https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5280

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **PETITION NO E005 OF 2025** **IN THE MATTER OF; ARTICLE 19, 20, 21 AND 22 OF THE KENYA CONSTITUTION 2010 – ENFORCEMENT OF BILL OF RIGHTS OF THE CONSTITUTION KENYA** **AND** **IN THE МАТТЕR OF: ARTICLE 47 OF THE CONSTITUTION AND RIGHT TO FAIR ADMINISTRATION** **AND** **IN THE MАTTER OF: ARTICLE 40 OF THE CONSTITUTION AND PROTECTION OF RIGHT TO PROPERTY.** **BETWEEN** **1. HASSAN YUSUF SADI** **2. RASHID MOHAMED** **3. HAMIS KHALFAN MWAMDAGU** **4. EMMANUEL KAHINDI. ……………………………..PETITIONERS** **- VERSUS -** **1. MSAMBWENI DEVELOPMENT CO. LTD…..1ST RESPONDENT** **2. THE CHIEF REGISTRAR OF TITLES………2ND RESPONDENT** **3. THE LAND REGISTRAR, MOMBASA……...3RD RESPONDENT** **AND** **MZEE KALOLE CHULA………. INTENDED INTERESTED PARTY** **RULING** 1. **Introduction** 2. The Honourable Court was tasked to make a determination of twin applications dated 12th February, 2025, by the *HASSAN YUSUF SADI, RASHID MOHAMED, HAMIS KHALFAN MWAMDAGU* and *EMMANUEL KAHINDI,* the 1st, 2nd, 3rd & 4th Petitioners herein. The second Notice of Motion application was dated 3rd July, 2025 by MZEE KALOLE CHULA, the Intended Interested Party. 3. Upon service of the two ( 2 ) applications, they were through filing of relies to be outlined and expounded later in the ruling. 4. The application dated 3rd July, 2025 was undefended. 5. For ease of clarity and reference, the Honourable Court shall be dealing with these applications simultaneously though distinctly in this Omnibus Ruling accordingly. 6. **The Notice of Motion application dated 12th February, 2025 by the Petitioners.** 7. The said application by the Petitioners was filed pursuant to the provisions of Order 40 Rules 1,5 and 10 of the Civil Procedure Rules, 2010, Sections 1A and 3A of the Civil Procedure Act, Cap. 21 and all enabling procedures of the law. The Applicants sought for the following orders:- 8. ***Spent.*** 9. ***Spent.*** 10. ***That the Court be pleased to issue a Conservatory Order restraining the 1st 2nd and 3rd Respondents from by themselves, their agents, their servants and or employees from occupying, alienating, working or in any way whatsoever dealing with that parcel of land known as LR NO. 5022/19 (ORIGINAL 5014/2) KWALE pending the hearing and determination of this Suit.*** 11. ***That the costs of this Application be provided for.*** 12. The application was premised upon the grounds, testimonial facts and averment made out by a 5 Paragraphed supporting affidavit sworn HASSAN YUSUF SADI. He averred as follows that:- 13. He was the 1st Petitioner/Applicant herein, with the full authority, conversant of the facts and hence competent to swear this affidavit. He would rely on the application in support of the instant application. 14. All material times to this suit, the Petitioners/Applicants had been the owners of the suit premises known as LR NO. 5022/19 (ORIGINAL 5014/2) KWALE, (Hereinafter referred to as “The Suit Premises”). 15. The Petitioners/Applicants had been residing on the suit premises since time immemorial as they were born there. 16. The Petitioners/Applicants were worried that the 1st Respondent might seek to evict them from the suit property as threatened. 17. That the Petitioners have been residing on the suit property since time immemorial and they were infact born on the suit property and that their parents were also born on the property. 18. However, the Petitioners were surprised recently when the 1st Respondent claimed to be the registered owner of the premises having conducted a survey. According to them, the 1st Respondents acquired the suit property through suspicious and fraudulent means. 19. The Petitioners/Applicants were further surprised when they undertook an official search which reflected the name of the 1st Respondent as the registered owner. 20. The Respondents actions were other than being fraudulent, illegal and adverse to the Petitioners proprietary rights as they denied the Petitioners peaceful possession of the suit property. 21. Further that the 1stRespondent had now ordered them to vacate the suit property and it necessitated the Petition and application. 22. The Petitioners were bound to suffer irreparable loss of land should the orders sought not be issued. 23. The Petitioners had discovered after scrutiny of the land title register that the Respondents' had without any colour of right whatsoever and secretly in collusion registered a title in their names of the 1st Respondent as the proprietor thereof. 24. The Respondents' action is fraudulent, illegal and are adverse to the Petitioner's proprietary rights by denying the Petitioner peaceful possession of the Suit property. 25. The Petitioners/Applicants stood to suffer irreparable loss if an Order was not given stopping the Respondents' from continuing with their illegal activities. 26. **The responses by the 1st Respondents** 27. In opposing the application, the 1st Respondent filed Replying Affidavit dated 2nd July, 2025 sworn by Colonel Retired JOSEPH NYAGA NGURU, he averred as follows that:- 28. He was a Director of the 1st Respondent herein. 