it within its purview. 9. Throughout the extensive history of the suit property as private property, DWI alleged that the 1s defendant controlled the suit property. However, a review of the evidence adduced by the plaintiff shows that, since this property was alienated as private property, there is no evidence indicating that the owner(s), whether present or past, were required to seek permission from the 1st defendant or the responsible Cabinet Secretary to undertake any use, development, or improvement. Conversely, the consents obtained were standard approvals from other relevant agencies, as demonstrated by the plaintiff's request for approval to install a wall around the property. 10. Whether the defendants unlawfully trespassed on the suit property and carried out demolitions without proper procedure – evidence on record points to an invasion of the suit property by the defendants themselves and/or their agents to bring down the wall the plaintiff was building. This was allegedly captured on national television, despite subsisting Court orders. The invasion was an illegal trespass. I will address the issue of trespass in the subsequent discussion. 11. Regarding whether the plaintiff is entitled to the orders sought in the plaint, I reckon that since the plaintiff has proved the suit property to be private, he will be entitled to a raft of orders as will be shown below. 12. On a declaration that the suit property, known as Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situated at Mtwapa within the County of Kilifi, is private land registered in the name of and owned by the plaintiff, Adil Salim Awadh. The evidence on record affirms that the plaintiff has shown that the suit property is private property, with a status dating back to 1922 to date, and that no legal process has been adduced to establish it as protected or public heritage site as the gazette Notices produced refer to adjacent plots. 13. On a declaration that there exists a public access road passing between the boundaries of the suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi. Land Plot Number MN/II|/944, extending all the way down to the beach near the Mtwapa Creek, for use by the plaintiff and other members of the public as access to the said beach near the Mtwapa Creek. Whereas the evidence in the survey report indicates the existence of such an access road, it has been shown that there is litigation on this subject involving the adjacent plots in **Mombasa ELC No. 4 of 2007; Sergio Lieman v National Museums of Kenya**. A look at the litigation history of this matter shows a protracted trial over an access road that involves private properties in this area. This Court will not create another layer of litigation and convolution. While the plaintiff is not a party to that suit(s), joinder or separate litigation in the near future may be appropriate regarding that issue. I decline to grant this order. 14. On a declaration that the plaintiff is entitled to use and enjoy the public access road passing between the boundaries of the suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi. Land Plot Number MN/III/944, for access to the beach via that road, I decline to issue any orders on this head for the reasons provided in paragraph 95 above. 15. On a declaration that the 1st defendant, National Museums of Kenya, has no estate, right of ownership, possession, and/or title in the said public access road passing between the boundaries of the suit property, Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi, and Land Plot Number MN/III/944, and/or any right that could preclude or contravene the rights of the public, including the plaintiff, to use and enjoy the said public access road for access to the beach near the Mtwapa Creek, or at all. I decline to issue any orders on this head for the reasons provided in paragraph 95 above. 16. 4. an Order restraining the defendants, themselves, their servants, and/or agents from interfering with, obstructing, or in any manner whatsoever hindering the plaintiff's free use of the aforesaid public access road passing between the boundaries of the Suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi, and Land Plot Number MN/III/944 to the beach near the Mtwapa Creek, or at all. I decline to issue any orders concerning this head for the reasons provided in paragraph 95 above. 17. On a permanent order of injunction, be issued restraining the defendants, either by themselves or through their servants, agents, and/or persons working under their instruction, permission, and/or direction, from trespassing onto the suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi, and Land Plot Number MN/I|I/944, from demolishing the perimeter boundary wall constructed thereon, and from interfering with the plaintiff's rights to peaceful, quiet possession, control, ownership, and occupation of the said Suit property. I grant this order because the plaintiff has established that this is private property since 1922, and the 1st defendant has not undertaken any legal procedure to bring it under its purview, as has been done with other adjacent plots through proper legal procedure or a Gazette Notice. 18. On an order for a mandatory injunction directing the 1st defendant, National Museums of Kenya, and the 4th defendant, County Government of Kilifi, to open and make accessible the public access road passing between the boundaries of the suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi, and Land Plot Number MN/III/944, for the free use of the plaintiff and the public, I decline to issue any orders on this head for the reasons provided in paragraph 95 above. 19. As an alternative to prayer (g) hereinabove, the plaintiff be granted liberty, at his own cost, to make forthwith accessible the public access road passing between the boundaries of the suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi, and Land Plot Number MN/III/944, for use by the public, including the plaintiff, to access the beach near the Mtwapa Creek. I decline to issue any orders concerning this head for the reasons provided in paragraph 95 above. 20. On an Order directing the 4th defendant to forthwith evict and demolish the illegal structures, such as bandas, constructed along the perimeter boundary wall of the Suit property, Land Plot Number 318, Section I, Mainland North, registered as Land Title Number C.R. 8741. I decline to issue any orders on this head because the parties who may have placed those structures need to be sued separately and evicted lawfully, either through the procedure provided under Section 152E of the Land Act, 2012, as enacted in the Land Laws (Amendment) Act, 2016, concerning the eviction of persons occupying private properties illegally. 21. As an alternative to prayer (i), the plaintiff is at liberty to evict and demolish, at the cost of the 4th defendant, the illegal structures, such as bandas, constructed along the perimeter boundary wall of the Suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741. Declined as stated in paragraph 102 above. 22. On revisiting the issue of trespass, there is evidence that the defendants themselves descended onto the suit property and brought down the wall established by the plaintiff. The episode was captured on national television. Trespass is actionable *per se*. The plaintiff did not present evidence identifying the individuals involved or the quantum of damages he sought. The identities of the individuals involved were not clearly established, as the plaintiff testified that the defendants were captured on national television with goons and failed to identify who these persons were or the television expose. 23. As to costs, the plaintiff will recover the costs of the suit from the defendants jointly and severally. 24. In view of the foregoing, the counterclaim will be dismissed with costs. 25. In summary, judgment is entered for the plaintiff in the following terms: 26. **A declaration is hereby made that the suit property, known as Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situated at Mtwapa within the County of Kilifi, is private land registered in the name of and owned by the plaintiff, Adil Salim Awadh.** 27. **A permanent Order of injunction is hereby issued, restraining the defendants, either by themselves or through their servants, agents, and/or persons working under their instruction, permission, and/or direction, from trespassing onto the suit property, Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situate at Mtwapa within the County of Kilifi, and Land Plot Number MN/I|I/944, from demolishing the perimeter boundary wall constructed thereon, and from interfering with the plaintiff's rights to peaceful, quiet possession, control, ownership, and occupation of the said suit property without first bringing it under the armpit and control of the 1st defendant as established by law.** 28. **The plaintiff will be entitled to the costs of this suit.** 29. **The counterclaim is dismissed with costs.** **Dated, signed, and delivered virtually at Nyeri on this 1st day of July 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr. Omondi for the Plaintiff** **Ms. Abwao for the 4th Defendant** **Denis - Court Assistant** **In the absence of:** **Mr. Munga for the 1st Defendant**