https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3539

Mohamed & another v Mwabagala & 4 others (Environment and Land Case E065 of 2025) [2026] KEELC 3539 (KLR) (5 May 2026) (Ruling) Neutral citation: [2026] KEELC 3539 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Environment and Land Case E065 of 2025 LL Naikuni, J May 5, 2026 Between Askia Vwende Mohamed 1st Applicant Suleiman Mohamed 2nd Applicant and Mwinyiusi Abdalla Mwabagala 1st Respondent Mwinyi Mazoa Ng'Ang'A 2nd Respondent Ali Ali Mwatambara 3rd Respondent Duncan Nyang'Wara Osoro 4th Respondent The District Land Registrar-Kwale 5th Respondent Ruling I. Introduction 1.Before the Honourable Court was a Notice of Motion application dated 23rd July, 2025 filed by Askia Vwende Mohamed and Suleiman Mohamed, the 1st & 2nd Applicants herein. The application sought for interlocutory temporary injunction pending the hearing and determination of the suit. It was brought under Certificate of Urgency by the Law firm of Messrs. Birir &Company Advocates under the provisions of Order 40 Rule 1 of the Civil Procedure Rules 2010, Sections 3A and 63 of the Civil Procedure Act, Cap. 21 and all other enabling provisions of the law. 2.Upon effecting service, and while opposing the application a Notice of Preliminary objection dated 6th October 2025 was filed by Mwinyiusi Abdalla Mwabagala, Mwinyi Mazoa Ng'ang'a, Ali Ali Mwatambara and Duncan Nyang'wara Osoro, the 1st to 4th Respondents, Replying Affidavit dated even date and Grounds of Opposition dated 4th December, 2025 filed by the District Land Registrar, the 5th Respondent herein. 3.On 15th December, 2025 when all the parties appeared before the Honourable Court, there were directions that the application and the objection be dealt with simultaneously by way of written submissions and an omnibus ruling be delivered accordingly. II. The case by the 1st & 2nd Applicants 4.The 1st and 2nd Plaintiffs/Applicants sought for the following specific orders:-a.Spent.b.That Pending the hearing and determination of this application, a temporary injunction do issue restraining the Respondents by themselves, agents, servants or any other person acting on their behalf from evicting, trespassing, alienating, selling or in any way interfering with the Applicants quiet possession Plot No. Kwale/Ng'ombeni/411 measuring 2.2 Ha.c.That Pending the hearing and determination of the originating summons, a temporary injunction do issue restraining the Respondents by themselves, agents, servants or any other person acting on their behalf from evicting, trespassing, alienating, selling or in any way interfering with the Applicants quiet possession Plot No. Kwale/Ng'ombeni/411 measuring 2.2 Ha.d.That Officer Commanding Station - (OCS) Ng'ombeni Police Station, Kwale County do ensure compliance.e.That costs of this application be provided for. 5.The application was based on the grounds, testimonial facts and averments made out under a 10 Paragraphed the Supporting Affidavit of Askia Vwende Монамеed, together with annextures marked as “AVM – 1, 2 & 3” annexed thereto where he averred as follows that:-a.He was the 1st Applicant herein and had been authorised to swear this Affidavit on his behalf by the 2nd Applicant herein. He was familiar to the facts of this case.b.At all material times to this suit, the family had lived in the parcel of land known as Land Reference Numbers Kwale/Ng’ombeni/411 measuring 2.2 Ha for over 12 years. Annexed hereto and marked as “AVM – 1” was a copy of a Certificate of Title Deed, Search and Green Card to that effect.c.During the entire period, they had lived openly, cultivated and build permanent houses with their families peacefully over the years without any interruption and it was their only home.d.Apart from the suit land, they did not know any other home or place.e.The 1st ,2nd and 3rd Respondents who were now registered as proprietors of the said land had never made any claim before or after they obtained the title documents.f.The 4th Respondent had been made a party because of a Power Attorney which the 1st 2nd and 3rd Respondents gave him.g.They filed this suit through Originating Summons seeking to be declared as the legal owners though land adverse possession under the provision of Section 38 of the Limitation of Action Act, Cap. 22 of the Laws of Kenya. However, they were apprehensive that the Respondents may interfere with their possession including eviction, sale or transfer which shall defeat justice.h.The 1st ,2nd and 3rd Respondents had surreptitiously registered their Advocate to hold a Power of Attorney to facilitate an easier disposal of the land and which Power of Attorney between a client and an Advocate was a suspect and is shrouded in