29. There were no third party occupants on any of the 1st Respondent’s land. 30. The land was outside the portions donated to and surrendered to the government for settlement. 31. This was for those who were after vetting found to be on the land and were genuinely entitled to be allotted plots in the sub - division scheme created by the government. 1. Letters from the Ministry of Lands and Settlement and a report by the Regional Surveyor Coast explained what had transpired. 2. Having been a director of the 1st Respondent since the year 1977 none of the Petitioners had ever been in occupation of the suit property. 3. The Petitioners had unsuccessfully and belatedly sought to be enjoined in another civil suit “***Mombasa ELC Cause No 99 of 2014***” purporting to be claimants to the 1st Respondent’s properties. 4. Having failed to meet the threshold off being enjoined in the Mombasa case, they had now come before this honourable court in what the deponent termed as forum shopping. 5. Having obtained conservatory orders while not being present on the suit property, the Petitioners were now threatening to hold a meeting on the 1st Respondents land as per the letter dated 30th June, 2025. 6. The Honourable Court was urged to disallow the application by the Petitioners/Applicants with costs. 7. **The responses by the 2nd and 3rd Respondents** 8. Additionally, the application was opposed by a Replying Affidavit dated 6th May, 2025 sworn by MERCY CHEPKEMOI, the Land Registrar, the County of Mombasa on behalf of the 2nd and 3rd Respondents. She deponed as follows that:- 9. On 19th February, 2025, the Mombasa Lands Registry received a letter reference CIV 52/2025 from the office of the Attorney General, Mombasa requesting their office to furnish the AG with instructions pertaining to I-R NO. 5022(original 5014/2) CR 9477 to enable them to respond to ***“Kwale ELC Petition No. E005 of 2025***”. 10. The records held in the lands office provide that property LR No. 5022 measuring approximately 2126.0 Acres and was more particularly de - alienated on Land -Survey Plan -No. 24280 and was situated in Gazi in Kwale County. 11. The Certificate CR 9477 was an estate in fee simple (freehold interest) and was registered on 1st June, 1950 pursuant to a transfer in the name of JEFFERALLI LAI - JI MAWANI as per the annexed copy of title CR 9477. 12. The suit property (title) had undergone numerous transactions over the years for instance charges, discharges, transfers, caveats, prohibitory orders, compulsory acquisitions, succession and sub - divisions. 13. Further, on 16th October, 1961, a portion of the suit property was compulsorily acquired by the government and an endorsement on variation of the Certificate of Title was entered therein with a new Deed Plan on 22nd June, 1965. 14. It was stated that a Certificate for taking possession was registered on 14th November, 1968 vesting 19.0 acres of the suit property to the government of Kenya through Gazette Notice No. 2045 of 28th April, 1961. 15. A Grant of Probate for the estate of Jefferali Talji Hinji Mowani (deceased proprietor) was issued and registered to Hassanali Lalji AKA Hassanali Lalji Hurji Mowani as the executor on 7th February, 1977. 16. The suit property was transferred to Msambweni Development Company Limited on 7th February, 1977 and which was the current registered owner of the reminder of the suit property following various sub-divisions and transfers of subplots to third parties. 17. The suit property was charged to National Bank of Kenya Limited for a Kenya Shillings Two Hundred Thousand (Kshs. 200,000/-) on the same date of transfer, the property was discharged on 17th October, 1996 and thereafter underwent sub - division where the resultant subplots were transferred to different third parties. 18. On 13th November, 2015, a partition of the suit property I-R 5022/23 measuring 6.383 acres was surrendered to the Government of the Republic of Kenya for a consideration of a sum of Kenya Shillings One Million Nine Hundred and Eighty Five Thousand and Fourty (Kshs. 1,985,040.00/=). 19. On 26th May, 2023, LR Nos. 5022/27 and 5022/25 measuring approximately 21.38 Ha. and 106.0 Ha. respectively were transferred to the Settlement Fund trustee as a gift to the government. 20. From the records held in the lands office, there was no record of the Petitioners/Applicants being the  owners of the suit properties mentioned therein. 21. The application and Petition was thus frivolous, vexatious and an abuse of court process, the Petitioners/Applicants was out on a court forum shopping and ought to be stopped. 22. **The Notice of Motion application dated 3rd July, 2025 by the Interested Party.** 23. The second application by the Interested Party was brought premised upon the provisions of Order 1 Rule 10 of the Civil Procedure Rules, 2010, Section 3A of the Civil Procedure Act, Cap. 21 and all other enabling provisions of the law. The Applicants sought for the following orders:- 24. ***That the Interested Party Applicant on their own behalf and on behalf of the Gazi community and as Chairman of Gazi residents be enjoined as an interested party in the petition/suit herein.