https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3936

**REPUBLIC OF KENYA** **IN THE ENVIRONMENTAL AND LAND COURT** **AT KWALE** **ELC NO. E033 OF 2025** **CHURCH COMMISSIONERS FOR KENYA** **SAMUEL SAWA MANENO T/A KWALE TUMAINI ACADEMY** **SALOME KUVUNA MANENO** **T/A KWALE TUMAINI ACADEMY…………….PLAINTIFFS/APPLICANTS** * **VERSUS –** **ISAAC ZUNGU** **LILY WALE** **JUDITH SHIKARI** **MOHAMED MWATSEFU** **PATRICK NDAMBUKI** **JUNE DISI** **CHARI MDZELE** **MALEMBI MBOVU** **VERONICA MUTHUI** **SALIM ABDALLA** **EZEKIEL MBATA** **SAID DISI** **CHARI DENA** **JULIUS KIMATHI** **ATHMAN NATEMBEA** **SHABAN OGANDA** **DICKSON MUSYOKI** **RAMA MWAMRASHI** **WANGARA KUNGU** **ISMAEL CHARO** **BETI MWAMDAO** **HAMISI DZAMBO** **JUMA OMAR** **NIGANDA OMAR** **ALI KARISA** **ALI ZANI** **MOHAMED MWATSEVU** **MWADIME** **KHAISIVIFU** **ELIUD TSUA** **NANCY OMAZI** **CORNELIUS SHIKARI** **MWALIMU** **SUDI KHAMISI** **KASSIM OMAR MWAJAMBO** **MARIAM SUDI** **ALOICE MUSYOKA.…………..…………………….……………..DEFENDANTS** **RULING** 1. **Introduction** 2. This Honourable Court was called upon to determine the Notice of Motion application dated 25th March, 2025 by *Church Commissioners for Kenya, Samuel Sawa Maneno t/a Kwale Tumaini Academy*, and *Salome Kuvuna Maneno t/a Kwale Tumaini Academy*, the Plaintiffs/Applicants herein. The Application was brought under the provisions of Article 40 of the Constitution, Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, Sections 1A,1B & 3A of the Civil Procedure Act, Cap. 21 and all the enabling provisions of the law. 3. Upon service of the Application to the Defendants/Respondents, there were no responses filed as at the time of writing this ruling. 4. **The Plaintiffs/Applicants’ case** 5. The Applicants sought for the following orders: - 6. ***Spent.*** 7. ***Spent.*** 8. ***Pending the hearing and determination of this suit, the Court be pleased to issue an Interim Conservatory Orders/Injunction restraining the Defendants, their servants, agents from entering into, building perimeter walls, dwelling houses and structures, occupying, felling trees, clearing vegetation, planting crops, charging, selling, disposing of and/or in any other manner whatsoever interfering with possession and title of Plot No.L.R.5007/1-C.R.No.8280.*** 9. ***That the Officer in Charge (OCS) Kwale Police Station and the OCPD Officer Commanding Police Division (OCPD) enforce the restraining injunction*** 10. ***Costs of the application.*** 11. The application by the Applicant was premised on the grounds, facts and testimony on the face of the application and further supported by the 24 paragraphed annexed affidavit of FESTUS KISEU, the Registrar of the 1st Plaintiff herein averred that:- 12. He was well familiar with the facts that gave rise to the application and that he swore the affidavit in support of the application. 13. The 1st Plaintiff was the registered and bona fide proprietor of the suit property known as Plot Number L.R. NO. 5007/1 Kwale. Annexed and marked as “*CCK – 1”* was a copy of the Title. 14. As the registered owner of the suit property, the Plaintiffs were entitled to protection of their proprietary rights under the provision of Article 40 of the Constitution. 15. The 1st Plaintiff had leased part of the suit property measuring 6 acres to Samuel Sawa Maneno and Salome Kuvuna Maneno for a period of 30 years from 1st January, 2000 where they operated a private school called Kwale Tumaini Academy. Annexed and marked as “CCK – 2” was a copy of the Certificate of Postal Search conducted on 8th July, 2024. 16. The Defendants had trespassed into the suit land and were conducting illegal activities therein that were causing irreparable damage to the land. 17. The Defendants’ acts of trespass and illegal activities in the suit land included: 18. Constructing dwelling houses and other structures without any permission or lawful authority from the Plaintiffs. 19. Cutting down valuable indigenous trees and destroying other natural vegetation. 20. Cultivating and tilling the land. 21. Fencing parts of the land and denying the Plaintiffs access thereto. 22. Defrauding members of the public by purporting to sell portions of the suit property to unsuspecting members of the public whilst knowing they had no capacity or right to sell any part of the land. 23. Using force and threats of force in attempts to dispossess the Plaintiffs, their agents, servants, and representatives from entering into parts of the suit property. Annexed and marked as “CCK – 3” were photographs of the Defendants’ illegal activities in the suit property. 