mystery.i.Unless the orders sought are granted, the Respondents are likely to evict or interfere with possession before the suit is heard and determined which would occasion irreparable loss and render the suit nugatory.j.It was in the interest of justice that status quo be maintained pending the hearing and determination of the suit.k.The application had a prima facia case with high probability of success. III. The case by the 1st - 4th Respondents 6.The Preliminary Objection:- As indicated above, the application was opposed through a Replying Affidavit and by a Notice of Preliminary objection raised by the 1st to 4th Respondents herein. The objection was based on the following grounds that:-a.This suit was in breach of “the Doctrine of Res Judicata” pursuant to the provisions of Section 7 of the Civil Procedure Act, Cap. 21 Laws of Kenya, the issues in dispute having been previously heard and finally determined between the same parties, or those claiming under them in the Civil Suit “Kwale SRM Land Case No. 14 of 2003 and Kwale ELC Case No. E064 of 2021“ over the same subject matter.b.The present suit frivolous, vexatious and/or is otherwise an abuse of the process of the Court as per the provision of Order 2 Rule 15 of the Civil Procedure Rules, 2010, being an attempt to re-litigate matters already conclusively determined by courts of competent jurisdiction which was now “functus officio”.c.Consequently, this Honourable Court is divested of Jurisdiction to entertain or grant any of the orders sought in the Applicants’ pleadings, and the same ought to be struck out and/or dismissed with costs. 7.The Replying Affidavit:- The 1st -4th Respondents further filed a 21 Paragraphed Replying Affidavit sworn by Mwinyusi Abdalla Mwabagala, together with annextures marked as “Pages 1 to 29” annexed thereto. He averred as follows that:-a.He was the 1st Respondent in this matter and duly authorised on behalf of the other Respondents.b.The orders being sought in Notice of Motion Application dated the 23rd July, 2025 had been overtaken by events since part of the land in issue, to wit, LR. No. KWALE/NGOMBENI/411, had already been sold, demarcated and beacons had been physically placed on site vide an agreement for sale dated the 15th May, 2025.c.The Applicants and/or their families had not spent and/or stayed on the suit property for more than 8 years having moved from Dongo Kundu area around the year 2018. They started building after being compensated /the government paying for the Dongo Kundu project/bypass. They migrated from Dongo Kundu area in the year 2018.d.The deponent had dug a bore hole on the Southern Part of the suit land, and had been clearing and cultivating and harvesting palm wine and coconuts from the Parcel of land thus the allegation that they have not claimed or questioned the Applicants illegal entry was false.e.In the year 2018, the 1st to 3rd Respondents petitioned the Honorable Kadhi at Kwale, Succession Cause No. 301 of 2018, the subject being the Administration and distribution of Kwale/Ng’ombeni/411, the suit property. The Petition was allowed on the 26th September, 2018. By this day, the Respondents or any of their relatives were not on the suit property.f.The present proceedings constituted a gross abuse of the process of this Honorable Court, being an attempt to re-litigate matters conclusively determined by Courts of competent jurisdiction, which was now functus officio.g.The ownership and occupation of the suit property was conclusively determined in Kwale SRM Land Case No. 14 of 2003.h.The Applicants tried to raise the same dispute in Kwale ELC Case No. E064 of 2021 over the same subject matter. It was dismissed for being res judicata and time-barred, with costs on 16th February 2022.i.It was deposed that the suit property, Land Parcel No. Kwale/Ng’ombeni/411 was lawfully registered in the names of the 1st , 2nd and 3rd Respondents as Co -Proprietors, having acquired ownership lawfully through succession and transmission following the demise of our respective fathers, as confirmed by a Grant of Letters of Administration issued on 31st May, 1995 and the Kadhi’s ruling /order dated the 26th September, 2018.j.The Applicants’ claim that the suit property belonged to their late father, Mohamed Suleiman Mwatengeza, was false, as it could be evidenced by records from the Courts and the Land Registry. He had neither appeared on any records nor had he ever stayed on the suit property.k.The Applicants’ family’s alleged entitlement was rejected by the area Chief, the District Officer’s Panel, and subsequently confirmed as baseless by courts in prior proceedings.l.The Applicants’ invocation of the doctrine of land adverse possession was legally untenable, as they