https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4306

**REPUBLIC OF KENYA** **ENVIRONMENT AND LAND COURT AT KWALE** **ELCLC CASE NO. E120 OF 2025** **MEENA BHAGWANDAS PATEL ……………………….………………… PLAINTIFF** * **VERSUS -** **HAMADI RAMA PHATSA ……....………………………………….. 1ST DEFENDANT** **JUMA DOSHO ……....……………………………………………….. 2ND DEFENDANT** **OMAR MWAMAGUNDU** **……....……………………………..…….. 3RD DEFENDANT** **MATANO ALI CHINGO CHINGO ………………………………….. 4TH DEFENDANT** **ROBINSON LAGAT ……....……………………………………..….. 5TH DEFENDANT** **CHIEF LAND REGISTRAR KWALE ……....……………………. 6TH DEFENDANT** **COMMUNITY BASED ORGANIZATION AND** **WELFARE GROUP KOMBOZI …………………………………… 7TH DEFENDANT** **RULING** 1. **Introduction** 2. Before this Honourable Court for its determination is the Amended Notice of Motion application dated 26th November, 2025 filed by the Plaintiff/Applicant, *MEENA BHAGWANDAS PATEL.* Principally, it was brought under the provisions of Order 40 Rules 1 and 2, Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act, Cap. 21 and all other enabling provisions of the law. 3. The application seeks interlocutory injunctive relief to preserve two parcels of all that land known as Land Reference Numbers Kwale/Diani Beach/Block 1779 and Kwale/Diani Beach/Block 1780 (Hereinafter referred to as “The Suit Properties”) pending the hearing and determination of the suit. 4. Despite of service, none of the Defendants/Respondents filed either replies, grounds of opposition or submissions Order 51 Rule 14 of the Civil Procedure Rules, 2010 . Nonetheless, this Court remains under a constitutional and statutory obligation to independently evaluate the evidence and determine whether the Applicant has satisfied the settled legal principles governing the grant of interlocutory injunctions. It is now trite that an unopposed application does not automatically succeed merely because no response has been filed. The Court must still be satisfied that the Applicant has established a proper legal basis for the relief sought. 5. **The Plaintiff/Applicant’s Case** 6. The Plaintiff/Applicant sought for the following orders:- 7. ***Spent.*** 8. ***That the Honourable Court be pleased to issue an injunction order temporarily restraining the 1st, 2nd, 3rd, 4th , 5th and 7th Respondents with their agents, servants and contractors from tempering, interfering, trespassing, destroying, demolishing, encroaching, alienating, selling, building anything on the Applicant's Land Registration Number Kwale/Diani Beach/Block 1779 and 1780 pending hearing and determination of this Application and or suit.*** 9. ***That the OC's Diani Police Station to make sure that these orders are complied with and in disobedience to arrest anyone found on the land and arraign them to court for trespass.*** 10. ***Costs of this Application be provided for.*** 11. The application is premised by the grounds, testimonial facts and the averments made out under 14 Paragraphed Supporting affidavit sworn on 26th November, 2025 together with the annexures thereto, including copies of the Certificate of Lease, a Special Power of Attorney, an Occurrence Book extract and photographs depicting the alleged acts of trespass and excavation by MEENA BHAGWANDAS PATEL. The deponent averred as follows that:- 12. She was the Applicant herein and therefore competent to swear this Affidavit. 13. She had come to this court for redress as a law abiding citizen. 14. She was the owner of all that parcel of land known as Land Reference No. Kwale/Diani Beach/Block 1779 and with Special Power of Attorney to Plot No. 1780. Annexed and marked as "M. B. P. 1" and “2” were the copies of title and the Power of Attorney. 15. On 31st October, 2025 the 1st, 2nd , 3rd , 4th and 5th and 7th Respondents illegally stormed into my land and started to excavate using bulldozers for their own personal gain and they did so without my permission and notice. 16. The 1st, 2nd , 3rd, 4th, 5th and 7th Respondents had extensively damaged and denied her access to the land and were continuing with demarcation activities for their own personal gain. 17. The actions of the 1st, 2nd, 3rd, 4th, 5th and 7th Respondents amounted to hooliganism and compensation shall be a viable remedy. Annex marked as "M. B. Р. 3"were the photographs taken to show that the construction as ongoing collectively. 18. The 1st, 2nd, 3rd, 4th, 5th and 7th Respondents were trespassers and could not be allowed to continue to carry illegal activities to her land. 19. There was no notice served to her making her aware of their activities. 20. She reported this incident at DIANI POLICE STATION on 1st November, 2025 and was booked as OB No. 56/1/11/2025. Annexed and marked as "M. В. Р. 4" was the said OB. 21. Unless they were stopped by orders of this court, she stood to lose the property and be denied access to her property which she awfully acquired. 22. Further, unless the Application was heard urgently, she would have difficulties in managing her property as the land structure had been tampered with. They had erected structures claiming to have been the legal owners. 23. Additionally, unless the orders sought were granted on interim basis the 1st, 2nd, 3rd, 4th, 5th and 7th Respondents would continue to cause more damage to the land and to bring it back to normal would be very difficult. 24. No one would suffer prejudice if the orders on interim basis was granted by the court. 25. What she had stated herein was true to the best of her knowledge, information and belief. 