24. The Defendants did not have any lawful justification for entering into the suit property, building perimeter walls, dwelling houses and structures, occupying, cutting down indigenous trees, clearing natural vegetation, planting crops, charging, selling, disposing of, and/or in any other manner whatsoever interfering with the land. 25. In February, 2024, there was a meeting attended by representatives of the Plaintiffs and some Defendants at Kwale Tumaini Academy where the 6th Defendant, 12th Defendant, and their siblings Athman Disi and Isaka Disi were informed that the suit land belonged to the Plaintiff and were told to vacate the land and stop purporting to sell to unsuspecting members of the public, but they continued to do so. 26. unless forthwith restrained by Interim Conservatory Orders/Injunction, the Defendants would permanently change the status quo to the detriment of the Plaintiffs by entering into, occupying, building permanent houses, using force and threats of force to evict the Plaintiffs and prevent re-entry into the land, thereby making it impossible for the Court to enforce any decree which might ultimately be given. 27. Consequently, unless the Court intervened at the earliest, Court Bailiffs, contempt proceedings, police, and other law enforcement officers might later be unable to enforce court orders or restore to the Plaintiffs their constitutionally protected right to private property in the suit property. 28. He knew of his own knowledge of other instances, especially in the Coast region, where trespassers had invaded private property and afterwards claimed rights over the same, and that the Defendants in this case were following a similar pattern to defeat the Plaintiffs’ proprietary rights. 29. He invited the Honourable Court to take judicial notice of the Waitaki Farm in Likoni, Mombasa, which was irreversibly occupied and built on despite court orders and decrees for vacant possession. 30. As at 25th March, 2025, the status quo prevailing on the suit property was that the Defendants had illegally gained possession, cut down indigenous trees, destroyed natural vegetation, fenced off portions, constructed dwelling places and other structures, tilled and cultivated some portions of the land, and purported to sell portions of the land. 31. The Defendants from time to time used force and/or threats of force to enter into, build perimeter walls, dwelling houses and other structures, occupy, cut down indigenous trees, clear natural vegetation, plant crops, and carry out other illegal activities on the suit property. 32. He was informed by the 1st and 2nd Plaintiffs that the Defendants were also cutting down trees within the school compound and causing anxiety and distress to school-going children by interrupting learning activities. 33. The Defendants’ activities in the suit land were causing a nuisance, inconveniencing school-going children, and interrupting learning activities at the 1st and 2nd Plaintiffs’ school, Kwale Tumaini Academy. 34. The aforesaid actions of the Defendants amounted to criminal offences of criminal trespass under the provision of Section 5 of the Trespass Act, malicious damage to property under Section 339, forcible detainer under the provision of Section 91, and obtaining by false pretenses under Section 339 of the Penal Code. 35. The Plaintiffs had attempted to resolve the dispute using administrative processes and alternative dispute resolution mechanisms, including reporting the matter at Kwale Police Station, but the Defendants remained defiant and had been incited by politicians to continue with their illegal actions. 36. The administrative processes had not worked as the Police declined to assist unless there was a Court order authorizing police intervention. 37. Therefore, the Plaintiffs were in need of a Court order directing the OCS Kwale Police Station to enforce such restraining orders as the Court might issue. 38. The balance of convenience was in favour of restraining the Defendants from entering, occupying, remaining on, building on, destroying vegetation, selling, leasing, or otherwise interfering with the suit property. 39. The Defendants would not suffer any damage if Interim Conservatory Orders/Injunction were issued. 40. All that was stated herein was true to the best of his knowledge, information, and belief. 41. **Submissions** 42. On 26th February, 2026 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 25th March, 2025 be disposed of by way of written submissions and all the parties complied. 43. Pursuant to that none of the parties obliged and a ruling date was reserved on 18th June, 2026 by the Honourable Court accordingly. 44. **Analysis and Determination** 45. I have carefully read and considered the pleadings herein, the affidavits filed, and the relevant statutory provisions and authorities cited by the parties. In order to arrive at an informed decision, the Honourable Court has framed the following three (3) issues for determination:- 46. ***Whether the Notice of Motion application dated 25th March, 2025 meets the threshold required for the grant of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010.*** 47. ***Whether the Plaintiffs/Applicants have demonstrated sufficient grounds to warrant police enforcement of any restraining orders issued by this Court.*** 48. ***Who will bear the costs of the Notice of Motion application dated 25th March, 2025.*** ***ISSUE No. a). Whether the Notice of Motion application dated 25th March, 2025 meets the threshold required for the grant of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010.