had continuously acknowledged the Respondents’ ownership by filing suits, appeals and applications over the same property, thereby interrupting any alleged period of adverse possession.m.Such repetitive litigation amounted to interruption of possession under the provision of Section 13 of the Limitation of Actions Act, Cap. 22 and defeated any claim of continuous occupation.n.The Applicants’ alleged possession had never been peaceful, exclusive or uninterrupted, as the Respondents had at all times asserted their proprietary rights through lawful proceedings and registration and that the Applicants’ illegal stay had not met the minimum applicable statutory prescribed period.o.After the Applicants’ civil suit “Kwale CMCC Land Case No. E064 of 2021” being dismissed, they instructed their Advocates to commence the process of eviction and /or disposal of the suit property. The Advocate wrote a demand letter to the Applicants and copied their Advocates. They demanded that they vacate the suit property and pay for the Costs.p.The Applicants had failed to disclose that the Respondents had continuously exercised rights of ownership, maintained the property, and remained the lawful proprietors thereof. The Honorable Courts had previously held that, one could not claim to have acquired land by adverse possession if he claims that the land he was occupying is his ancestral land having been born and brought up on the land and that the registered owner has never been in possession of such land.q.With regards to the allegations about the 4th Respondent, Mr. Duncan Nyang’wara Osoro, the deponent confirmed and stated that they duly appointed and gave him the Power of Attorney of the 1st, 2nd and 3rd Respondents pursuant to a registered Power of Attorney, executed to facilitate representation and management of the Respondents’ proprietary interests in the suit property.r.Such appointment was lawful, regular and in conformity with the Registration of Documents Act and the Law of Contract Act, and did not constitute a conflict of interest as alleged.s.The filing of the present application and suit amounted to forum shopping intended to frustrate enforcement of lawful court orders, evade satisfaction of pending costs and unlawfully delay the Respondents’ quiet enjoyment of their property.t.Litigation must come to an end and that this Honourable Court was bound by “the doctrines of Res Judicata, functus officio and finality of litigation” to prevent the re - opening of matters already concluded.u.The Applicants’ Notice of Motion application dated 23rd July 2025 and the accompanying Originating Summons be struck out with costs, and that this Honourable Court do direct the Applicants to first satisfy or deposit all pending costs from previous proceedings before seeking further audience. IV. The case by the 5th Respondents 8.The 5th Respondent filed grounds of opposition dated 4th December 2024 in opposing the applicants Notice of Motion application and the entire suit instituted by the Applicants. It was based on the following grounds that:-a.The claim for adverse possession was legally sustainable only against the registered proprietor, as expressly contemplated under the provision of Sections 7, 13, 17 and 38 of the Limitation of Actions Act, Cap. 22. The Land Registrar was therefore not a necessary or proper party to these proceedings.b.The Land Registrar had no statutory mandate to defend or adjudicate claims founded on adverse possession. Under the Land Registration Act, 2012, the Registrar’s functions was purely administrative and arise only upon issuance of a court order capable of registration.c.The Originating Summons disclosed no reasonable cause of action against the Land Registrar, who neither held nor asserted any proprietary interest in the suit property. The joinder of the 5th Respondent was therefore a misjoinder contrary to Order 1 of the Civil Procedure Rules, 2010.d.The continued participation of the Land Registrar in these proceedings served no legal or practical purpose and offended the principle that only parties against whom relief was sought or who are necessary for the effectual adjudication of the dispute should be joined.e.The suit disclosed no cause of action against the 5th Respondent and in the absence of any substantive relief sought against the Land Registrar, the claim against the 5th Respondent should be struck out “in limine” as an abuse of the court process. V. Submissions 9.On 29th October 2025, in the presence of all the Counsels for the Plaintiffs/Applicants and Defendants/Respondents herein, the Honourable Court directed parties to canvass the matter by way of written submissions. 