Suleiman & 5 others v Kivuva (Civil Suit E030 of 2025) [2026] KEELC 3540 (KLR) (5 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **CIVIL SUIT NO. E030 OF 2025** **MZEE SHEE SULEIMAN** **RIZIKI CHIZI ABDALLA** **ISSA HAMISI MWAMANONO** **HASSANI HAMISI VIIRI** **BAKARI OMAR CHAPA** **MWINYI ATHUMANI MWANDONGA ………… PLAINTIFFS** * **VERSUS -** **HESBORN MBITHI KIVUVA ………………………. DEFENDANT** **RULING** 1. **Introduction** 2. The Ruling by this Honourable Court is in relation to the Notice of application dated 7th April 2025.*MZEE SHEE SULEIMAN, RIZIKI CHIZI ABDALLA, ISSA HAMISI MWAMANONO, HASSANI HAMISI VIIRI, BAKARI OMAR CHAPA and MWINYI ATHUMANI MWANDONGA*, the 1st, 2nd, 3rd, 4th, 5th and 6th Plaintiffs/Applicants herein.Tit was brought pursuant to the provisions of Articles 40, 47 and 159 of the Constitution of Kenya 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21, Order 40 Rules 1, 2, 3 and 4, Order 51 Rule 1 of the Civil Procedure Rules, 2010 of the Laws of Kenya, and all enabling provisions of the laws. 3. Upon service, the application was opposed by Defendant/Respondent through a Replying Affidavit sworn by *HESBORN MBITHI KIVUVA* and dated on 28th November, 2025. 4. **The Case by the Plaintiffs/Applicants** 5. The Plaintiffs/Applicants sought for the following orders: - 6. ***Spent.*** 7. ***Spent.*** 8. ***That this Honourable court be pleased to issue a temporary injunction restraining the Defendant/ Respondent by his servants, agents, and/or any other person claiming under them from conducting a survey, sub - dividing, evicting, alienating, dispossessing the Plaintiff from the suit land unsurveyed unregistered parcel of Land measuring 7.0 Ha or thereabout (Hereinafter referred to as “The Suit Property”) situate in Ng’ombeni area within Kwale County lying peripheral and/or next to the Ng’ombeni Settlement Scheme or in any other way interfering with the Plaintiffs’ quiet possession thereof pending the hearing and determination of the main suit.*** 9. ***That costs of this Application be provided for.*** 10. The application was premised upon the grounds, testimonial facts and the averments made out the 13 Paragraphed sworn by the 1st Plaintiff/Applicant MZEE SHEE SULEIMAN, together with annextures marked as “A” & “B” annexed thereto. The deponent averred as follows that:- 11. He was the 1st Plaintiff/Applicant herein well versed with the facts herein and duly authorised and thus competent to swear this affidavit on behalf of the Plaintiffs/Applicants herein. 12. The Plaintiffs/Applicants were born and raised in Ng’ombeni area on that unsurveyed unregistered parcel of Land measuring 7.0 Ha or thereabout lying peripheral and/or next to the Ng’ombeni Settlement Scheme. 13. They had developed the suit property with permanent and/or semi-permanent structures living thereon with their children of a tender age and/or elderly parents who were entirely depending on them. 14. They had further utilized part of the remaining property for the farming of food crops and/or animal keeping as a source of livelihood and/or food in raising their families and/or children of tender age and/or school going age. 15. Their occupation of the suit property with no interference from any person and/or any state agency since time immemorial until sometimes in the month of July, 2024 when the Defendant/Respondent herein turned up at the suit property in the company of persons claiming to be police officers and was claiming ownership over the said suit property. 16. The Defendant/Respondent and the alleged police officers meted violence on the Plaintiffs/Applicants and/or their family members threatening to demolish the structures prompting the intervention by the neighbours. 17. On the 5th April, 2025 the Defendant/Respondent went back to the suit property in the company of police officers drawn from Ng’ombeni Police Patrol base demolished part of that house belonging to the 2nd Plaintiff/Applicant herein and/or arrested several persons from the suit property notably the spouse to the 1st Plaintiff/Applicant who was later on released and had never to this moment been charged with any offence. 18. The Plaintiffs/Applicants are apprehensive of an eviction hence the interim orders sought are to restrain the harassment, eviction and/or demolition of their houses as such pending the hearing and determination of the application and/or suit. 19. The Defendant/Respondent stood not to be prejudiced in anyway. 20. **The Responses by the Defendant/Respondent** 21. While opposing the application, the Defendant/Respondent filed an 11 paragraphed Replying Affidavit. The Affidant stated that:- 22. He was the Defendant/Respondent herein and therefore competent and duly authorised to swear this Affidavit in response to the application. 23. He denied all the issues as raised in the application on there being threats of eviction to the Applicants or to any persons purportedly occupied the alleged “Unsurveyed and Unregistered parcel of land measuring 7,0 HA” as claimed in the application. 24. The Applicants had failed to properly identify the alleged property and which renders the application fatally defective, frivolous and an abuse of the court process. 25. He had never at any one time hired goons, engaged security officers, demolished structures, or participated in any acts of violence, intimidation or unlawful eviction as falsely alleged by the Plaintiffs/Applicants. 