https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3307

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC CASE NO. E087 OF 2025 (OS)** **IN THE MATTER OF: APPLICATION TO BE REGISTERED AS OWNERS OF PORTIONS OF LAND BY ADVERSE POSSESSION ON PLOT NO. 16807/1/MN (CR. 47008)** **BETWEEN** **KAHINDI KALUME CHARO** **BONIFACE MUTUA MWIU** **SAMMY MAITHYA MUSII** **JUSTUS MUTISO MUSOMBA** **PAUL MUTISYA** **DANIEL MBUKI** **AGATHA ADHIAMBO** **IKOMBE OKUMU** **RASHID SALIM** **TINNAH ISMAIL ……………………………………...…. PLAINTIFFS** **VERSUS** **SHABBIR MOHAMEDALO EBRAHIM ……. 1ST RESPONDENTS** **COUNTY GOVERNMENT OF MOMBASA .. 2ND RESPONDENTS** **RULING** 1. By the Notice of Motion dated 30th July 2025, the ten (10) Applicants pray for the following: 2. **Spent;** 3. **Spent;** 4. **An injunction be issued restraining the Defendants by themselves and/or their servants or/and or agents from evicting or in any other manner whatsoever from interfering with the Applicant’s occupation of** **Plot No.16807/1/MN (CR.47008) situate at Kongowea, Mombasa pending the hearing and determination of this suit;** 5. **That in the alternative the status quo obtaining as at today (30/7/2025) be maintained pending the hearing and determination of this suit; and** 6. **Costs of this Application be provided for.** 7. The application is supported by an Affidavit sworn by Kahindi Kalume Charo (the 1st Applicant) and is premised on the grounds inter alia that: 8. **The Applicants have continuously and uninterruptedly occupied and developed the suit premises for more than 12 years;** 9. **The Applicants have therefore become entitled by adverse possession to the portions of land occupied by them; and** 10. **The 2nd Respondent has unlawfully issued notices of eviction of the Applicants from the suit premises and they may be evicted at any time now.** 11. Shabir Mohamedali Ebrahim (the 1st Respondent) is opposed to the application. In his Replying Affidavit sworn on 12th September 2025, the 1st Respondent avers that the application is frivolous, vexatious and an abuse of the Court process. 12. The 1st Respondent avers that he is the registered proprietor of all that parcel of land measuring 0.0527 Ha being Plot No. 16807 (original number 3368/94) Section 1 Mainland North, Mombasa. It is his case that since he was registered as the proprietor in the year 2009, the land has been vacant until recently when someone brought a container and made compartments to create shops therein. 13. The 1st Respondent further avers that he reported to the County Government of Mombasa (the 2nd Respondent) about the illegal constructions being undertaken on his property and asserts that the Applicants are lying as regards the period of time they have occupied the land and on the sizes of the portions they claim to occupy. 14. The County Government of Mombasa (the 2nd Respondent) is equally opposed to the application. By their Grounds of Opposition dated 9th September 2025, the 2nd Respondent objects to the same on the grounds that: 15. **This Honourable Court lacks primary jurisdiction to entertain, hear and determine the Plaintiffs/ Applicants application for reason that it offends the doctrine of exhaustion;** 16. **Section 72 (3) of the Physical and Land Use Planning Act, 2019** **lays out the statutory mechanism for challenging enforcement notices requiring that any grievances relating to enforcement notices must be appealed to the County Physical and Land Use Planning Liaison Committee; and** 17. **The Plaintiffs/Applicants Application dated 30th July 2025 as filed herein is incompetent and fatally defective for want of compliance with the mandatory provisions of Section 72 (3) of the Physical and Land Use Planning Act, 2019 and is therefore bad in law, an abuse of court process and ought to be dismissed with costs to the 2nd Defendant.”** 18. I have carefully perused and considered both the application as well as the responses thereto. I have similarly perused and considered the submissions placed before the Court by the Learned Advocates representing the parties. 19. By their Notice of Motion dated 30th July 2025, the 10 Applicants prays for orders of injunction to issue restraining the Defendants from evicting them and/or interfering with their occupation of Plot No. 16807/I/MN situated at Kongowea in Mombasa pending the hearing and determination of the suit. In the alternative, the Applicants pray for an order that the status quo be maintained pending the hearing and determination of the suit. 20. According to the Applicants, they have been in occupation of their respective portions of the land and have developed the same for more than 12 years. It is the Applicants’ case that given their period of uninterrupted occupation, the registered proprietor’s right to the land has been extinguished and they have since acquired the land under the doctrine of adverse possession. 