10.Pursuant to that, all the parties had fully complied with the said order. The Honourable Court reserved the delivery of the Ruling on notice. Eventually, it was delivered on 5th May, 2026 accordingly. A. The Written Submissions by the Applicants on the Preliminary Objection dated 6th October 2025. 11.The Law firm of Messrs. Birir & Co Advocates filed their written submissions dated 26th November 2025. Mr. Birir Advocate commenced his brief submissions by stating that a preliminary objection could only be raised on a pure point of law. The Counsel stressed that the said objection had not met the threshold for such an objection. 12.The Learned Counsel made reference to the holding in the case of:- “Supreme Court of Kenya Petition No. E022 of 2020. Wamae & 97 others – Versus - Barclays Bank of Kenya Limited (Petition No. 19 (E022) of 2020) [2021] KESC 5 (KLR)”. That the preliminary objection dated 6th October, 2025 lacked in merit and does not meet the required standards as per the decided case. 13.In the previous suit, the 4th Respondent was not a party to it. They had attached a Replying Affidavit on facts and hence which ousted the Preliminary Objection. 14.The objection, ought to be struck out and the matter do proceed uninhibited. B. The Written Submissions by the 1st to 4th Respondents on the Preliminary Objection dated 6th October 2025. 15.The Law firm of Messrs. Osoro & Osoro Advocates filed written submissions dated 29th December, 2025 on behalf of the 1st to 4th Respondents. Mr. Osoro Advocate identified the following issues for determination: -i.Whether the Respondents’ Preliminary Objection meets the threshold of a pure point of law and is properly before this Honourable Court.ii.Whether the Originating Summons dated 23rd July 2025 and the Notice of Motion of even date are barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act.iii.Whether this Honourable Court is functus officio and therefore lacks jurisdiction to entertain the suit and application.iv.Whether, in light of the foregoing, the suit and the application constitute an abuse of the court process and ought to be struck out with costs. 16.On the first issue. The Learned Counsel made reference to the dictum in the case of:- “Mukisa Biscuit Manufacturing Co. Limited” on the principles of what constitute a proper preliminary objection. It was submitted that in the instant matter, Respondents’ Preliminary Objection raised, among others, the doctrines of res judicata, functus officio, and lack of jurisdiction points of law that could be determined from the pleadings and the Court record without reference to evidence. 17.The Learned Counsel averred that the Preliminary Objection was properly before this Honourable Court and met the legal threshold set out in the case of:- “Mukisa Biscuit Manufacturing Co. Limited (Supra”) and “Oraro – Versus - Mbaja [2005] eKLR”. 18.On the second issue to wit that the Originating Summons dated 23rd July, 2025 and the Notice of Motion of even date had violated the doctrine of Res Judicata under the provision of Section 7 of the Civil Procedure Act, Cap. 21. The Learned Counsel for the Respondents averred that the provision of Section 7 of the Civil Procedure Act, Cap. 21 provides that no court shall try any suit or issue in which the matter directly and substantially in issue had been directly and substantially in issue in a former suit between the same parties, or parties claiming under them, litigating under the same title and had been heard and finally decided by a court of competent jurisdiction. The ownership, occupation and entitlement to Land Parcel No. Kwale/Ng’ombeni/411 were the subject of previous litigation, including the civil suit “Kwale SRM Land Case No. 14 of 2003 and MCELC Kwale Case No. E064 of 2021”, which were heard and finally determined by courts of competent jurisdiction. 19.It was submitted that the Court was “functus officio”. He made reference was made to the holding in the Supreme Court case of:- “Odinga – Versus - Independent Electoral & Boundaries Commission & 3 others (Petitions Nos. 3, 4 & 5 of 2013 (Consolidated)) [2013] KESC 8 (KLR)” where the court discussed the doctrine of functus officio and explained that once a court had performed all its duties in a particular case and rendered a final decision, it lacked authority to re-open or alter that decision, save as provided by law. 20.Lastly, the Learned Counsel averred that in order to uphold the principles of finality, proper administration of justice, and the integrity of this Honourable Court, it should uphold the Preliminary Objection and strike out the Originating Summons and Notice of Motion application with costs to the Respondents. III. Analysis & Determination. 