26. **Submissions** 27. Subsequently, pursuant to the direction of this Court on 19th January, 2026, the Applicant filed written submissions dated 26th January, 2026 in support of the application wherein. She reiterated that despite service upon the Respondents, no response had been filed opposing the application and urged the Court to allow the prayers sought. 28. She further informed the Court that on 19th January, 2026 she withdrew the suit against the 5th Respondent on account of ongoing criminal investigations. 29. **The Written Submissions by the Plaintiff/Applicant** 30. As indicated above, the Plaintiff/Applicant, Ms. Meena Bhagwandas Patel, acting in person, filed her written submissions dated 26th January, 2026 in support of the Amended Notice of Motion application dated 26th November, 2025. In her submissions, the Applicant principally urged this Court to allow the application in its entirety as it was not opposed by any of the Respondents. 31. The Applicant submitted that the substantive prayers sought in the application were to be granted temporary injunction restraining the 1st , 2nd, 3rd, 4th and 7th Respondents, whether by themselves, their agents, servants or contractors, from trespassing upon, interfering with, excavating, demolishing, encroaching upon, alienating, selling, constructing on or otherwise dealing with Land Reference Numbers Kwale/Diani Beach/Block 1779 and Kwale/Diani Beach/Block 1780 pending the hearing and determination of both the application and the main suit. She further prayed that the Officer Commanding Station (OCS), Diani Police Station, be directed to ensure compliance with any orders issued by the Court and that the costs of the application be provided for. 32. The Applicant stressed that despite having duly served the Respondents with the Amended Notice of Motion through their advocate via WhatsApp on 29th November 2025, none of the Respondents filed a Replying Affidavit, Grounds of Opposition or written submissions in opposition to the application. She contended that the Affidavit of Service was already on record and, therefore, the application remained wholly uncontested. Consequently, she urged the Court to determine the application on the basis of the uncontroverted evidence placed before it. 33. The Applicant further informed the Court that on 19th January, 2026, she withdrew the suit against the 5th Respondent, Mr. Robinson Lagat, following ongoing criminal investigations concerning the alleged invasion of the suit property. According to the Applicant, the criminal investigations were intended to identify and prosecute those responsible for the alleged acts of trespass and unlawful occupation of the suit land. 34. According to the Applicant, since the application had not been challenged by the Respondents, the Court ought to grant the interlocutory orders sought in order to preserve the suit properties pending the hearing and determination of the main suit. She maintained that no prejudice would be occasioned to the Respondents if the orders were granted, whereas failure to issue the injunctive relief would expose her to continued trespass, interference and possible alienation of the suit properties before the dispute could be heard on its merits. 35. Finally, the Applicant urged the Court to grant the orders sought as they would serve the interests of justice by preserving the subject matter of the litigation pending the determination of the parties' respective proprietary rights with costs. 36. **Analysis and Determination** 37. I have meticulously considered the Amended Notice of Motion application dated 26th November, 2025 by the Plaintiff/Applicant herein, the Supporting Affidavit sworn on even date together with the annextures thereto, the written submissions dated 26th January, 2026, the applicable constitutional and statutory provisions and the judicial authorities governing the grant of interlocutory injunctions. 38. In order to arrive at a fair, just, equitable and informed determination of the application herein, this Honourable Court has framed the following three ( 3 ) issues for its determination:- 39. ***Whether the Plaintiff/Applicant has satisfied the legal threshold for the grant of an interlocutory injunction pending the hearing and determination of the suit.*** 40. ***Whether the Plaintiff/Applicant is entitled to the order directing the Officer Commanding Station (OCS), Diani Police Station, to supervise and ensure compliance with the orders of this Court.*** 41. ***Who should bear the costs of the application?*** ***ISSUE No. a). Whether the Plaintiff/Applicant has satisfied the legal threshold for the grant of an interlocutory injunction pending the hearing and determination of the suit.*** 1. Under this sub – heading, the Honourable Court will be examining the main substratum of this application – whether to grant temporary Injunctive orders or not. 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:** 1. **That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree;** 2. **That the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further order.”** 3. 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 (Supra)”.*** A litiganthas 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. 4. The first test is the issue of a prima facie case. The words prima facie are derived from the Latin words **prima facies**, meaning first appearance or on the face of things**.