26. The allegations of threats, violence, demolitions of house and interference with the Plaintiffs/Applicants occurrence were baseless, malicious, fabricated and the intended to mislead the Court into issuing unwarranted orders against him. 27. He was not a party to the suit property described by the Plaintiffs/Applicants. He had no ownership interest, claim, control or connection to the alleged suit property described by the Applicants as “Unsurveyed, Unregistered parcel of land measuring 7.0 HA” situated in Ng’omeni area. 28. He was a stranger to the allegations and the issues being raised by the Plaintiffs/Applicants. 29. It was averred that the prayers sought for temporary injunction could not lawfully issue against the Defendant/Respondent as the Plaintiffs/Applicants had failed to establish any prima facie case against him as there was no identifiable proprietary or identifiable interest in a known parcel or any acts of omissions on the Defendant/Respondent part that warrant injunctive reliefs. 30. The application was fatally defective, frivolous and an abuse of the Court process. 31. The court was urged to dismiss the application with costs. 32. **Submissions** 33. On 11th February 2025, in the presence of all the Learned Counsels for the Plaintiffs/Applicants and Defendant/Respondent herein, the Honourable Court directed parties to canvass the matter by way of written submissions. 34. Unfortunately, at the time of writing this ruling and checking from the Judiciary CTS Portal and the ELC Registry, only the Defendant/Respondent had complied with the said order. 35. Thus, the Honourable Court proceeded to render its verdict on 5th May, 2026 on its own merit whatsoever. 36. **The Written Submissions by the Defendant** 37. The Law firm of Messrs. Fatma Mkungu & Co Advocates filed their written Submissions dated 15th December 2025 on behalf of the Defendant/Respondent. M/s. Mkungu Advocate commenced their submissions by providing a brief background of the matter. 38. The Learned Counsel depended on two ( 2 ) identified issues for determination. Firstly, whether theNotice of Motion application dated 7th April, 2025 by the Plaintiffs/Applicants/Plaintiffs has merit. The Learned Counsel averred that a prima facie case needed to be established in order for the instant application to had merit. That an applicant had to demonstrate the existence of a recognizable legal right which has apparently been infringed by the respondent, thereby calling for rebuttal by the Court. The burden always rests upon the Applicants to demonstrate the existence of an identifiable legal right; a Violation or threatened violation by the Defendant; and a connection between the Defendant and the alleged wrongful acts. 39. The Learned Counsel submitted that the Defendant has denied threatening, evicting, or interfering with the Applicants. No evidence links the Defendant to the alleged acts. The Applicants have not shown that the Defendant owns, occupies, controls, or claims the alleged land. Reference was made to the case of “***East African Development Bank – Versus - Hyundai Motors Kenya Limited [2006] eKLR”*** on the threshold to be met for grant of injunctive orders. 40. According to Learned Counsel for the Respondent, whereas the Applicants allege interference with an ***“unsurveyed and unregistered parcel of land measuring approximately 7.0 hectares situated in Ng’ombeni area.***”, the alleged land has no title number no survey plan, registry index map, or identifiable boundaries have been produced. The property remains unknown and incapable of identification. 41. It was submitted that the court cannot issue injunctive orders over land that is vague, undefined, or legally unascertainable. The failure to properly describe the suit property renders the Application defective and incapable of enforcement. Without identification of the subject matter, no proprietary right capable of protection can arise. That granting such orders would be prejudicial to the Respondent who is an innocent party. 42. Secondly, whether the parties were entitled to the relief sought. The Learned Counsel submitted that a case has not been made for grant of the orders sought. That granting orders in such circumstances would unjustly prejudice an innocent party and amount to misuse of the Court’s equitable jurisdiction. In conclusion, the respondent submitted that the Applicants had failed to establish a prima facie case, Irreparable injury and the grounds warranting injunctive relief because: * 1. The alleged suit property is unidentified and unascertainable in law; 2. No proprietary interest capable of protection has been demonstrated; 3. The Defendant is a stranger to the alleged land; 4. No act of trespass, threat, or interference has been proved against the Defendant. 43. The court was urged to dismiss the Applicants’ Notice of Motion application dated 7th April, 2025 with costs. 44. **Analysis & Determination.** 45. I have carefully read and considered the pleadings herein by the Applicants and respondent , the relevant provisions of [the Constitution](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution) of Kenya, 2010 and statutes. 