https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4778

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **ELC NO. E035 OF 2025** **EDWARD SHIDA KAULI *(on behalf of the Kwa Kauli Family, Mwabeja Clan………...*…..…..........................……….....PLAINTIFF** * **VERSUS -** **KOMBO MUNYIKA MAKELELE...…………………1ST DEFENDANT MUNYIKA BATI…………………………..……………2ND DEFENDANT PATAYE CHUPHI………………………..……...…….3RD DEFENDANT** **RULING** 1. **Introduction** 2. The Notice of Motion application subject of this ruling is dated 17th April, 2025. It was filed by *EDWARD SHIDA KAULI (on behalf of the Kwa Kauli Family, Mwabeja Clan,* the Plaintiffs/Applicants herein. The application is made pursuant to the provisions of Sections 1A,1B & 3A of the Civil Procedure Act, Cap. 21, Order 40 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. 3. Upon service, the application was opposed through a Replying Affidavit sworn by the 3rd Defendant, *Pataye Chuphi Mariakani* and Grounds of Opposition dated 2nd July 2025 which the court will outline herein later. 4. **The case by the Plaintiffs/Applicants** 5. The Plaintiffs/Applicants sought for the following orders:- 6. ***SPENT*** 7. ***SPENT*** 8. ***That a temporary order of injunction do issue restraining the Respondents, their servants, agents, employees or any other person from trespassing cultivating transferring leasing alienating and/or interfering with in any other way dealing with suit property known as all of that unsurveyed plot of land located in Samburu, Chigombero area [formerly part of the Samburu South/Makamini Group Ranch] within Kwale County measuring approximately 800 acres pending hearing and determination of the suit*** 9. ***An order directed to the OCS Samburu police station to ensure compliance of the orders issued*** 10. ***That the costs of this application be provided for.*** 11. The application was premised upon grounds, testimonials and the averment on its face and the 9 Paragraphed supporting affidavit sworn by EDWARD SHIDA KAULI on 17th April, 2025. It was averred as follows that:- 12. He was a male adult of sound mind, the Plaintiff/Applicant herein and hence competent to make and swear this Affidavit. 13. His family and himself hailed from the Kwa Kauli family in Mwabeja Clan and had been in absolute ownership of all that unsurveyed Plot of land located in Samburu, Chigombero area (formerly part of the Samburu South/Makamini Group Ranch) within the County of Kwale measuring approximately 800 acres. 14. The suit property was their ancestral land where their fore fathers had access and had been in their use for over 100 years. 15. The suit property was not only their home but it was a source of their livelihood as they cultivated, alienated and/or kept livestock thereon. 16. The Respondents had now occupied the suit property without regard to the Plaintiff’s proprietary rights and had trespassed and interfered with the Respondents ownership of the suit property. 17. Further that the Respondents were trying to dispossess the Plaintiffs/Applicants off the suit property and they were apprehensive of suffering loss. 18. Unless the orders sought were granted, his family and himself stood to suffer irreparable loss as the suit property was not only home, but they had permanent structures, caused cultivation, commercial activities, livestock keeping buried their dead on it 19. The court was urged to grant the orders sought in the interest of justice. 20. **The responses through Grounds of Opposition & Replying Affidavit by the Respondents** 21. In opposing the application, the Defendants/Respondents through the Law firm of Omurwa Advocates filed Grounds of Opposition dated 2nd July, 2025 under the following therm that:- 22. the application dated 17th April, 2025 is a clear abuse of the court process and consequently should be dismissed with costs. 23. The application failed to satisfy the legal threshold as contemplated in law and thus fit for dismissal 24. The Applicant had failed to demonstrate ownership over the suit property and consequently the application should be dismissed with costs. 25. The Applicant had failed to demonstrate irreparable harm and damage that they were likely to suffer and consequently the application was not merited and should be dismissed with costs. 26. The application was made in bad faith and abuse of the court process and thus should be dismissed with costs. 27. The Respondents further filed a Replying Affidavit dated 3rd July, 2025 and sworn by the 3rd Defendant/Respondent Pataye Chuphi Mariakani who averred as follows that:- 28. He had the authority of the rest of the Respondents to swear the affidavit on their behalf. 29. The suit property was family land belonging to the Bati Makelele family that was confirmed vide a ruling dated 8th March, 2012. 30. Lastly, the application never met the required threshold for grant of the orders sought and the same thus ought to be dismissed. 1. **Submissions** 2. On 16th July, 2025 while the parties appeared before court, they were directed by this Honourable Court to have the application disposed of by way of written submissions. 3. Subsequently, the parties complied and the Court to reserve its Ruling on notice. Eventually, it was delivered on 13th July, 2026 accordingly. 