** Oxford Dictionary of law – 7th Edition 2009 – Oxford University Pages 422 defined the term “***prima facie”*** as ‘***a case that has been supported by sufficient evidence for it to be taken as proved should there be no adequate evidence to the contrary’*** 5. The Honorable Court is guided by the definition melted down in the case of:- “***MRAO Limited – Versus - First American Bank of Kenya Ltd & 2 others (2003) KLR 125***”, whereby it stated:- ***“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. Additionally, this is buttressed by the Court of Appeal in the case of:***-“Nguruman Limited – Versus – Jan Bonde Nielsen & 2 Others (2014) eKLR”****,* where they posited that the three limbs were sequential. The Court stated 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 the case of:- “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. Similarly, under the same breath, Court in the case of **“*Mbuthia – Versus - Jimba credit Corporation Limited 988 KLR 1”,* 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. Also, in the case of:- **“*Edwin Kamau Muniu – Versus - Barclays Bank of Kenya Limited*”** the court stated 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. From the material before Court, the Applicant has exhibited empirical supporting documentations on the legal ownership to the suit property. These are a Certificate of Lease showing that she is the registered proprietor of Land known as LR. No. Kwale/Diani Beach/Block 1779. She has also produced a Special Power of Attorney executed by the registered proprietors of Land Parcel Kwale/Diani Beach/Block 1780, authorizing her to act on their behalf in relation to that parcel. These documents constitute prima facie evidence of her legal interest in the suit properties. 2. Under the provision of Sections 24(a), 25(1) and 26(1) of the Land Registration Act, No. 3 of 2012 addresses the efficacy and effectiveness of registration of land and of a person as proprietor vests in that person legal and absolute ownership together with all rights and privileges appurtenant thereto. A certificate of title issued by the Registrar is prima facie evidence that the person named therein is the absolute and indefeasible owner unless the title is challenged on grounds of fraud, misrepresentation, illegality or acquisition through a corrupt scheme. 3. At this interlocutory stage, no evidence has been placed before Court challenging the authenticity of the Applicant's title to Parcel No. 1779 or disputing the validity of the Power of Attorney relating to Parcel No. 1780. 4. The Applicant further depones that the Respondents unlawfully entered and/or trespassed onto the suit properties, commenced excavation, subdivision, construction and other acts of interference without her consent. She annexed several photographs depicting extensive clearing of vegetation, excavation works and persons allegedly found on the land. The photographs appear consistent with the allegations that the physical condition of the land has been materially altered. 5. In addition, the Applicant annexed evidence showing that she reported the alleged trespass to Diani Police Station where the matter was recorded in the Occurrence Book. While an OB extract does not conclusively establish liability, it lends support to the assertion that the complaint was promptly reported to law enforcement agencies. 6. The Respondents have not filed any affidavit disputing the alleged acts of trespass, excavation or interference. Neither have they asserted any proprietary or possessory interest in the suit properties capable of rebutting the Applicant's claim. 7. While the Court appreciates that absence of opposition does not relieve an applicant from proving the case, the uncontroverted evidence presently before Court demonstrates, on a prima facie basis, that the Applicant has an identifiable proprietary interest which is alleged to have been unlawfully interfered with. 8. Consequently, and without making any definitive findings that may prejudice the hearing of the main suit, I am satisfied that the Applicant has demonstrated a prima facie case with a probability of success within the meaning of “***Giella – Versus - Cassman Brown and Mrao Limited – Versus - First American Bank of Kenya Ltd***. 9. Having found that the Plaintiff has established a prima facie case with a probability of success, this Court now proceeds to examine the second requirement for the grant of an interlocutory injunction, namely whether the Plaintiff has demonstrated that unless the orders sought are granted, he stands to suffer irreparable injury which cannot adequately be compensated by an award of damages. 10. 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. In the case of:- ***American Cyanamid Co. – Versus - Ethicon Ltd [1975] AC 396*** (adopted and applied by Kenyan courts including in the case of:- “***Stanley Kangethe Kinyanjui – Versus - Tony Ketter & 5 others [2013] eKLR)”***, it was held that where damages would be an adequate remedy and the respondent is in a position to pay them, the court should not normally grant an injunction. 2. The Applicant deposes that the Respondents continue excavating the land, clearing vegetation, altering the terrain, subdividing portions thereof and undertaking construction activities. She contends that unless restrained, these activities will fundamentally alter the character of the suit properties before the dispute is heard and determined. 3. Land, particularly where ownership itself is contested, possesses unique characteristics. Damage occasioned through excavation, environmental degradation, unlawful subdivision, alienation or permanent construction cannot always be adequately quantified in monetary terms. Once third-party interests intervene or the physical character of the land is substantially altered, restoration may become impracticable or impossible. 