https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2935

Waqf of Mohamed Seiban Mosque (Suing through its Trustee and Chairperson Salim Said Sieban) v Wanje & 11 others (Environment and Land Case E067 of 2025) [2026] KEELC 2935 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEELC 2935 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case E067 of 2025 EK Makori, J May 18, 2026 Between Waqf of Mohamed Seiban Mosque (Suing through its Trustee and Chairperson Salim Said Sieban) Plaintiff and Oscar Wanje 1st Defendant Bashir Omar Abdalla 2nd Defendant Salim Omar Awadh 3rd Defendant Said Abubakar Abas 4th Defendant Khalfan Omar Awadh 5th Defendant Salim Abubakar Abbas 6th Defendant Hashim Idd Khalfan 7th Defendant Riziki Salim Alfan 8th Defendant Saumu Iddi Alfan 9th Defendant Amina Abubakar Abasi 10th Defendant Salma Idd Alphan 11th Defendant Al-fauz Muslim Football Club through Abdalla Omar, Rashid Hamis Said Swaleh Said, Johanes Mangisi, Kai Fadhili 12th Defendant Ruling 1.That the Applicants filed their motion dated June 11, 2025, seeking the following orders:a.Spentb.That a temporary injunction be issued restraining the 1st to 12th defendants/respondents, either by themselves, their agents, employees, servants, or any other person acting under their instructions, from continuing to trespass, encroach upon, or otherwise interfere in any manner whatsoever with the plaintiffs' quiet possession, use, and enjoyment of portion Number 87 Malindi, pending the hearing and determination of this application.c.That a temporary injunction be issued restraining the 1st to 12th defendants/respondents, either by themselves, their agents, employees, servants, or any other person acting under their instructions, from continuing to trespass, encroach upon, or otherwise interfere in any manner whatsoever with the plaintiffs' quiet possession, use, and enjoyment of portion Number 87 Malindi, pending the hearing and determination of this suit.d.That the Officer Commanding Station (OCS) of Malindi Police Station be and is hereby directed to provide necessary security and enforcement to preserve the sanctity of the subject land and to ensure compliance with any orders issued herein.e.That the costs of this application be provided for. 2.The Respondents filed Notice of Preliminary Objection (PO)dated 16th July 2025:a.This suit was instituted in the wrong court at the first instance, a court without jurisdiction.b.This Court has no jurisdiction at the first instance to hear and determine this suit because: (a) Section 29 of the Waqf Act, Chapter 109, concerns Dispute Resolution. It provides that any matter or dispute relating to Waqf shall, in the first instance, be referred to a Kadhi's Court.c.This suit concerns a land dispute that is alleged to be registered under the Waqf of the Mohamed Seiban Mosque.d.The Plaintiff first ought to have referred the disputes to the Kadhi's Court before coming to the ELC Court.e.The Plaintiff has bypassed the statutory requirement outlined in the said Waqf Act, Chapter 109, and has rushed to file this suit in the wrong court.f.The Plaintiff's suit and the Application are premature before this Honor Court because the Plaintiff/Applicant failed to exhaust the remedies available under the Waqf Act for dispute resolution.g.The suit is an abuse of the court process.h.Therefore, the entire suit cannot be sustained and is bad in law, fatally defective, incurable, misconceived, and an abuse of the Court process. 3.The application was canvassed through written submissions. I acknowledge receipt of submissions from counsel representing the parties with much appreciation, as they went a long way toward assisting this Court in reaching a verdict concerning the issues raised in respect of the pending PO and the application for an interlocutory injunction. 4.Based on the materials and submissions before me, the issues for this Court's determination are whether this Court has jurisdiction to entertain the matter, whether a temporary injunction should be issued pending the hearing and determination of this suit, and who should bear costs. 5.As submitted by the counsel representing the parties, jurisdiction is everything; without it, the Court cannot proceed further but downs tools. See Owners of Motor Vessel “Lilian S" v Caltex Oil (Kenya) Limited (1989) IKLR. 6.The Respondents argue that the Plaintiffs' suit is premature before the Court because the Plaintiffs did not exhaust the remedies available under the Waqf Act, Chapter 109, and, more specifically, under Section 29 of that Act. 7.The Respondents contend that the Waqf Act provides that any matter or dispute relating to a Waqf shall, in the first instance, be referred to a Kadhi's Court. They further contend that the subject matter herein is Waqf property managed under the guidelines of the Muslim faith and that, accordingly, the dispute herein ought to have been referred to the Kadhi's Court first, as that court is better placed to handle and determine the dispute, which is purely of a religious nature. 