Kulumba & 39 others v Tungu & 2 others (Land Case E047 of 2024) [2025] KEELC 41 (KLR)
The bottom line
#A Mombasa court protected 40 families from eviction pending trial, but clarified that only Kenya's Land Registrar can restrict dealings on registered land.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants established a prima facie case with a probability of success
Yes - the applicants who claimed interests by adverse possession after some 60 years of occupation demonstrated a prima facie case.
The Court applied the Mrao definition of a prima facie case and, on the sworn evidence of long occupation, residence, farming, and burial of forebears on the suit parcels, and threats of eviction, found the applicants had shown an apparent right infringed by the respondents, sufficient to call for rebuttal at trial.
Whether the applicants would suffer irreparable injury not compensable by damages
Yes - the suit property is their home and damages would be inadequate.
Applying Pius Kipchirchir Kogo v Frank Kimeli Tenai, the Court held that because the applicants allege the suit land is their home where they have lived for decades, they could not be adequately compensated by an award of damages if evicted before trial, satisfying the second Giella condition.
Whether the balance of convenience favours the applicants
Yes - preserving the suit property pending trial is the lower risk of injustice.
Guided by Pius Kipchirchir Kogo, Paul Gitonga Wanjau and Amir Suleiman v Amboseli Resort, the Court found the balance of convenience tilted towards the applicants since the property should be preserved pending full interrogation of documents and the chronology of events at trial.
Whether the court can grant a restriction on the suit land at first instance
No - restriction is a statutory power of the Land Registrar under Section 76 of the Land Registration Act, 2012.
Distinguishing restriction from inhibition under Section 68 of the same Act, the Court held that only the Land Registrar, after inquiries, notices and hearings, may place a restriction on land; the prayer for a restriction was therefore rejected.
Who bears the costs of the application
Costs are discretionary and follow the event, but the Court elected that costs be in the cause.
Citing Section 27(1) of the Civil Procedure Act and authorities on costs following the event, the Court noted the applicants succeeded on the injunction but opted for costs in the cause given the interim nature of the ruling.
Legal principles established
#- The three Giella conditions for an interlocutory injunction must all be satisfied sequentially, with no leap-frogging.
- Under Section 76 of the Land Registration Act, 2012, the power to place a restriction on land vests exclusively in the Land Registrar, not the court.
- On interlocutory injunctions the court makes no final findings of contested facts but weighs the relative strength of the parties' cases.
Court orders
#- 1.The Notice of Motion application dated May 27, 2024 be and is hereby found to have merit and is allowed
- 2.An order of temporary injunction restraining the respondents by themselves, servants and/or agents from evicting, demolishing, harassing or interfering in any manner with the Plaintiffs/Applicants occupation of Plot Number 2095/111/MN & 2097/111/MN, Maweni A, Baharini, Kanamai, Kilifi County, with the OCPD, DCIO Mtwapa Police Division, OCS Mtwapa Police and OCS Kujipwa Police Station to enforce, pending the hearing of the main suit
- 3.Mention on February 27, 2025 for a Pre-Trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010
- 4.The costs of the Notice of Motion application dated May 27, 2024 shall be in the cause
- Jurisdiction invoked
- Order 40 Rule 1 of the Civil Procedure Rules 2010; Sections 3A and 63 of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kulumba & 39 others v Tungu & 2 others (Land Case E047 of 2024) [2025] KEELC 41 (KLR)", Case Analysis (2025). Notice of Motion application dated 27th May, 2024 (ELC suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/41/eng@2025-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.