21. The Respondents have opposed the application. According to the 1st Respondent, he is the registered proprietor of the suit property. It is his case that he became registered as the proprietor of the land which was vacant in the year 2009. It is further his case that the Appellants have only trespassed into his parcel of land recently taking advantage of the fact that the 1st Respondent is mainly based in Nairobi. 22. On its part, the 2nd Respondent filed Grounds of Opposition in which it asserts that this Court lacks jurisdiction to hear and determine the matter as the Appellants had failed to comply with Section 72(3) of the Physical and Land Use Planning Act, 2019 which requires that any grievances relating to enforcement notices must first be appealed to its Physical and Land Use Planning Liason Committee before being taken to Court. 23. It was however my considered view that the objection as to the jurisdiction of this Court by the 2nd Respondent was rather misplaced. While it was indeed true that the notices issued by the 2nd Respondent was part of the reason the Applicants filed this Originating Summons and joined the 2nd Respondent as a party, it was obvious to me that the Applicants’ beef is with the 1st Respondent whose land they claim to have acquired by way of adverse possession. 24. The Applicants have in actual fact approached this Court seeking to be declared the owners of the suit property by virtue of adverse possession. That is a matter that cannot be dealt with by the 2nd Respondent’s Physical and Land Use Planning Lisason Committee. It is this Court which is clothed with jurisdiction to hear and determine such a claim under the Limitation of Actions Act, Cap 22 of the Laws of Kenya. 25. In respect of temporary injunctions, Order 40 Rule 1 of the Civil Procedure Rules provides as follows: **“(1). Where in any suit it is proved by affidavit or otherwise-** 1. **That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or** 2. **That the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”** 3. The conditions for the grant of an interlocutory injunction were set out in the in the celebrated case of ***Giella –vs- Cassman Brown (1973) EA 358,*** where it was held that: **“…. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”** 1. In the case of ***Mrao –vs- First American Bank of Kenya Limited & 2 Others (2003) KLR 125,*** the Court of Appeal defined a prima facie case as follows: **“…. a prima facie case in a Civil Application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”** 1. In the matter herein, the Applicants claim to have been in occupation of the suit property for periods ranging from 15 to 35 years. They have exhibited photographs of shops and kiosks as evidence of their occupation of the suit property. While the 1st Respondent who is the registered proprietor of the land disputes the claim by the Applicants that they have been on the land for so long, he admits that the Applicants are on the land and have built some structures thereon. In my considered view the issue of how long the Applicants have been on the suit property can only be tested by the rules of evidence in a full trial. Otherwise I am persuaded that the Applicants have established a prima facie case with a probability of success at the trial. 2. In regard to the second principle to be considered, the Court of Appeal in the case of ***Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR*** held as follows: **“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima facie, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which the amount can be measured with reasonable accuracy or the injury or harm is of such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”** 1. In the instant matter, the Applicants face the risk of eviction from a parcel of land which they claim to have occupied for a long period of time. In the circumstances herein I am persuaded that the balance of convenience tilts in favour of the Applicants as it is clear that if an injunction is not granted and the suit is ultimately decided in their favour, the inconvenience caused to the Applicants would be greater than that which would be caused to the Respondents if the injunction is granted but the suit is ultimately dismissed. 2. Accordingly, I am persuaded that there is merit in the Motion dated 30th July 2025. I allow the same in terms of prayer No. (c) thereof. 3. The Costs of the application shall be in the cause. **Ruling dated, signed and delivered in open court and virtually at Mombasa this 26th day of May, 2026.** **…………………………….** **J.O. OLOLA** **JUDGE** In the presence of: 1. Mr. Leakey Court Assistant. 2. Mr. Mutisya Advocate for the Plaintiffs 3. Mr. Kenzi Advocate for the 1st Respondent 4. Ms. Muema Advocate for the 2nd Respondent