8.They cite the case Gregory Muthinja Kabiru & 2 Others Vs. Samuel Munga Henry & 1756 Others (2015) KLR, which states that: It is essential that when a dispute resolution process exists outside the courts, it be fully used before turning to the courts. Courts should be a last resort, not the first option when conflicts arise. The exhaustion doctrine is valid because it delays judicial intervention, encouraging parties to pursue resolution through available mechanisms outside the courts diligently. 9.On the other hand, the Applicants submit that the PO is not merited, and that this Court, pursuant to Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, has the primary mandate to deal with matters touching on the use, occupation, and title to land, and that Section 29 of the Kadhis’ Court Act cannot deprive the Court of that jurisdiction. 10.Plaintiff avers that it is the legal, absolute, and indefeasible registered proprietor of all that parcel of land known as Portion Number 87, situated in Malindi, Kilifi County, measuring approximately 3.122 acres, and registered under Coast Registry LT.18, Folio.194, File. 344. The Plaintiff holds a good title to the said land and has exercised open and peaceful possession for over 80 years. The aforementioned title was procured pursuant to a legal and procedural transfer and registration many decades ago. Since then, the Plaintiff has retained uninterrupted proprietary control over the said land, using and preserving it in furtherance of its religious and charitable mandate. 11.The Plaintiff asserts that in their affidavit in opposition to the application for an injunction, they concede that the issue at hand concerns the said land and its use. 12.Plaintiff concludes that the issue at hand concerns title to and use of the land, and that this is the primary Court to hear the matter, not the Kadhis Court; hence, the PO is not germane. 13.The purpose of raising a PO is to resolve the case instantaneously without going to a full trial. The test for a PO, as established by the parties' submissions, is outlined in the seminal case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696. It is a point of law that, when pleaded or clearly implied, may result in the dismissal of the suit if argued effectively. It is comparable to a demurrer, which challenges the legal sufficiency of an opponent's pleading. However, it cannot be invoked when facts require clarification or when it necessitates the exercise of judicial discretion. 14.The PO is based on Section 29 of the Waqf Act, which designates the Kadhis Court as the primary forum for resolving Waqf matters. The first instance forum is the Kadhis Court, not the ELC. The section provides:“Any matter or dispute relating to a waqf shall in the first instance be referred to a Kadhis' court.” 15.The term Waqf denotes detention and signifies the detention of property in the ownership of God, the total extinction of the founder's ownership, and the appropriation of usufruct for the objects recognized by Islamic Law as pious, religious, or charitable – see Section 2 of the Waqf Act. 16.The Waqf Act provides for the establishment of the Waqf Commission; the administration of waqf property; and connected purposes. Section 29 of the Act then provides that any matters relating to a Waqf should be dealt with by the Kadhis Court as the primary Court of call, not the ELC. 17.When viewed alongside the Constitution and the ELC Act, it becomes clear that the Environment and Land Court (ELC) generally does not have the authority to hear cases related to the validity, creation, or management of a waqf. Such religious and personal-status issues are solely within the jurisdiction of the Kadhi's Courts, as prescribed by the Kenyan Constitution and the Waqf Act. See Hamed v Mohamed & another [2025] KEELC 1021 (KLR). 18.However, the ELC has the authority to hear cases related to land under a waqf in specific situations: pure land and title disputes involving conflicts over land allocation or ownership titles between a waqf and third parties, provided they do not require interpreting Islamic endowment laws. Eviction and trespass cases arise when trustees or authorized caretakers attempt to remove illegal squatters, allowing the ELC to conduct eviction proceedings and uphold property rights. Environmental violations, including instances of environmental harm, public nuisance, or pollution affecting the land, fall within the ELC’s jurisdiction regardless of whether the land is under a waqf. See the decisions in Waqf Commissioners of Kenya v Kabundu Holdings Limited [2024] KEELC 13887 (KLR) and Aly (As Trustee of the Waqf of Ali Bin Mohamed alias Muses Mohamed & 2 others v Islamic Foundation (Civil Appeal E064 of 2023) [2026] KECA 62 (KLR) (30 January 2026) (Judgment). 