4. **The Written Submissions by the Plaintiffs/Applicants** 5. The Law firm of Messrs. Mutanu & Co Advocates filed submissions on behalf of the Plaintiff/Applicant dated 24th November, 2025. M/s. Musyoki Advocate identified two ( 2 ) issues for determination and which were. 6. Firstly, whether the Honourable Court should grant orders for temporary injunction. The Learned Counsel submitted that the principles upon which an injunctive relief may be granted were now well settled as laid out in the case of:- “***Giella – Versus - Cassman Brown Limited [1973] EA page 358”***where a party must first show that they have a prima facie case with a probability of success and second, a party has to show or demonstrate that unless the injunction is granted they will suffer loss and damage that cannot be adequately compensated for by an award in damages. If in any case the court is in doubt, the court may resolve the issue by considering the balance of convenience having regard to the attendant circumstances. 7. The Learned Counsel for the Plaintiff/Applicant submitted that the Applicant and his family were the absolute owners of all that unsurveyed plot of land located in Samburu, Chigombero Area (formerly part of the Samburu South/Makamini Group Ranch) within Kwale County, measuring approximately 800 acres (the suit property) having been in occupation and possession of the same for over 100 years. That the same is their ancestral land and they have been cultivating, grazing, living and building there. It is more than their home. 8. It was asserted that the Defendants/Respondents had entered, trespassed, cultivated, alienated and/or interfered with the suit property and are trying to dispossess the Applicant and his family of the suit property which is their ancestral land. The Defendants/Respondents were actively frustrating the use and quiet enjoyment of the suit property by the Plaintiff/Applicant and his family. That should the Defendants/Respondents not be stopped from interfering with the Plaintiff/Applicant and his family’s use of the suit property, the Plaintiff/Applicant and his family stood to suffer irreparable loss and damage since they will either stand to lose their ancestral land to the Defendants/Respondents, be unable to farm in peace (which was their major source of livelihood) and therefore, they would be left destitute. 9. The Learned Counsel contended that this Honourable Court had the powers to grant the order of temporary injunction as prayed for the Plaintiff/Applicant. That the Plaintiff/Applicant had demonstrated ***“a prima facie”*** case with a probability of success to enable the court grant the said interim injunction. 10. Lastly, the Plaintiffs/Applicants urged the Court to allow the application with costs. 11. **The Written Submission by the 1st, 2nd & 3rd Defendants/Respondents** 12. The Law firm of Messrs. J. Kiseu & Co Advocates filed submissions on behalf of the 1st, 2nd & 3rd Defendants/Respondents dated 28th November, 2025. The Learned Counsel for the Defendants/Respondents submitted that the applicants had failed to prove their case pursuant to the provisions of Order 40 of the Civil Procedure Rules, 2010 and the dictum in the famous case of “***Giella - Versus - Cassman Brown Case***” on Injunctions and expounded on herein below. 13. Firstly, was whether the Applicant established ‘***a prima facie case”,.*** The Learned Counsel submitted that no document or material had been placed to confirm that the Plaintiffs/Applicants and their family were in occupation of the suit property. That the Defendants/Respondents on the other hand have confirmed that the property was in their possession in terms of use and occupation and further by a copy of the ruling dated 8th March 2012. 14. The Learned Counsel for the Defendants/Respondents opined on the second condition to be met and which was whether the Plaintiffs/Applicants had established that he was bound to suffer irreparable harm and damage. It was stated that having failed to prove ownership of the suit property, the aspect of loss could thus not suffice and that the same had not been proved. It was lastly submitted that the balance of convenience titled towards disallowing the Plaintiff’s application. **VI. Analysis and Determination** 1. I have carefully read and considered all the pleadings herein being the Notice of Motion application dated 17th April, 2025 by the Plaintiffs/Applicants, the Replying Affidavit, the Grounds of Opposition by the Defendants/Respondents herein, the written submissions, the authorities cited to bolster, the relevant and appropriate provisions of the Constitution of Kenya, 2010 and the statutes. 2. In order to arrive at an informed, fair, just and reasonable decision, the Honourable Court has framed three (3) issues for determination. These are: - 3. ***Whether the Notice of Motion application dated 17th April, 2025, by the Plaintiff/Applicant has met the threshold for granting of temporary injunctive orders sought.*** 4. ***Whether the parties are entitled to the reliefs sought.*** 5. ***Who bears the costs of the application?*** ***ISSUE No. a). Whether the Notice of Motion application dated 17th April, 2025 by the Plaintiff/ Applicant has met the threshold for granting of temporary injunctive orders sought.