46. In order to arrive at an informed, just, equitable and reasonable decision, the Honorable Court has framed the following three [3] issues for its determination. These are: 47. ***Whether the Notice of Motion application dated 7th April 2025 by the Plaintiffs/Applicants was merited?*** 48. ***Whether the parties herein were entitled to the reliefs sought,*** 49. ***Who bears the costs of the application dated 7th April 2025?*** ***ISSUE No. a). Whether the Notice of Motion application dated 7th April 2025 by the Plaintiffs/Applicants was merited?*** 1. Under this sub - title, the Honourable Court shall examine the merits of the application and whether the prayers sought and in particular granting of temporary injunctive orders can issue. 2. The Law governing injunction and where the application herein is premised is 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 1** **Where in any suit it is proved by affidavit or otherwise—** **a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or** **b) that the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.** 1. 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.”*** 1. 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”.*** 1. 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”*** 1. **It has been stated here that the suit property herein is unregistered and unsurveyed. From the evidence in the affidavit in support of the application, the Applicants alleged to have been born and raised on the suit property and extensively developed it.** In my view, the land falls on all fours within the meaning of Article 63(2) of [the Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution) on ancestral land**. The Applicants at Paragraph 4 of the affidavit in support of the application averred that they have utilised the suit property for farming of food crops and animal keeping as a source of livelihood. At paragraphs 5 to 8 of the affidavit, it has been alleged that the Defendant/Respondent has attempted to forcefully evict them from the property and hence the need to have the orders sought put in place.** 2. **These allegations have been vehemently opposed by the Defendant/Respondent who stated that he did not have any interest in the property and had at no given time sought to have the parties evicted and /or displaced. He alleged that the Applicants were unsure of the property they were in based on the description given to court with regards to the identification of the same.** 3. **At this point, the court is guarded from wading into establishing the ownership of the suit property, this is an issue that is preserved for final determination after proper analysis of evidence and hearing of witnesses. Whether the suit property is *“Unsurveyed or Unregistered”* at this interlocutory moment is premature – a non issue - and/or immaterial as far as I am concerned What is a fact and not disputed is that the land exists by all means. Nonetheless, it would mean further analysing documentary evidence step by step in order to establish root of registration if any see “*Caroline Awinja Ochieng & Another – Versus - Jane Anne Mbithe Githu & 2 Others (2015) EKLR”*** and which exercise the court cannot engage it at this juncture. 4. **Therefore, in all fairness and from the surrounding facts and inferences herein, the Honourable Court will not proceed to examine the issue of the description of the suit parcel at the moment as one thing is for sure, that the parcel is in existence and is occupied by the Applicants. Despite denying the allegations of threatening the Plaintiffs/Applicants with violence, the court notes that a copy of a notice compelling attendance was served upon one Binti Kassim Mwamboka [a spouse to the 1st Applicant] summoning her to the DCI Kwale offices for further investigations on charges of forcible detainer. The notice was attached to the application Thus, the apprehension on eviction and further demolition of their property is founded and has been established by this notice and cannot be wished away by this Court. The Court may want to give the Defendant/Respondent some benefit of doubt to the effect the said allegations may not necessarily perpetrated by him, but the state of affairs on the suit land might not be assumed. Certainly, the acts of omission and commission pertaining to threats did occur. Clearly, the court is convinced that a prima facie case has been established.** ***ISSUE No. b). Whether the parties herein were entitled to the reliefs sought.*** 1. Under this sub – heading, the Honourable Court having elaborately spelt out all the prerequisite ingredients for granting an injunction, will examine whether the parties are entitled to the reliefs sought herein. The Plaintiffs/Applicants have sought for holding whether they would be suffer irreparable damages, entitled to permanent injunction upon the final determination of the suit, general damages, costs among others. 2. To begin with, its whether the Plaintiffs/Applicants are bound to suffer irreparable damage and loss in the event that the orders sought are not granted. I first wish to reiterate the dictum of the court in the case of:- “***Robert Mugo Wa Karanja – Versus - Ecobank (Kenya) Limited & Another [2019) eKLR”***where the court in deciding on an injunction application stated:- **“circumstances for consideration before granting a temporary injunction under Order 40 rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...”