19.At the end of the day, the ELC will be asked to establish ownership of the suit property between the warring parties and issues relating to the protection of the suit property from trespassers. The ELC will not be dealing with the establishment and management of the Waqf in question. It will deal, as I have said, with the ownership, title, and use of the disputed property, allegedly endowed to the Plaintiff now under invasion. 20.In my opinion, the jurisdiction of the ELC shall not be ousted by Section 29 of the Act, and accordingly, the PO lacks merit and is hereby dismissed. 21.Regarding whether to issue a temporary injunction at this stage, the Plaintiff contends that, as the legal and absolute owners of the suit property, they are entitled to injunctive relief arising from the Defendants' activities. 22.It is averred that, over time, the Plaintiff, in furtherance of its charitable and religious values, granted strictly informal, temporary, and revocable access to certain members of the local community, notably youth football groups, to use a small, clearly defined portion of the land for weekend recreational activities. This gesture was neither contractual nor did it confer any proprietary rights, interest, leasehold, license, or tenancy. It was purely a discretionary act of goodwill, and such use was sporadic, supervised, and always subject to the Plaintiff's overriding control. 23.That the 1st Defendant is a Member of the County Assembly (MCA). He has played a central role in inciting members of the public and others to unlawfully enter, settle on, and assert false claims to the Plaintiff's land. He has gone so far as to organize and hold meetings on the suit property without the Plaintiff's consent and to use social media and community forums to propagate defamatory allegations about the Plaintiff's title. 24.That on or about September 12, 2024, a group of individuals, led by the 1st, 2nd, 3rd, and 11th Defendants, including players and sympathizers of a football club, unlawfully broke the Plaintiff's fence and entered the suit land. During the invasion, they uprooted indigenous trees, trampled flora, and caused environmental damage. The incident was reported at Malindi Police Station and recorded under OB No. 29/12/09/2024. 25.The 2nd to 10th Defendants allege that they are representatives of the estate of the late Mselem Bin Salum and purport to claim a beneficial interest in the suit property through succession. However, they have neither produced a valid grant of letters of administration nor a grant of probate to demonstrate legal capacity to represent the estate. Further, no documentary evidence, whether historical, proprietary, or administrative, has been presented linking the estate of Mselem Bin Salum to ownership, occupation, or beneficial control of Portion Number 87 Malindi. 26.The Plaintiff details the trespass activities and destruction being undertaken by the Defendants on the suit property with photographs of the damages being undertaken by the Defendants. 27.Plaintiffs submit that the three-pronged test in Giella v Cassman Brown & Co. Ltd [1973] EA 358, a landmark Kenyan legal case that established the authoritative test for granting interlocutory injunctions, has been met in this matter. Under this test, an applicant must establish a prima facie case with a probability of success, show that they will suffer irreparable loss, and, if in doubt, the balance of convenience must favor them. 28.On the other hand, the Defendants assert that the Applicants have not proved that the Waqf is registered, which further weakens the Plaintiffs' case. Your Lordship, we submit that the Applicants have not exhibited any document relating to the alleged Waqf in relation to the suit property and therefore cannot come to Court seeking legal protection they have not proved they deserve. 29.That the 2nd to 12 Respondents have been on the land for many years, as shown by their Reply and further affidavit. The Respondents have used the land for over 80 years, from their great-grandparents to the current generation, while the Applicant was nowhere to be seen. The Respondents' stay and use of the suit property have been uninterrupted until recently, when the Applicant surfaced and brought this claim in court. 30.Granting the injunction as sought by the Applicant shall be prejudicial to the Respondents, who have been using the suit premises and conducting their religious activities there for the benefit of the Islamic community and the Ganda community at large. Therefore, restraining them shall cause them loss and damage. 