*** 1. Under this sub – heading, the Honourable Court will examine whether the Plaintiffs/Applicants should be granted the temporary orders of Injunction or not. Principally, the law governing the grant of interlocutory injunctions is found in the provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010 which provide as follows: - **“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;** **(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 order.”** 1. Further, the principles upon which an interlocutory injunction may be granted are well settled in the famous case of ***“Giella – Versus - Cassman Brown & Co Ltd (1973) EA 358 (Supra)’***. One has to establish “***a prima facie***” case with a probability of success and an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. If in doubt, the court will decide the matter on a balance of convenience. 2. The above are the three pillars on which rests the foundation of any order of injunction. 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. 3. Has the Applicant established “***a prima facie***” case? In the case of:- “***Mrao Limited – Versus - First American Bank of Kenya and 2 others, (2003) KLR 125***” which was cited with approval in the case of ***“Moses C. Muhia Njoroge & 2 others – Versus - Jane. W. Lesaloi & 5 Others (2014) eKLR”,*** the Court of Appeal defined a prima facie case as: - ***“A Primafacie case in a civil application includes but 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 there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later***”. 1. In the instant case, the Plaintiffs/Applicants allege that the Defendants/Respondents have not only trespassed, interfered but also invaded the suit property. Further, that they had taken occupation of the suit land to the detriment of the Plaintiffs/Applicants and their family. It was alleged that the Plaintiffs/Applicants with their family had been in use and occupation of the suit property for a very long period of time exceeding 100 years. It was referred to as ancestral land and whose ownership had moved from generation to generation. The Defendants/Respondents had on the other hand stated that the property belonged to them as the Bati Makelele family, that they had been in occupation and use of the suit and further that a ruling dated 8th March, 2012 cements their ownership. 2. I have carefully interrogated the evidence tendered by the Defendants/Applicants in support of the application. It is trite that he who alleges must proof. This is on the basis of the provision of Sections 107-109 of the [Evidence Act](https://new.kenyalaw.org/akn/ke/act/1963/46), Cap 80 Laws of Kenya, which provides that: **“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.** **108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.** **109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”** 1. Also see the Supreme Court holding in the case of: **- *“Gatirau Peter Munya – Versus - Dickson Mwenda Kithinji & 3 Others (2014) eKLR”****.* I have noted that both parties herein claim ownership of the suit property through their respective families, in trying to establish the Plaintiffs/Applicants stake on the suit property, the court took it upon itself to read all the pleadings as filed so as to have a clearer view of the nature of the occupation and the history of the suit property. The Plaintiffs/Applicants at the time of instituting this suit filed a statement accompanying the plaint. In one of the paragraphs, the Plaintiffs/Applicants averred that their family had been in occupation possession and ownership of the suit property and with the authority of the area chief, that they have been able to lease out the suit property as is within their rights and have also been able to sell some portions of the suit property with the express authority of the area chief to enable them raise money to cater for various day to day activities. 2. I wish to first point out that land ownership rights are not conferred by the area chief, the notion that selling or leasing the land with the consent and knowledge of the area chief does not in any way translate to cementing ownership or a claim of the land. It might support the aspect of physical occupation of the same but never the legal proprietorship rights. Secondly, I also wish to state that the ruling dated 8th March, 2012 which has heavily been relied upon by the Defendants/Respondents does not confer the ownership rights of the land to the said parties. As it is, it had not even been adopted by any court as an order and it is noted that the sittings were not held before a tribunal but before the local leadership being the area chiefs. 3. In my humble view, what has been presented before court are allegations without sufficient evidence to back it. I note the apprehension by the Plaintiffs/Applicants over the suit property, but again, I have not come across any evidence indicating that the Defendants/Respondents had the intention of selling the land or evicting the Plaintiffs/Applicants and his family, if anything, it is the Plaintiffs/Applicants who have confirmed that they have in the past sold and leased the land to interested third parties. 