*** 1. Under this sub – title, the main issue here is whether the Plaintiff is entitled to be granted the relief of an interlocutory injunction. The application herein is premised under the provision of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law. Which provides as follows: - **Order 40, Rule 1** **Where in any suit it is proved by affidavit or otherwise—** **a) 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** **b) 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.** 1. Fundamentally, the principles applicable in an application for an injunction were laid out in the celebrated case of ***“Giella – Versus - Cassman Brown & Co Limited (1973) EA 358”***, where it was stated: - ***“First an applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”*** 1. The three conditions set out in ***“Giella (supra)”***, need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of ***“Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR”***: -, ***“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”.*** 1. In dealing with the first condition of prima facie case, the Honorable Court guided by the definition melted down in the famous case “***MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) KLR 125”*** of: -, ***“So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would 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. As the Court previously observed in this ruling, the Plaintiffs annexed a title deed and certificate of postal search confirming ownership of L.R. No. 5007/1 – C.R. 8280, Kwale Township. They also produced photographs showing illegal construction, felling of indigenous trees, fencing, cultivation, and purported fraudulent sales. In the case of ***“Mbuthia – Versus - Jimba credit Corporation Ltd 988 KLR 1”***, the court held that:- ***“In an application for interlocutory injunctions, the court is not required to make final findings of contested facts and law and the court should only weigh the relative strength of the party’s cases.”*** 1. Similarly, in the case of ***“Edwin Kamau Muniu – Versus - Barclays Bank of Kenya Limited”***the court held that; ***“In an interlocutory application to determine the very issues which will be canvassed at the trial with finality All the court is entitled at this stage is whether the applicant is entitled to an injunction sought on the usual criteria.”*** 1. In the present case, the Plaintiffs have produced a title this evidence establishes a prima facie case since the Plaintiffs’ proprietary rights have apparently been infringed, warranting explanation or rebuttal from the Defendants. Regarding this first condition though, the Plaintiffs have demonstrated a *prima facie* case with a probability of success at the trial as enunciated in the case of ***“Giella -Versus - Cassman Brown & Co. Ltd (Supra)”***. 2. The court has further considered the annextures on record against the second principle for the grant of an injunction, that is, whether the Plaintiff might suffer irreparable injury which cannot be adequately compensated by an award of monetary damages. With regards to the second limb of the Court of Appeal in ***“Nguruman Limited (Supra)”*,** held that:- ***“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 face, 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 their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”*** 1. On the issue whether the Applicant will suffer irreparable harm which cannot be adequately compensated by an award of damages, the Applicant must demonstrate that it is a harm that cannot be quantified in monetary terms or cannot be cured. It is not hidden that the Applicants’ property is under risk being that there has been destruction of indigenous trees, interference with learning activities and fraudulent alienation of land cannot be adequately compensated by damages. The judicial decision of ***“Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (2018) eKLR”*** provides an explanation for what is meant by irreparable injury and it states:- ***“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.”*** 1. Quite clearly, the Plaintiffs demonstrated that unless restrained, the Defendants’ actions would permanently alter the land, disrupt school operations at Kwale Tumaini Academy, and render any eventual decree nugatory. The Applicants have therefore satisfied the second condition as laid down in ***“Giella’s case”***. 2. Thirdly, the Applicant has to demonstrate that the balance of convenience tilts in his favour. In the case of ***“Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (Supra)”*** which defined the concept of balance of convenience as: ***“The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer.*** ***In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”.*** 1. In the case of ***“Paul Gitonga Wanjau – Versus - Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR”***, the court dealing with the issue of balance of convenience expressed itself thus:- ***“Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.”