*** 25. ***That upon the said joinder this honourable court be pleased to allow the Interested Party Applicant to file an affidavit in opposition to the Petition/ suit herein on the grounds set out in this application.*** 26. ***That in the alternative to the above and without prejudice thereto and upon being enjoined to this Petition/suit as sought in [1] above, the Interested Party Applicant be allowed to adopt his affidavit filed in this application as his substantive affidavit in opposition to the petition/suit and any other interlocutory application filed by the Petitioners within the petition/suit and*** 27. ***That costs of this application be provided for*** 28. The application was based on the grounds, testimonial facts and the averment made under the supporting affidavit of He averred as follows that:- 29. The Interested Party Applicant is and was at all material times the chairman of the committee of Gazi residents and also a resident of Gazi village situated in Msambweni 30. The Interested Party Applicant in his capacity as chairman of the committee of Gazi residents the Applicant was a signatory to a Deed of Settlement entered into in the case of:- ***“Mombasa High Court Civil Suit No 463 of 2010 Juma Charo Mwang’azi & Others - Versus - Msambweni Development Company Limited & Another”*** . 31. Pursuant to which the 1st Respondent Msambweni Development Company Limited donated 306 acres of its land in Gazi to be excised from its property title no LR 5022/26 which 306 acres were surrendered to the government of Kenya for purposes of settlement of the deserving beneficiaries to be identified by the government. 32. The interested party was a member of the team that identified boundaries for plots within the said 306 Acres based on ground verification 33. Neither of the Petitioners/Applicants herein were identified as being entitled to any portion of the said 306 acres or the 1st Respondents land in general. 34. The Interested Party Applicant was aware that neither of the Petitioners/Applicants herein was in fact residents of Gazi in general or the 1st Respondents land or the Gazi village specifically. 35. The Petition/suit herein had no basis and was merely intended to sabotage, scuttle or frustrate the process of issuance of titles to genuine beneficiaries of the 306 acres which process was almost complete and titles ready for distribution. 36. In support of the application was a supporting affidavit sworn by Mzee Kalole Chula the Interested Party/Applicant who averred that he is 55 years old and was born in Gazi Village in Msambweni. 37. The suit property was known to him and it had always been owned by the 1st Respondent herein the Msambweni Development Company Limited. 38. He was at all material times to the suit the Chairman of the committee of Gazi residents and also a resident of the Gazi village situated in Msambweni. 39. In his capacity as chairman of the committee of Gazi residents, he was a signatory to a Deed of Settlement entered into in the civil case of ***“Mombasa High Court Civil Suit No 463 of 2010 Juma Charo Mwang’azi & Others - Versus - Msambweni Development Company Ltd & Another”*** pursuant to which the 1st Respondent Msambweni Development Company Limited donated 306 acres of its land in Gazi to be excised from its property title no LR 5022/26 which 306 acres were surrendered to the government of Kenya for purposes of settlement of the deserving beneficiaries to be identified by the government. 40. He was a member of the team that identified boundaries for plots within the said 306 Acres based on ground verification. Neither of the Petitioners/Applicants herein were identified as being entitled to any portion of the said 306 acres or the 1st Respondents land in general and neither of them was in fact a resident of Gazi in general or the 1st Respondents land or the Gazi village specifically. 41. The Petitioners/Applicants with other people had unsuccessfully been trying to invade the 1st Respondents land and the 306 Acres’ portion since the excision and creation of the settlement scheme by the government of Kenya. 42. The self-explanatory letter from the area chief dated 1st July, 2025 confirmed that the Petitioners/Applicants had never been residents of Gazi Village. 43. She asked the court to allow the application as prayed with costs. 44. **Submissions** 45. The matter was mentioned severally before this court for purposes of giving all the parties involved time to file their respective responses to the two ( 2 ) motions and more specifically the application of the Interested Party. 46. On 9th June, 2025, the court issued further orders for the application dated 12th February, 2025 to be dispensed off by way of written submissions. However, at the time of penning down this Ruling, the parties had never complied with in terms of filing of the submissions and responses to the application dated 3rd July, 2025. 