Mboja v Masale & another (Enviromental and Land Originating Summons E017 of 2026) [2026] KEELC 4729 (KLR) (23 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MOMBASA** **ELC LOS NO. E017 OF 2026** IN THE MATTER OF THE LIMITATION OF ACTIONS ACT, CAP 22 LAWS OF KENYA AND **IN THE MATTER OF:** THE REGISTERED LAND KNOWN AS LR NO. MN/III/1271 – MOMBASA MAINLAND NORTH MEASURING 1.917 HECTARES, ALLOCATED BY THE GOVERNMENT AT FILE 115673, FOLIO 3, UPON PAYMENT OF THE REQUISITE FEES AT FOLIO 589, 1990 AND ADVERSE POSSESSION **BETWEEN** **DAVID MENZA MBOJA** **APPLICANT** =VERSUS= **ELIAKIM MILTON MASALE** **1ST RESPONDENT** **THE CHIEF LAND REGISTRAR** **2ND RESPONDENT** **RULING** **A. INTRODUCTION** **1.** Land, in this part of our Republic, is never merely a plot upon a map. It is home, harvest and heritage all at once — the ground upon which a family builds its dwelling, sows its maize and its coconut, and buries its dead. Yet it is also a creature of paper: of titles, folios and registers kept in the custody of the State. When the man in occupation and the man on the title fall out, the law is summoned to hold the ring. But before the law can hold the ring, it must first be satisfied that both contestants have been called into it. That, as shall appear, is the knot at the heart of this application. **2.** Before me is the Applicant’s Notice of Motion dated **2nd June 2026**, brought under **sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap 21**; **Order 40 rules 1, 2 and 4 of the Civil Procedure Rules, 2010**; **sections 13 and 17 of the Environment and Land Court Act, No. 19 of 2011**; and **Article 159(2)(b) of the Constitution**. The Applicant, **David Menza Mboja**, seeks a temporary injunction restraining the 1st Respondent, **Eliakim Milton Masale**, whether by himself, his agents or any person claiming under him, from alienating, transferring, charging, mortgaging, leasing, subdividing or otherwise dealing with the suit land **LR No. MN/III/1271** – Mombasa Mainland North (*the suit property*); a like order restraining the 2nd Respondent, the **Chief Land Registrar**, from registering or giving effect to any dealing in the said parcel; and costs. **B. THE APPLICANT’S CASE** **3.** The application is founded upon the grounds on its face and the supporting affidavit of **David Menza Mboja** sworn on **2nd June 2026**. The Applicant deposes that he has been in open, continuous, exclusive, peaceful and uninterrupted possession of the suit property for a period exceeding **seventeen (17) years**, since the year **2009**. In that time, he says, he has cultivated maize, vegetables and coconut trees, erected a permanent dwelling house, and maintained the fencing along the boundaries to prevent encroachment. He annexes photographs marked ‘DMM-1’. **4.** He deposes further that from **2009** to date neither the 1st Respondent nor any other person has visited the suit land, asserted any claim, or exercised any act of ownership, so that the 1st Respondent’s title stands extinguished by operation of law under section 17 of the Limitation of Actions Act. He apprehends that, upon learning of the suit, the 1st Respondent may hasten to alienate, transfer, charge or otherwise dispose of the land to an innocent purchaser for value, whose overriding interest would defeat the claim and render any judgment of this Court a mere ornament. The land, he says, is his only home and source of livelihood; its loss would visit upon him an injury that no award of damages could repair, while the 1st Respondent — long absent — would suffer no prejudice, so that the balance of convenience favours the grant. **C. THE RESPONDENTS AND THE PROCEDURAL PATH** **5.** The application first came before this Court on **2nd June 2026** bearing a Certificate of Urgency and a prayer that it be heard ex parte, with service dispensed with. Upon considering the matter, the Court declined to certify it as urgent and declined to hear it *ex parte*. A man who has, on his own showing, occupied land undisturbed for seventeen years does not readily persuade a court that his cause has, overnight, become so pressing that his adversary must be condemned unheard. The application was accordingly set down for hearing inter partes on the **20th day of July 2026**. **6.** When the matter was called on **20th July 2026**, the record took a decisive turn. Learned counsel for the Applicant informed the Court, with commendable candour, that he had not served the 1st Respondent, **Eliakim Milton Masale**, having had difficulty tracing him. Learned counsel for the 2nd Respondent, the **Chief Land Registrar**, was present and informed the Court that the 2nd Respondent would not participate in the application but did not oppose the orders sought. The 1st Respondent, being unserved, was neither present nor represented, and has said nothing — for he has been told nothing. **D. ISSUES FOR DETERMINATION** **7.** Having read the Notice of Motion, the supporting affidavit and its annexures, and the Originating Summons which the application is designed to protect, I frame the questions for determination as three: 1. *Has the Applicant satisfied the trilogy of conditions for the grant of a temporary injunction?* 2. *What consequence, in light of the first question, flows from the failure to serve the 1st Respondent, being the registered proprietor against whom the principal relief is aimed? and* 3. *Who shall bear the costs?* **E. ANALYSIS AND DETERMINATION** ***(i) The Trilogy of Conditions*** **8.