*** 1. The balance of convenience tilts in favour of the Plaintiffs. They are the registered proprietors, while the Defendants have not shown any lawful claim or justification for their occupation of the suit property before the suit herein is heard and determined on merit. The decision of ***“Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR”*** where the learned judge offered further elaboration on what is meant by “balance of convenience” and stated; - ***“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”*** 1. The balance of convenience lies with the Plaintiffs in this case. Bearing this in mind, I am convinced that there is a lower risk in granting orders of temporary injunction than not granting him, as I wait to hear the suit on its merits. This is especially so because I have not had the opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the claim of the Applicants and it will be in the interest of both the Applicants and the Respondents that the suit property is preserved until the hearing and determination of the suit. 2. In the case of ***“Robert Mugo wa Karanja – Versus - Ecobank (Kenya) Limited & Another [2019) eKLR”*** where the court in deciding on an injunction application stated; ***“circumstances for consideration before granting a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...”*** 1. I am convinced that if orders of temporary injunction are not granted in this suit, the property in dispute might be in danger of being dealt in the manner set out in the application and apprehended by the Plaintiffs/Applicants.In view of the foregoing, I strongly find that the Plaintiffs have met the criteria for grant of orders of temporary injunction. ***ISSUE No. b). Whether the Plaintiffs/Applicants have demonstrated sufficient grounds to warrant police enforcement of any restraining orders issued by this Court*** 1. Under this Sub ‑ title, the Honourable Court shall examine whether the circumstances presented justify the involvement of law enforcement officers, specifically the Officer Commanding Station (OCS) Kwale Police Station and the Officer Commanding Police Division (OCPD Kwale), in enforcing any restraining orders that may be issued. The Plaintiffs/Applicants have demonstrated through affidavits and annexures that they are the registered proprietors of L.R. No. 5007/1 – C.R. 8280, Kwale Township, and that the Defendants have trespassed onto the land, constructed structures, felled indigenous trees, fenced off portions, cultivated, and fraudulently purported to sell parts of the property. These acts are not only civil trespass but also amount to criminal offences under the Penal Code and the Trespass Act, thereby heightening the need for immediate enforcement. 2. The Affiant in the Plaintiffs’ supporting affidavit deponed that attempts to resolve the matter administratively and through alternative dispute resolution mechanisms were unsuccessful. The Plaintiffs reported the matter to Kwale Police Station, but the police declined to intervene absent a court order. This establishes that ordinary administrative remedies have been exhausted and that judicial authorization is necessary for enforcement. The refusal by police to act without a court order underscores the importance of judicial sanction in ensuring compliance. 3. The Court takes judicial notice of the fact that in land disputes of this nature, especially in the coastal region, trespassers often resist compliance with civil decrees, sometimes resorting to force or political incitement. The Plaintiffs have specifically alleged that the Defendants have used threats of force and disrupted school operations at Kwale Tumaini Academy, thereby endangering children and undermining public order. Such circumstances elevate the dispute beyond a mere civil contest into one that implicates public safety and the welfare of minors. 4. In case of:-***“Giella – Versus - Cassman Brown (Supra)”***, the Court emphasized that interim relief must preserve the status quo and prevent irreparable harm. Where the substratum of the suit is at risk of destruction, the Court may enlist police assistance to ensure compliance with its orders. The jurisprudence recognizes that injunctive relief without enforcement mechanisms may be rendered illusory. 5. The jurisprudence in the case of:- ***“Shimmers Plaza Limited – Versus - National Bank of Kenya Ltd [2015] eKLR”*** and ***“Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR”*** reinforces that courts should opt for the lower risk of injustice. In this case, the risk of injustice is higher if restraining orders are issued but remain unenforced, thereby rendering the Court’s decree nugatory. The Court must therefore ensure that its orders are not only pronounced but are capable of practical implementation. 6. Accordingly, it is this Court’s finding that the Plaintiffs have therefore demonstrated sufficient grounds to warrant police enforcement. The intervention of the OCS and OCPD Kwale is necessary to give effect to the Court’s orders, prevent further trespass, safeguard the Plaintiffs’ proprietary rights under the provision Article 40 of the Constitution, and maintain public order. Police involvement is not punitive but protective, ensuring that the rule of law is upheld and that the authority of the Court is respected. ***ISSUE No. c). Who will bear the costs of the Notice of Motion application dated 25th March, 2025.