47. Nevertheless, the court had noted that the submissions on record dated 5th December, 2025 were with regards to the Petition and not the applications subject of this ruling. The said pleading will thus be shelved to the time when the court would be rendering its verdict on the main Petition. 48. **Discussions and Determination** 49. Having considered all the pleadings by the Petitioners/Applicants being the application dated 12th February, 2025 and the Notice of Motion application dated 3rd July, 2025 respectively, the replies thereto and attached annextures. 50. For the Honourable Court to arrive at an informed, fair and reasonable decision, it has framed the following three [3) salient issues for its consideration. These are: - 51. ***Whether the Petitioners have made a case for grant of conservatory orders over the suit property as sought in the application dated 12th February, 2025*** 52. ***Whether the application dated 3rd July, 2025 is merited*** 53. ***Who bears the costs of both applications?*** ***ISSUE No. a). Whether the Petitioners have made a case for grant of Conservatory Orders over the suit property as sought in the application dated 12th February, 2025*** 1. Under this sub heading, the Honourable Court will be examining the main substratum of the matter raised from the filed application dated 12th February, 2025. Mainly, the substance and pith of the case was whether to grant of the conservatory orders or not. 2. Before deciding on this issue, it is essential that a brief look at what was the meaning of a Conservatory Order. In the case of:- “***Judicial Service Commission – Versus - Speaker of the National Assembly & another – Petition No.518 of 2013 High Court in Nairobi”****,* Odunga J held: - ***“Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the constitution, the supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.”*** 1. Similarly, in the case of:- “***Mombasa High Court Petition NO.7 of 2011 Muslim for Human Rights (Muhuri) & others – Versus - AG & others”***Hon. Ibrahim J (as he was then) described a Conservatory Order as one which would: - ***“Enable the court to maintain the status quo or existing situation or set of facts and circumstances so that it would still be possible that the rights and freedoms of the claimant would still be capable of protection and trial was not a futile academic discourse or exercise.”****The learned judge went ahead and set out 4 parameters to be applied in considering whether to grant a conservatory order which are: -* ***a. judicious exercise of discretion;*** ***b. establishment of an arguable case which raises serious or fundamental issues;*** ***c. degree of irretrievability, that is whether the application or case will be rendered nugatory if the conservation is not granted;*** ***d. balance of convenience as between the applicant, the respondent and where applicable national or public interest.”*** 1. I entirely agree with the above holdings by my Learned colleagues. However, perhaps what expounded at length the nature and practicability of issuing Conservatory Orders and gave guiding principles on the issue is an excerpt from the case of:- “[***Kenya Small Scale Farmers Forum – Versus - Cabinet Secretary Ministry of Education, Science and Technology & 5 others [2015] KEHC 2109 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/2109/eng%402015-10-19)***”*** where Onguto J. L lined a series of cases which may be stated to have laid down the proper guidelines applicable. According to the Learned Judge this authorities state with precision the principles which govern a court considering an application for interim or conservatory relief:- 1. The Applicant ought to demonstrate “***a prima facie case***” with a likelihood of success and that he is likely to suffer prejudice as a result of the violation or threatened violation if the conservatory order is not granted: *(See “****Centre for Rights Education and Awareness & 7 Others – Versus - The Attorney General HCCP No. 16 of 2011”.***It is not enough to show that the prima facie case is potentially arguable but rather that there is a likelihood of success: see*“****Godfrey Mutahi Ngunyi – Versus - The Director of Public Prosecution & 4 Others NBI HCCP No. 428 of 2015”***and also*“****Muslims for Human Rights and Others – Versus - Attorney General & Others HCCP No. 7 of 2011”.*** 2. The grant or denial of the conservatory relief ought to enhance Constitutional values and objects specific to the rights or freedoms in the Bill of Rights: see ***“Satrose Ayuma & 11 Others – Versus - Registered Trustees of Kenya Railways Staff Benefits Scheme [2011] eKLR”***and also*“****Peter Musimba – Versus - The National Land Commission & 4 Others (No. 1) [2015] eKLR”*.** 3. If the conservatory order is not granted, the Petition or its substratum will be rendered nugatory: see “***Martin Nyaga Wambora – Versus - Speaker of the County Assembly of Embu & 3 Others HCCP No. 7 of 2014”.*** 4. The Public interest should favour a grant of the conservatory order: see the Supreme Court of Kenya’s decision inthe case of:- “***Gatirau Peter Munya – Versus - Dickson Mwenda Githinji & 2 Others [2014] eKLR”.