4. It is apparent that land ownership is a rather emotive subject especially in the coast region given the issue of historical land injustices that is a dominant subject whenever land matters are discussed, however the court cannot issue orders based on the emotive state and perceived of litigants but rather facts and evidence presented before it. 5. Therefore, the Court is not satisfied that the Plaintiffs/Applicants has established a prima facie case so as to warrant the granting of the orders of injunction. I am guided by the decision of RingeraJ. (as he was then was) in the case of:***“Showind Industries – Versus - Guardian Bank Limited & Another (2002) 1 EA 284”*** where the Learned Judge stated as follows: - ***“……an injunction is granted very sparingly and only in exceptional circumstances such as where the Applicant’s case is very strong and straight forward. Moreover, as the remedy is an equitable one, it may be denied where the Applicant’s conduct does not meet the approval of Court of equity or his equity has been defeated by laches”*** 1. Also, the Court in the case of:- *“****Robert Mugo Wa Karanja – Versus - Ecobank (Kenya) Limited & Another [2019) eKLR”*** 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. As was earlier observed, the threshold for grant of injunctive orders are rather conjunctive and not disjunctive, all aspects are to be satisfied. In the event that one aspect of the principles for grant of injunction has not been met then the court has no business further interrogating therest. I am guided by the decision in ***“Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others, CA No. 77 of 2012”,*** where the Court expressed itself on the importance of satisfying all the three requirements for an order of injunction as follows: - ***“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;*** ***(a) Establish his case only at a prima facie level,*** ***(b) Demonstrate irreparable injury if a temporary injunction is not granted, and*** ***(c) Ally any doubts as to (b) by showing that the balance of convenience is in his favour.*** ***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. Ltd – 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. When this file was first placed before court on priority under certificate of urgency, the court issued status quo orders. In the interest of natural Justice, Conscience and Equity, I wish to confirm that it will remain in place pending the hearing and determination of this suit. Status quo orders are different from injunctions, meaning that the considerations to be established for grant of injunctions are not necessary under status quo orders. Also, the said orders can be issued by the court “***suo moto”*** in exercise of its general jurisdiction. ***ISSUE No. c). Who will bear the costs of the application?*** 1. It is trite that the issue of costs is at the discretion of the Court. Costs mean the award granted to a party upon the conclusion of a legal action and proceedings in any litigation. The proviso of Section 27 ( 1 ) of the Civil Procedure Act, Cap, 21 holds that costs follow the event. By the event it means the result or outcome of the legal action. 2. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of “***Jasbir Singh Rai & 3 others – Versus - Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR”,*** as follows:- ***“18. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the Defendant or Respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.*** ***Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant”.*** 1. In the instant case, although the Plaintiff/Applicant has not managed to proof his case, in the interest of Justice, its reasonable that each party bear their own costs herein. 2. **Conclusion & disposition** 3. Consequently, upon causing indepth analysis of the framed issues, the Honourable Court on the principles of Preponderance of Probabilities and the balance of convenience, arrived at the following orders: - 4. **THAT the Notice of Motion application dated 17th April, 2025 be and is hereby found to be unmeritorious, hence its is dismissed.** 5. **THAT the status quo orders issued by this Honourable Court earlier for purposes of preserving the suit property pending the hearing and determination of the main suit are still in place. For avoidance of doubt, the same shall entail the following:-** * 1. **There shall be no further leasing, sale, transfer or charging of the suit property.** 2. **There shall be no eviction of either of the parties from the suit property.** 6. **THAT there shall be a mention on 19th October 2026 for purposes of conducting Pre – Trial Conference pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There shall be a hearing on 4th February 2027 before ELC No. 1 Kwale, preferably through Physical Means.** 7. **THAT each party shall bear its costs of the application herein.** **IT IS ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS** **VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……13TH ……. DAY OF ………..JULY………….2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT** **KWALE.** **Ruling delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. M/s. Musyoki Advocate for the Plaintiff/Applicant. 3. Mr. Kiseu Advocate for the 1st, 2nd & 3rd Defendants.