** The grant of an interlocutory injunction is governed by the trilogy of conditions first distilled in ***Giella v Cassman Brown & Co. Ltd [1973] EA 358***, and refined by the Court of Appeal in ***Nguruman Limited v Jan Bonde Nielsen & 2 Others, Civil Appeal No. 77 of 2012; [2014] eKLR***. They are three, and they are to be taken in their turn: first, a *prima facie* case with a probability of success; secondly, irreparable injury not compensable in damages; and thirdly, if the Court is in doubt upon the first two, the balance of convenience. In ***Nguruman***, the Court of Appeal was emphatic that these conditions are not to be weighed together in a single balance. First, as to their character and order, the Court held that they — *“… are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.”* **9.** Secondly, as to the discipline this imposes, the Court was categorical: *“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.”* **10.** Thirdly, as to what the first and foundational hurdle demands, the Court explained that the applicant must show: *“… a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion.”* ***(ii) First Condition: A Prima Facie Case with a Probability of Success*** **11.** The classic exposition remains ***Mrao Ltd v First American Bank of Kenya Ltd & 2 Others, Civil Appeal No. 39 of 2002; [2003] eKLR***, where the Court of Appeal held: *“In civil cases a prima facie case is a case in 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 to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial.”* **12.** The Applicant’s substantive claim is one of adverse possession under **Sections 7, 13, 17 and 38 of the Limitation of Actions Act**: that an action to recover land must be brought within **twelve years** of the accrual of the right of action, and that at the expiry of that period the title of the paper owner is extinguished. The possession relied upon must be open and notorious, exclusive, and inconsistent with the title of the true owner — possession *nec vi, nec clam, nec precario*: neither by force, nor by stealth, nor by the leave of the owner. In ***Mtana Lewa v Kahindi Ngala Mwagandi, Civil Appeal No. 56 of 2014; [2015] eKLR*** the Court of Appeal affirmed that the doctrine is neither arbitrary nor unconstitutional, precisely because the law of limitation ‘prevents land from falling into disuse’ and protects what may have been ‘acquired in equity and justice by long use and enjoyment’ — but only where the claimant follows due process, ‘including court application and service of the registered owner.’ I shall return to that last qualification, for it bears heavily on this matter. **13.** I take caution not to make any final finding, the main suit being still pending. Yet a *prima facie* case must be tested against the material actually laid before the Court, and here the material is thin. The Applicant pleads a permanent dwelling, maize, vegetables and coconut trees, and boundary fencing spanning seventeen years. But the single annexure ‘DMM-1’ discloses no more than a semi-permanent structure of iron sheets, standing amid rubble and appearing rundown and incomplete, upon an open and largely uncultivated field running down toward the sea. Of the maize, the vegetables, the coconut trees and the fencing so confidently deposed to, the photographs show nothing. On this untested but conspicuously slender record, the Applicant’s prima facie case is, at its highest, doubtful. ***(iii) Second Condition: Irreparable Injury*** **14.** The measure of irreparable injury was stated in ***Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424; [2018] eKLR*** thus: *“… the injury must be one that cannot be adequately compensated for in damages and … 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 …”* **15.** Had the Applicant’s occupation of a genuine homestead been established, the argument on this limb would carry real force — for a home, and a claim to a specific parcel long dwelt upon, are not fungible things to be reckoned in shillings, and as **Cardozo J.** reminded us, the ‘*final cause of law is the welfare of society*’. But irreparable injury is not established by apprehension alone; it must be anchored in a right shown, on the material, to exist. The photographs do not bear out the home and the cultivation upon which the whole edifice of injury rests. The apprehended harm is real in the abstract, but on this record; it hovers above the evidence rather than resting upon it. ***(iv) Third Condition: The Balance of Convenience*** **16.** The principle was expressed in ***Pius Kipchirchir Kogo (supra)***: it is in truth a balance of *inconvenience*, and the applicant must show that the mischief from withholding the injunction would be greater than that from granting it; should the inconvenience be equal, it is the applicant who must fail. Here the Applicant asks the Court to bind the hands of the registered proprietor upon a record that does not establish his own occupation, and without that proprietor having been heard at all. On the material presently before me, I am not persuaded that the inconvenience to the Applicant plainly outweighs the inconvenience to the 1st Respondent, whose title would be fettered in his absence and ignorance. ***(v) The Decisive Impediment: A Registered Owner Unheard*** **17.