21.I have carefully read and considered the pleadings herein by the Applicants and Respondents, the written submissions and the cited authorities by the parties, the relevant provisions of the Constitution of Kenya, 2010 and statures. 22.For the Honourable Court to arrive at an informed, just, equitable and reasonable decision, it has framed the following four [4] issues for its determination. These are:-a.Whether the Preliminary Objection raised herein meets the threshold based on law and precedents.b.Whether the Preliminary objection dated 6th October 2025 is merited?c.Whether the Notice of Motion application dated 23rd July 2025 ought to be allowed by this honourable court.d.Who bears the costs of the Notice of Preliminary objection dated 6th October, 2025 and the application dated 23rd July, 2025? Issue No. a). Whether the Preliminary Objection raised herein meets the threshold based on law and precedents. 23.Under this sub - title, the Honourable Court shall examine the nature, scope and meaning of the concept of “Preliminary Objection”. According to the Black Law Dictionary a Preliminary Objection is defined as being:-“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….” 24.The Superior Court have comprehensively expended on this issue and hence there will be no need to re – invent the wheel herein. As already stated above, the court in the case of “Mukisa Biscuits Manufacturing Co Ltd (Supra)” described a preliminary objection as hereunder:-'So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.' 25.Sir Charles Newbold, JA in the same case stated that: -'A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.' 26.Further, in the case of:- “Nitin Properties Limited – Versus - Singh Kalsi & Another [1995] eKLR” the Court stated thus:-'A Preliminary Objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.' 27.The Tanzanian Court of Appeal sitting in Dar es Salaam, in the case of:- “Karata Ernest & Others – Versus – Attorney General (Civil Revision No. 10 of 2020) [2010] TZCA 30 (29th December, 2010), (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA), expounded the issue of preliminary objections in a more exhaustive manner as follows: -“At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.’ 28.The Supreme Court addressed its mind on this issue in the case of “Aviation & Allied Workers Union Kenya – Versus - Kenya Airways Limited & 3 Others [2015] eKLR” and stated:-“Thus, a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.”Also see the case of “In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that:-“A Preliminary Objection cannot be raised if any facts has to be ascertained.” 29.I have further relied on the decision of “Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR”: - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia: -(i)A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.(ii)A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and(iii)The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute. 30.Additionally, the above legal preposition has been made graphically clear in the by the Supreme Court of Kenya in the case of:- “Independent Electoral & Boundaries Commission – Versus - Jane Cheperenger & 2 Others [2015] eKLR” made the following observation as relates to Preliminary Objections:“… The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.” 31.I further wish to refer to the case of:- “Attorney General & Another - Versus - Andrew Mwaura Githinji & another [2016] eKLR”: - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia: -a.A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.b.A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; andc.The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute. 32.This court having been guided by the above authorities on the description of a preliminary objection, it is not in doubt that a preliminary objection raises pure point of law, which is argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or the court is called upon to exercise judicial discretion. In the case of:- “Quick Enterprises Limited – Versus - Kenya Railways Corporation, Kisumu HCCC No.22 of 1999”, the court held that: -“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the Court having to result to ascertaining the facts from elsewhere apart from looking at the pleadings.” 33.It is also this court’s view that in determining a preliminary objection, the court will consider that the preliminary objection must stem from the pleadings and raise pure point of law. Therefore, in conclusion, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. Issue No. b). Whether the Preliminary objection dated 6th October 2025 is merited. 