31.The Applicant stands to suffer no loss, as he has not used the property at any time, having surfaced only in 2023. 32.That if the Court rules against the PO, the Respondent prays for orders of status quo pending the hearing and determination of the matter, allowing the parties to ventilate their issues at the full hearing. 33.For an interlocutory injunction to issue, Order 40 Rule (1) of the Civil Procedure Rules states as follows:“Where in any suit it is proved by affidavit or otherwise—(a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; 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.” 34.As submitted by the parties with whom I agree, the principles for the issuance of interlocutory injunctions were articulated in the well-known case of Giella v Cassman Brown & Company Limited [1973] EA 358 and reiterated in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, where the Court of Appeal held that:“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;(a)establishes his case only at a prima facie level,(b)demonstrates irreparable injury if a temporary injunction is not granted, and(c)allay 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 steps are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially.” 35.A prima facie case is defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, where the Court of Appeal held as follows:“The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are, first, an applicant must show 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 adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience...A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true that the Court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence...The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case. It would be in the appellant’s interest to adopt a genuine and arguable case standard rather than one of a prima facie case, the former being the lesser standard of the two...In civil cases a prima facie case is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.” 36.Central to this application, as deposed by the Applicant, is the likely wastage and alienation of the suit property before this matter is determined. 37.Applicant produced ownership document of the suit property and instruments to show the founder's ownership, was endowed to the Plaintiff for the detention of the property in the ownership of God, the total extinction of, and the appropriation of usufruct for the objects recognized by Islamic Law as pious, religious, or charitable purposes. 38.On the other hand, the Respondents agree to that and assert that they have a right to use that property as descendants of the donor of the Waqf and that they have been its custodians for over 80 years. They have been seeking the property documentation to no avail, and the Trustee only recently resurfaced with the ownership documents. However, the Respondents produced nothing to that effect. 39.As appears from the Applicant's affidavit, there is a sustained effort to alienate the suit property orchestrated by the area MCA. There has also been sustained wastage of the suit property, including cutting down trees and the fence around it, as well as attempts to take possession of it. 40.These acts need to be stopped until the matter is heard and determined. 41.As agreed by both parties, the property is occasionally used for football matches by the area youth. 42.In my view, these football activities have been ongoing and do not in any way alter ownership of the suit property. I will then issue temporary injunctive orders to preserve the substratum of the suit property pending a hearing on the main suit, as follows:a.That a temporary injunction be issued restraining the 1st to 12th defendants/respondents, either by themselves or through their agents, employees, servants, or any other person acting under their instructions, from continuing to trespass, encroach upon, or otherwise interfere in any manner with portion Number 87 Malindi, pending the hearing and determination of this suit.b.That the use of the said property shall be for football matches by the youth of the area, as will be occasionally permitted by the Applicant.c.That the Officer Commanding Station (OCS) of Malindi Police Station be and is hereby directed to provide necessary security and enforcement to preserve the sanctity of the subject land and to ensure compliance with any orders issued herein.d.That the costs of this application will be in the cause. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 18TH DAY OF MAY, 2026.E. K. MAKORIJUDGEIn the presence of:Ms. Mugambi for the ApplicantMs. Otieno for the 2nd to 11th RespondentsKendi: Court AssistantIn the absence of:Mr. Omwancha for the 1st Respondent