4. The annexed photographs depict extensive earthworks and disturbance of the land surface. If such activities continue unabated pending trial, the substratum of the dispute may be irreversibly altered, thereby defeating the very purpose of the pending suit. 5. Therefore, this Court is persuaded that the Applicant has demonstrated a real likelihood of suffering irreparable injury which cannot be adequately remedied by damages alone. 6. Having found that the Plaintiff has established both a prima facie case with a probability of success and that he stands to suffer irreparable injury, this Court now turns to the third consideration, namely whether the balance of convenience tilts in favour of granting or refusing the interlocutory reliefs sought. That issue shall now be considered. 7. In the case of:- “***Butt – Versus - Rent Restriction Tribunal [1982] KLR 418”***, the Court held:- ***"In considering the balance of convenience, the court must have regard to the strength of the respective cases and the likely outcome of the main suit."*** 1. In the case of “***Pius Kipchirchir Kogo (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. Further, in the case of “***Paul Gitonga Wanjau – Versus - Gathuthis Tea Factor Company Limited & 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 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. Where the Court is in doubt, the grant of an injunction is determined on the balance of convenience. This means the Court weighs the relative harm that would be suffered by each party if the injunction were granted or refused. 2. In the case of:- “***Nguruman Ltd (Supra)”***, the Court of Appeal stated: ***"The balance of convenience test is applied only if the court is unable to make a determination on the first two Giella tests. It is a residual test. It entails a weighing of the harm that would be caused to each party by a refusal or grant of the injunction."*** 1. The doctrine of balance of convenience becomes particularly relevant where granting or refusing an injunction may occasion hardship to either party. It requires the Court to weigh the comparative inconvenience likely to be suffered by each side and determine which course best serves the interests of justice pending the final hearing of the suit. 2. The guiding objective is not to determine the substantive rights of the parties but to preserve the subject matter of the dispute in a manner that minimizes prejudice to either party until the issues in controversy are finally resolved. In this regard, the Court must adopt the course that is least likely to occasion injustice. 3. In the present matter, the Applicant seeks preservation of the status quo pending the hearing and determination of the suit. The orders sought neither confer ownership upon the Applicant nor determine the substantive rights of the parties. They merely restrain further acts of interference with the suit properties until the issues raised in the Plaint can be conclusively adjudicated upon. 4. On the other hand, if the Respondents are indeed undertaking excavation, construction, alienation or subdivision of the suit properties, as alleged and as prima facie demonstrated by the annexed photographs, continuation of such activities may fundamentally alter the character of the land, create third-party interests or occasion environmental degradation that may not be easily reversible. 5. In contrast, should it eventually emerge at the trial that the Respondents possess a lawful claim over the properties, the temporary restraint imposed by an interlocutory injunction would merely have delayed the exercise of their asserted rights without permanently extinguishing them. Such temporary inconvenience is considerably less prejudicial than permitting irreversible changes to the suit property pending trial. 6. The overriding objective of interlocutory relief is to preserve the subject matter of litigation. Courts have consistently held that where ownership of land is disputed, preservation of the property until final determination best serves the ends of justice. 7. Consequently, I find that the balance of convenience overwhelmingly favours preservation of the suit properties pending the hearing and determination of this suit. ***ISSUE No. b). Whether the Plaintiff/Applicant is entitled to the order directing the Officer Commanding Station (OCS), Diani Police Station, to supervise and ensure compliance with the orders of this Court.*** 1. Under this Sub – heading, the Court address the quest by the Applicant whereby she further seeks an order directing the Officer Commanding Station (OCS), Diani Police Station, to supervise compliance with any injunctive orders issued by this Court. 2. The provision of Article 244 of the Constitution sets out the objects and functions of the National Police Service, while Article 245 establishes the office of the Inspector-General, who exercises independent command over the Service, including officers deployed at station level such as the OCS Diani Police Station. Read together with the National Police Service Act, these provisions impose a constitutional obligation on the police to maintain law and order and to render lawful assistance in the enforcement of court orders where called upon to do so. 3. However, it is equally settled that the police are not parties to civil litigation and ought not to be transformed into agents responsible for determining proprietary disputes which are of Civil and not criminal nature. It has always been the policy of this Court, unless otherwise stated, to avoid involving the police in land matters as much as it would be possible. The case scenario, is to have them strictly provide security and nothing more. In