*** 5. The circumstances dictate that the discretion of the court be exercised in favour of the applicant after a consideration of all material facts and avoidance of immaterial matters: see “***Centre for Human Rights and Democracy & 2 Others –- Versus - Judges and Magistrates Vetting Board & 2 Others HCCP No. 11 of 2012”***as well as***“Suleiman – Versus - Amboseli Resort Limited [2004] 2 KLR 589”.*** 2. Guided by the above authorities, I will now embark to establish whether the threshold has been met for grant of conservatory orders pending the hearing and determination of the suit. The Petitioners/Applicants alleged that they are the owners of the suit property and have been in occupation of the suit land since time immemorial. It is alleged that the suit property is ancestral land and that the Petitioners/Applicants had been anticipating allocation of it only to learn that the 1st Respondent had been given preference over them. 3. I have perused the affidavit by the 1st Respondent opposing the application, from the annextures thereto, it is evident that the suit property is registered under the names of the 1st Respondent as from 2nd February, 1977. It is also evident from the title that portions of the suit property were transferred to the government of Kenya from the 1st Respondent and the said transfers were registered properly. 4. From the evidence on record, the 306 Acres surrendered to the government were on a basis of a deed of settlement between the government and the residents of Gazi and which led to the establishment of a settlement scheme. All this issues have been discussed at length in various correspondences between the Ministry of lands and the 1st Respondent and settlement offices and which the court has had the befit of going through. 5. It is noteworthy that despite making claims of occupation of the suit property, the Petitioners/Applicants have not annexed any evidence indicating there pro - longed use and occupation of the property. They simply allege to being in occupation of the same but it is clear that the same has not been demonstrated. Like what activities do they undertake thereon, what developments have they so far made on the property. These are some of the indicators of a prima facie case and which the Petitioners/Applicants have not been able to successfully demonstrate. 6. It is also clear that the Petitioners/Applicants have failed to demonstrate which rights are bound to be violated in the event that the orders sought are not granted. The precision with which the violations are to be outlined has sadly not been met and for that the court is apprehensive in granting the conservatory orders as sought. The court had initially granted prayer no 2 which was for grant of the orders pending determination of the instant application, it will thus automatically lapse pursuant to this ruling. 7. I believe not granting the orders will not render the Petition nugatory as the issue of ownership of the property which is the first declaration being sought by the Petitioners/Applicants is yet to be determined, as such the court opines that the Petition will still be alive despite the rejection of conservatory orders. ***ISSUE No. b). Whether the application dated 3rd July, 2025 is merited*** 1. The gist of the above application is the enjoining of Mzee Kalole Chula as an Interested Party in the Petition. It will inform the discussions under this sub heading. The application has been made pursuant to the provisions of Order 1 Rule 10 of the Civil Procedure Rules, 2010 which provides that:- **“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the court may be necessary in order to enable the court to effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”** 1. The said provision raises two questions. F**irstly,** the stage of proceedings, and S**econdly**, whether the Applicant is a necessary party. On the first question, the rule is apparent that a party may be joined whether as Plaintiff or Defendant or as a necessary party for the effectual and complete adjudication and settlement of all questions involved in the suit. This denotes that there are questions in the suit which are pending **effectual and complete determination**, and that these questions cannot be effectually and completely adjudicated without the presence of the party in the suit, whether as Plaintiff, Defendant or necessary party 2. An interested party is defined in Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (also known as **“The Mutunga Rules**”, as ***“a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation.”