** Were the trilogy the whole of the matter, the doubtful state of the first condition might well be the end of the application. But there is a deeper difficulty, and it is one of principle rather than of proof. The principal relief sought is an injunction against the 1st Respondent, restraining *his* dealings with *his* registered land. Yet the 1st Respondent has not been served. He has not been told that a court has been asked to bind his hands. He has been given no chance to say whether the Applicant’s seventeen years were open and adverse, or held by his leave, by arrangement, or upon an understanding not disclosed. **18.** It is a principle older than any statute, and dearer to this Court than any convenience, that no person shall be condemned unheard. *Audi alteram partem* is not a formality to be waived when tracing an adversary proves troublesome. This concern is not peculiar to injunctions; it is woven into the very fabric of adverse possession. As ***Mtana Lewa (supra)*** teaches, what saves the doctrine from being an arbitrary confiscation of another’s title is that it proceeds only upon due process — court application and, pointedly, *service of the registered owner*. To grant a substantive injunction fettering the 1st Respondent’s title while he remains in ignorance of the proceedings would be to do the very thing this Court refused to do at the outset when it declined to hear the application *ex parte*. What was impermissible by design cannot become permissible by default. Difficulty in effecting service is a reason to perfect service by other lawful means; it is not a licence to dispense with the party altogether. Nor can the 2nd Respondent’s non-opposition, welcome as its candour is, mend this defect: the **Chief Land Registrar** cannot consent away the 1st Respondent’s right to be heard upon relief aimed squarely at his own title. ***(vi) Reconciling Preservation with Fairness*** **19.** Two imperatives must here be held in a single hand. The first is that the 1st Respondent must not be bound by an injunction before he is heard, and that the Applicant’s case, on the present record, does not in any event satisfy the trilogy. The second is that the law would be a poor servant of justice if, having recognised even a possible risk to the subject matter, it left the *res* wholly exposed merely because one party proved hard to find. An interim order is a shield, not a sword; it must never become a hammock in which an applicant reclines while the true contest gathers dust, nor a perpetual advantage won without trial and without notice. The reconciliation lies not in granting the injunction sought, but in declining it while yet preserving the subject matter — through the one party who is before the Court and does not oppose — for the short and measured season it will take to bring the 1st Respondent properly before the Court, if at all. A holding restraint directed at the register binds no absent party to any finding; it merely keeps the field intact, and it is conditioned firmly upon the Applicant’s diligence in effecting service, if needs be by substituted service. Equity aids the vigilant, not those who slumber upon their rights. ***(vii) Costs*** **20.** Costs are in the discretion of the Court and ordinarily follow the event under the proviso to **Section 27 of the Civil Procedure Act, Cap 21**. The Applicant has not succeeded on the relief sought. But the application has not been contested by the 2nd Respondent, and the merits as against the 1st Respondent remain to be ventilated once he is served. In those circumstances the just order is that costs be in the cause. **F. CONCLUSION AND DISPOSAL ORDERS** **21.** The upshot of the foregoing is that the Applicant has not made out a case for the temporary injunction sought against the 1st Respondent, who has in any event not been served and remains unheard, while the subject matter of the suit ought nonetheless to be preserved pending his being brought, if found, before the Court. Without making any final determination upon the merits of the Originating Summons or upon the claim of adverse possession, all of which remain wholly open for trial, the Court makes the following orders for disposal thereof: **a.** ***The prayer for a temporary injunction against the 1st Respondent, Eliakim Milton Masale, is not granted at this stage.*** **b.** ***Pending the determination of the case, and to preserve the subject matter of the suit, the 2nd Respondent, the Chief Land Registrar, shall register a restriction against the title to LR No. MN/III/1271 – Mombasa Mainland North, restraining any transaction, transfer, charge, disposition or subdivision of the said parcel until further order of this Court.*** **c.** ***The Applicant shall make more and alternative efforts to effect service of the Originating Summons, the Notice of Motion, the supporting affidavit and a copy of this Ruling upon the 1st Respondent within thirty (30) days hereof.*** **d.** ***In default of service within the time allowed, or of diligent prosecution of the suit, the restriction in order (b) above shall lapse and be liable to discharge upon application by any party or on the Court’s own motion.*** **e.** ***The matter shall be mentioned on the 9th day of November, 2026, to confirm compliance and to further directions on disposal of the suit.*** **f.** ***Costs shall be in the cause.*** **It is so ordered.** This **Ruling** has been **dated** and **signed** at **Mombasa** and delivered virtually via Microsoft Teams on this 23rd day of July, 2026*.* \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **B. AKELLO, OGW** **JUDGE** In the presence of: Gillian – Court Assistant Eliud Otieno for the Applicant N/A for the 1st Respondent Mr. Waga for the 2nd Respondent