the case of:- “***Mariko Ndwiga – Versus - Edith Muthanje [2020] eKLR (Environment and Land Case Appeal No. 19 of 2019):-*** the court held that: ***“The Respondent has prayed for security to be provided during the eviction exercise. Although the Appellant objected to the involvement of the police service in the matter, a distinction has to be drawn between their role as agents of eviction and their role as law enforcement officers. The court’s understanding is that whereas the eviction order is to be executed by appointed court bailiffs, the role of the police service shall be confined to maintaining law and order to enable the court bailiffs to perform their duties. The OCS of Runyenjes Police Station is not expected to undertake the eviction himself. What the Respondent prayed for is merely provision of security. The court is thus satisfied that the order for provision of security is merited.*** 1. In the present matter, the Applicant has exhibited evidence suggesting that the dispute has already attracted police intervention through the report made at Diani Police Station. She also alleges continuing acts of trespass and interference capable of precipitating a breach of the peace. 2. This Court is satisfied that should the injunctive orders herein be disobeyed, there exists a real possibility of confrontation between the parties. In those circumstances, limited police assistance solely for purposes of maintaining law and order and facilitating compliance with the Court's orders is both appropriate and necessary. This accords with the practice of this Court in analogous matters, where orders have been made confining the police role to overseeing enforcement of, or assisting in the implementation of, injunctive and eviction orders, without displacing the court's own adjudicative function. 3. The role of the Officer Commanding Station (OCS), Diani Police Station shall therefore be confined strictly to maintaining peace and ensuring compliance with the orders of this Court. The police shall not undertake eviction, determine ownership, demarcate boundaries, or otherwise interfere with the substantive issues pending determination before this Court. ***ISSUE No. c).*** ***Who should bear the costs of the application?*** 1. It is now well established that the issue of Costs is the discretion of Courts. Costs was an award which was granted to a party at the conclusion of any legal action and proceedings in any litigation. 2. According to the Black Law Dictionary, **“Cost”** is defined to mean:- ***“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. By the events, it means the results or outcome of any legal action or proceedings thereafter. 3. Further, these legal principles were upheld in the Supreme Court case of ***“Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR”*** and the Court of Appeal cases of ***“Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR”*** the Courts held: - ***“………. the basic rule on attribution of costs is that costs follow the event…...it is well recognized that the principles costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting or defending the case”.*** 1. At this stage, the Court has only determined an interlocutory application. The substantive dispute concerning ownership and occupation of the suit properties remains pending for trial. 2. In order to avoid prejudicing the parties before the final determination of the suit, and considering that the Respondents have not participated in the present application, I consider it appropriate that the costs of this application abide the outcome of the main suit. 3. **Conclusion and final orders** 4. Consequently, upon causing an in-depth analysis to the framed issues herein, the Honourable Court on Preponderance of Probabilities and the balance of convenience reaches at the following findings. These are: - 5. **THAT the the Amended Notice of Motion application dated 26th November, 2025 be and is hereby found to be meritorious and hence allowed in the following terms:** 6. **A temporary injunction be and is hereby issued restraining the 1st, 2nd, 3rd, 4th, 5th and 7th Respondents, whether by themselves, their agents, servants, employees, representatives or any person acting under their authority, from entering upon, trespassing onto, excavating, clearing, demolishing, constructing upon, alienating, subdividing, selling, transferring, leasing, charging or in any other manner interfering with Land Reference Numbers Kwale/Diani Beach/Block 1779 and Kwale/Diani Beach/Block 1780, pending the hearing and determination of this suit.** 7. **the Officer Commanding Station (OCS), Diani Police Station, shall provide such security as may be reasonably necessary to ensure compliance with the orders of this Court and to maintain law and order during their enforcement. For the avoidance of doubt, the police shall not determine questions of ownership, possession or boundaries, those issues remaining exclusively within the jurisdiction of this Court.** **b). THAT the parties to comply with the provisions of Order 11 of the Civil Procedure Rules, 2010 WITHIN THIRTY (30) DAYS from the date hereof and the matter shall be mentioned before ELC Court No. 2, Kwale on 23rd September, 2026 for direction on compliance and fixing of a hearing date.** **c). THAT the costs of the application shall abide the outcome of the main suit.** **IT IS ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS… 2ND …. 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. Ms. Meena Patel the Plaintiff/Applicant in Person. 3. No appearance for the 1st,2nd,3rd,4th,5th,6th and 7th Defendant/Respondent