*** 3. The definition of the term “**Interested Party**” was also succinctly expressed by Munyao Sila, J in the case of:- “***Marigat Group Ranch & 3 others – Versus - Wesley Chepkoimet & 19 others [2014] eKLR”*** as follows:- ***“For purposes of one who wants to be enjoined as an Interested Party, I think, that such person needs to fit himself into the catch words “whose presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit…It should be appreciated that an Interested Party is not strictly Plaintiff or Defendant. The contest in a suit is between Plaintiff and Defendant and if any person has a claim over the subject matter, then such party needs to apply to be enjoined and considered as Plaintiff or Defendant and not as Interested Party. An Interested Party would be a person who has a close connection to the subject matter of the suit yet not claiming any rights over it,”*** 1. In the case of:- “***Francis Karioko Muruatetu & another – Versus - Republic & 5 others [2016] eKLR (Petition No. 15 of 2015)”****,* the Supreme Court in a ruling dated 28th January, 2016 laid down the principles applicable to the joinder of interested parties as follows:- ***“[37] From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:*** * 1. ***The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.*** 2. ***The prejudice to be suffered by the Intended Interested Party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.*** 3. ***Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.”*** 1. Now applying these legal principles to the instant case. The facts placed before this court by the Intended Interested Party establish that the suit property herein belongs to the 1st Respondent. That initially, the 1st Respondent owned the vast parcel known as LR 5022 before it was sub - divided and portions thereof registered under the Government of Kenya. This was for purposes of settling the residents of Gaza Village. According to the Intended Interested Party, plans for the demarcation of the land transferred to the government were made after creation of a settlement scheme. The beneficiaries to the suit land have already been identified as residents of Gaza and the portions already legally allocated to them. The process of registration to the various parties allocated the land was in its final stages. 2. The Intended Interested Party stated that the Petitioners/Applicants have never been residents of Gazi village and the allegations that the suit property belonged to them was infact a fabrication of lies. The pleadings by the Petitioners/Applicants indicate that this Petition is aimed at declaration that the Petitioners/Applicants are the legitimate owners of the suit property having been in occupation of the suit land for a long time. They infact term the suit property as ancestral land and state that they were born thereon. 3. The Intended Interested party refute this claims, he states that the property has already been sub - divided to the legal beneficiaries of the settlement scheme which are members of the Gaza Village which he heads. In my opinion, it will be important to get a proper history on the occupants of the property before making any substantive declarations as to ownership of the suit property. The Applicant/Intended Interested Party has thus demonstrated that he has an identifiable interest at stake in the Petition. 4. For that reason, his application to be enjoined in these proceedings as an Interested Party should be successful. **ISSUE No. c). Who is to bear the costs of the applications** 1. 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 or proceedings in any litigation. The provision of Section 27 (1) of the [Civil Procedure Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1924/3), Cap. 21 holds that costs follow the events. By event it means the results or outcome of the legal action or proceedings. 2. The case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and fundamental Freedoms practice and Procedure Rules 2013) provides: - **“(1) The award of costs is at the discretion of the Court.** **(2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.”** 1. To support this legal preposition, the Court made reference to several cases. See the decisions of Supreme Court *“****Jasbir Rai Singh – Versus Tarchalan Singh” eKLR (2014)”*** and *“****Cecilia Karuru Ngayo – Versus – Barclays Bank of Kenya Limited, eKLR (2014)”*.** 2. However, given the circumstances of this suit I order that each party bears its own costs. 3. **Conclusion & Finding** 4. Consequently, upon causing an indepth anaylsis to the framed issues herein, the Honourable Court on the principles of Preponderance of Probabilities and the balance of convenience arrives at the following conclusion:- 5. **THAT the Notice of Motion application dated 12th February, 2025 be and is hereby dismissed for lacking in merit.** 6. **THAT the Notice of Motion application dated 3rd July, 2025 be and is hereby allowed as prayed in terms of Prayer 1 of the application.** 7. **THAT each party to bear its own costs for both applications.** **IT IS ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS** **VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS** **……27TH ………. 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. Okumu Advocate holding brief for Mr. Magolo (Snr) Advocate for the 1st, 2nd, 3rd & 4th Petitioners. 3. Mr. Wasike Advocate holding brief for Mr. Kimani Advocate for the 1st Respondent. 4. M/s. Kiti Advocate for the 2nd & 3rd Respondents.