34.Under this sub – heading, and having provided a detailed expose on the concept of an objection, the Honourable Court while applying these legal principles to the instant case, will now assess whether the objection by the Respondent has any merit or not. 35.To begin with, the Honourable Court has taken judicial notice that the Respondents strongly submit that the instant suit is in violation of the doctrine of Res Judicata thus offending the provision of Section 7 of the Civil Procedure Act, Cap. 21. Ideally, the Respondents maintain that the issues raised in the present suit have already been dealt with and the suit is a replica of other civil suits being “Kwale SRM Land Case No. 14 of 2003 and Kwale ELC Case No. E064 of 2021” 36.The provision of Section 7 of the Civil Procedure Act, Cap. 21 which lays the basis for the doctrine of res judicata provides that:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 37.The doctrine was discussed in the case of:- “Independent Electoral & Boundaries Commission – Versus - Maina Kiai & 5 Others [2017] eKLR”, where the Supreme Court held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is: -“(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 38.Critically speaking, it is my firm belief that whether or not the matter herein is res judicata will lead to the court intensely interrogating the pleadings in Kwale SRM Land Case No. 14 of 2003 and Kwale ELC Case No. E064 of 2021 suits and such probe is definitely an issue of ascertaining facts. These would be clear an assessment of the factual aspects of the existence and basis of these civil cases – the parties involved, the subject matter, the determination of them and their finality. These are matters which cannot be determined instantly at this stage of the proceedings. Thus, the objection is premature. For that reason, I do not find that the point of res judicata has been properly raised in the preliminary objection. In saying so, I am in agreement with the court’s decision in the case of:- “Henry Wanyama Khaemba – Versus - Standard Chartered Bank Limited & Another [2014] eKLR”, the Court held that:-“That re-statement of the limited scope of a Preliminary Objection brings me to the point where I hold that the Preliminary Objection by the 1st Defendant is not a true Preliminary Objection in the sense of the law. The issues of res judicata, duplicity of suits and suit having been spent will require probing of evidence as it is already evident from the submissions by the 1st Defendant. They are incapable of being handled as Preliminary Objections because of the limited scope of the jurisdiction on preliminary objections. Court of laws have always had a well-founded quarrel with parties who resort to raising preliminary objections improperly." 39.Similarly, this court is persuaded by the findings in the case of “Oraro - Versus - Mbaja (2005) 1KLR 141”, where the court held that: -“Anything that purports to be a preliminary objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence…..Any assertion styled as a Preliminary objection, which bears factual aspects calling for proof or which seeks to adduce evidence for its authentication, is not, a s a matter of legal principle, a true preliminary objection.” 40.The upshot of all the foregoing, I discern that the objection has no merit and hence must fail altogether. Issue No. c). Whether the Notice of Motion application dated 23rd July 2025 ought to be allowed by this Honourable Court. 41.Under this Sub – heading, the Honourable Court will be examining whether the application by the Applicants and the reliefs sought has any merit or not. The application seeks for being granted interlocutory temporary injunctive orders pending the hearing and determination of the suit. 42.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 1Where 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; orb)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. 43.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.” 44.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”. 45.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” 46.Ideally, 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 [Supra)”. 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. 