** 1. Additionally on this legal issue, the Honourable Court has sought solace from Lord Diplock in the case of:- “**American Cyanamid Company – Versus - Ethicon (1975) ALLER 504”,** held that:- **"The governing principle is that the court should first consider whether if the Plaintiff were to succeed at the trial in establishing his rights to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the Defendant continuing to do what was sought to be enjoined between the time of Application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the Defendant would be in position to pay them, no interlocutory injunction should normally be granted"** 1. The Plaintiffs/Applicants are apprehensive that in the event that the Defendant/Respondent’s actions are not stopped, they are probably going to lose their properties. I have seen the photographs of several structures and developments put up on the suit property as from the photographs annexed to the application. It is noticeable that some of them are permanent structures and prove occupation and use of the property in question. I believe that the second threshold for grant of the orders sought has been made. It is imperative of the court to protect the Applicants from loss and to further preserve the suit property pending the hearing and determination of the suit. 2. From the foregoing, the balance of convenience automatically tilts towards the Plaintiffs/Applicants. The case of “***Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (2018) EKLR”***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. Similarly, I am guided further by the holding in the case of: “***Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR”***where the Learned Judge offered further elaboration on what is meant by balance of convenienceand 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. Further, among the many purposes of granting temporary injunctive orders is the preservation of matters in status quo until the questions to be investigated in the suit are finally disposed of. See “***Kiyimba Kaggwa – Versus - Katende (Civil Suit No .2109 of 1984)*** [***[1985] UGIICCD 1***](https://ulii.org/akn/ug/judgment/ugiiccd/1985/1) ***(23 April 1985)’*** 2. Consequently, I am convinced that there is a lower risk in granting orders of temporary injunction than not granting them pending the hearing and determination of the suit on merit. ***ISSUE No. c]. Who bears the costs of the application dated 7th April 2025?*** 1. It is now well established that the issue of Costs is at the discretion of the Court. Costs is the award that a party is granted at the conclusion of any legal action and proceedings in any litigation. The provision of Section 27 of the Civil Procedure Act provides that costs should follow the event. By the event it means the result or outcome of the legal action. 2. In the famous case of:- “***Reid, Hewitt & Co -Versus - Joseph, AIR 1918 Cal 717 and Myres – Versus - Defries (1880) 5 Ex D 180, the House of Lords noted that: -*** ***“The expression ‘costs shall follow the event’ means that the party, who, on the whole, succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it.”*** 1. Additionally, in the case of:- ***“Farah Adwa Gullet – Versus - CMC Motors Group Limited [2017] eKLR”*** the Court of Appeal held:- ***“…it is our finding that the position in law is that costs are at the discretion of the Court seized of the matter with the usual caveat being that such discretion should be exercised judiciously, meaning, without caprice or whim and on sound reasoning.”*** 1. Given the circumstances of what is presently before this court, the court opines that it will be Just, Fair, Reasonable and Proper for each party to bear its own costs. 1. **Conclusion and Disposition** 2. Consequently, upon conducting an elaborate analysis of the issues set out herein, this Honourable Court based on the principles of Preponderance of Probabilities and the Balance of Convenience, hold that the Plaintiffs/Applicants have managed to establish their case and hence proceed to make the following specific orders:- 3. **THAT the Notice of Motion application dated 7th April, 2025 be and is hereby found to be meritorious and hence allowed.** 4. **THAT an order of temporary injunction be and is hereby issued restraining the Defendant/Respondent by his servants, agents, and/or any other person claiming under them from conducting a survey, sub - dividing, evicting, alienating, dispossessing the plaintiff from the suit land unsurveyed unregistered parcel of Land measuring 7.0 Ha or thereabout situate in Ng’ombeni area within Kwale County lying peripheral and/or next to the Ng’ombeni Settlement Scheme or in any other way interfering with the Plaintiffs’ quiet possession thereof pending the hearing and determination of the main suit.** 5. **THAT for expediency sake, there be a Pre – Trial Conference conducted on 28th September, 2026 in accordance to the provision of Order 11 of the Civil Procedure Rules, 2010. There be a hearing date on 18th January, 2027 preferably through Physical means.** 6. **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 COURT** **AT** **KWALE.** **Ruling delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Mkungu Advocate for the Defendant/Respondent. 3. No appearance for the 1st, 2nd, 3rd, 4th, 5th & 6th Plaintiffs/Applicants.