*** 1. Under this sub‑title, the Honourable Court shall examine the question of costs arising from the Notice of Motion application dated 25th March, 2025. It is now well established that the issue of Costs is at the discretion of the Court. 2. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Act, Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of ***“Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR*** and ***“Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR***, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. 3. I have well stated in previous precedence and most especially in ***“Sagalla Lodge Limited – Versus - Samwuel Mazera Mwamunga & another (Suing as the Executors of Eliud Timothy Mwamunga – Deceased) [2022] eKLR”***, that: ***“58. The Black Law Dictionary defines “Cost” to means, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.*** ***The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. The issue of Costs is the discretion of Courts. From this provision of the law, it means the whole circumstances and the results of the case where a party has won the case. The events in this case is that the Notice of Motion application dated 7th December, 2021 by the Plaintiff has succeeded and hence they are entitled to costs of the application and that of the Defendants dated 21st December, 2021.”*** 1. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. In the case of ***“Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR***, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. In the present matter, the Notice of Motion application dated 25th March, 2025 has succeeded on merit, as the Plaintiffs/Applicants have demonstrated ownership of the suit property and established grounds for injunctive relief. However, given that the application is interlocutory in nature and the substantive suit is yet to be heard and determined, it is prudent that costs be reserved to abide the outcome of the main suit. 2. The Court is guided by the principle that interlocutory applications often form part of the broader litigation process, and awarding costs at this stage may prejudice the fair determination of the substantive issues. Reserving costs ensures that the successful party at the conclusion of the suit is appropriately compensated. 3. Accordingly, the Honourable Court finds that the costs of the Notice of Motion application dated 25th March, 2025 shall be in the cause. 4. **Conclusion and Disposition** 5. In long analysis, the Honourable Court has carefully considered and weighed the conflicting parties’ interests as regards the balance of convenience. Clearly, the Plaintiffs/Applicants have established a case against the Defendants/Respondents and demonstrated sufficient grounds for the preservation of the suit property. 6. Having said that much, there will be need to preserve the suit land in the meantime so as not to render the main suit nugatory. In a nutshell, I proceed to order the following:- 7. **THAT the Notice of Motion application dated 25th March, 2025 be and is hereby found to have merit and thus allowed with costs in the cause.** 8. **THAT an order of temporary injunction do issue restraining the Defendants/Respondents, their agents, servants, and/or any other persons acting under their authority from entering into, occupying, constructing, felling trees, cultivating, fencing, selling, leasing, disposing of, or in any other manner whatsoever interfering with Plot No. L.R. 5007/1 – C.R. 8280, Kwale Township, pending the hearing and determination of this suit.** 9. **THAT the Officer Commanding Station (OCS) Kwale Police Station and the Officer Commanding Police Division (OCPD Kwale) shall enforce compliance with the restraining orders herein.** 10. **THAT for expediency sake, there be a mention on 21st July, 2026 for conducting a Pre – Trial Conference pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010 before ELC No. 2. There shall be further direction on the hearing of the matter preferably through physical means before ELC No. 2 Kwale.** 11. **THAT the Honourable Court do encourages the parties to fully explore the out of Court negotiation which was in tandem with the Alternative Judicial System (AJS) and the Social Transformation through Access to Justice (STAJ) judiciary policies and which are pursuant to the provision of Article 159 ( 2 ) of the Constitution of Kenya, 2010 and Section 20 ( 1 ) & ( 2 ) of the Environment & Land Court, No. 19 of 2011.** 12. **THAT the costs of the Notice of Motion application dated 25th March, 2025 shall be in the cause.** **IT IS SO ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT KWALE THIS ……18TH .……DAY OF ………JUNE.……..2026.** **…………………………………….** **HON. MR. JUSTICE L. L. NAIKUNI** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of:** a). Mr. Daniel Disii, the Court Assistant. b). Mr. Mwai Advocate for the Plaintiffs/Applicants. c). M/s. Kimani Advocate for the Defendants.