47.Have the applicants established a prima facie case? The Applicants allege that they have been in occupation and use of the suit property over 12 years and the timeframe for a claim of land adverse possession against the registered owners has matured. The Applicants in bringing the application before court were apprehensive that the 1st , 2nd & 3rd Respondents and who are the registered owners to the suit property were keen on eviting them. It is alleged that the said Respondents invaded the suit property with the intention of developing the same without any legal basis on ownership. To buttress on these allegations, the Applicants annexed several evidence including copies of the official searches, title deed and a set of Photographs ostensibly taken from the suit land. 48.Juxtapose, on the other hand, the Respondents maintain that they have been in occupation of the property since time immemorial and that the adverse possession claim was not merited nor sustainable. They maintained that the Applicants entered into the property sometime in the year 2018 after selling their land in Dongo Kundu and having been fully compensated by the Government. They held that the suit had already been overtaken by events as the suit land had already been sub – divided and even transferred to third parties hence making the whole suit an academic exercise whatsoever. To them all the assertions over the suit property as stated by the Applicants were thus falsified. 49.I have carefully interrogated the evidence tendered by the Applicant in support of the application. It is trite that he who alleges must proof see the supreme court holding in the case of:- “Gatirau Peter Munya – Versus - Dickson Mwenda Kithinji & 3 Others (2014) eKLR”. The Applicants alleges to be the owners of the property and maintain that they have been in occupation of the same for a long period of time exceeding 12 years, from the evidence tendered in the supporting affidavit, I do not seem to find anything concrete like matured trees, graves, houses and any developments to confirm a long term occupation. 50.I do not wish to make a decision as to whether occupation has been confirmed at an interlocutory stage but my analysis is based on the apprehension by the Applicants that they might be rendered homeless through eviction. In my humble view, what has been presented before court are allegations without sufficient evidence to back the same up. 51.Therefore, the court is not satisfied that the Applicants have established “a prima facie case” so as to warrant the granting of the orders of injunction. I am guided by the decision of Ringera J. (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” 52.The upshot of this therefore, is that the application by the Applicants cannot succeed. However, the suit should be allowed to expeditiously proceed for full trial whatsoever. Issue No. c). Who bears the costs of the notice of preliminary objection dated 6th October 2025 and the application dated 23rd July 2025? 53.It is now well established that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of a legal action and proceedings in any litigation. The proviso of Section 27 of the Civil Procedure Act, Cap. 21 provides that costs should follow the event unless the court for some good reason orders otherwise. By the event it means the outcome of result of the legal action. 54.I wish to point out that whenever costs are sought it is not with the intention to punish the Applicants but rather for compensation for the trouble the Respondents have gone through defending the suit and prosecuting the case and restore them in the position as it were prior to the institution of proceeding against them. See the case of Rosemary Wairimu Munene Ex-parte Applicant v Ihururu Party Farmers’ Cooperative Society J.R. No. 4/2014” as cited in the case of “Cecilia Karuru Ngayu – Versus - Barclays Bank of Kenya & Another [2016] eKLR”. 55.In the given circumstances of this matter, it is fair, just and reasonable that the proper way out here is for each party to bear its own costs. C. Conclusion and Final Disposition 56.Consequently, based on the indepth analysis of the framed issues, the Honourable Court guided by the Princeples of Preponderance of Probabilities and the balance of convenience, it proceeds on to make the following orders specific orders:-a.That the Preliminary Objection dated 6th October 2025 be and is hereby dismissed for it lacks merit.b.That the Notice of Motion application dated 23rd July 2025 be and is hereby similarly found to lack merit and hence it is dismissed.c.That for expediency sake, there be a mention on 24th September, 2026 for purposes of conducting Pre – Trial Conference pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There be a hearing of the suit on 18th January, 2027 preferably through Physical means.d.That each party to bear its own costs.It is ordered accordingly. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 5TH DAY OF MAY 2026………………………………HON. MR. JUSTICE L.L NAIKUNI,ENVIRONMENT & LAND COURTATKWALE.Ruling delivered in the presence of: -a. Mr. Daniel Disii, the Court Assistant.b. Mr. Birir Advocate for the 1st & 2nd Plaintiffs/Applicants.c. M/s. Nyagah Advocate holding brief for Mr. Osoro Advocate for the 1st, 2nd & 3rd Defendants/Respondents.d. M/s. Kiti Advocate for the 5th Defendant/Respondent.e. No appearance for the 4th Defendant/Respondent.