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ELCOtherNot stated in the judgment (Notice of Motion dated 26th March 2024)· [2025] KEELC 978 (KLR)

Awadh v National Museum of Kenya & 3 others (Environment & Land Case E034 of 2024) [2025] KEELC 978 (KLR)

Environment and Land Court
27 February 2025
2,385 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court froze a coastal land dispute: the buyer keeps possession of the Mtwapa Creek plot, but no one can demolish, build, or transfer anything until a full trial settles ownership.

What this practically means

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Executive summary

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The plaintiff, Adil Salim Awadh, moved the Environment and Land Court at Malindi by Notice of Motion dated 26th March 2024 seeking an injunction to restrain the defendants from trespassing onto Plot No. 318/III/MN, demolishing his perimeter boundary wall, and interfering with his possession. He claimed title through purchase from I & M Bank Limited as chargee for Kshs 150,000,000, supported by a Certificate of Title and approvals from the County Government of Kilifi, NEMA and NCA for the boundary wall. He alleged that on 28th March 2024 officials and hired goons demolished part of the wall and gate despite an injunctive order issued on 27th March 2024. The 1st defendant, National Museums of Kenya, opposed, contending that the ruins on the North bank of Mtwapa Creek were gazetted in 1935 under Gazette Notice No. 445 as national monuments, rendering the suit property public land that could not be privately allocated; the gazettal itself did not vest ownership in the 1st defendant but preserved all parcels containing the ruins for public benefit. The 4th defendant, County Government of Kilifi, filed grounds of opposition taking a similar position; the 2nd and 3rd defendants did not participate. The court, E. K. Makori J, applied the Giella v Cassman Brown conditions and the Nguruman/Mrao definition of a prima facie case. It found the plaintiff prima facie in actual possession but held that the conflict between his claimed private title and the assertion of gazetted monument status required full investigation at trial. Rather than granting the full injunction sought, the court ordered maintenance of status quo: the plaintiff to remain in possession without altering or transferring the property, the respondents restrained from trespassing, demolishing the wall or interfering with his peaceful occupation, the applicant not to deface any ruins, a site visit to be conducted, the matter fast-tracked, and costs in the cause.

Key legal issues

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01

Whether the plaintiff established a prima facie case warranting an injunction over Plot No. 318/III/MN

Holding

The plaintiff showed he is in actual possession and holds a Certificate of Title, but the competing claim that the land is a gazetted national monument meant the root of title could only be investigated at a full hearing; the court granted status quo rather than the full injunction sought

Reasoning

The plaintiff purchased the property from I & M Bank Limited as chargee for Kshs 150,000,000 and holds a Certificate of Title issued in 1937. The 1st defendant asserts the land was gazetted in 1935 as national monuments, making it public land. The court held the ownership conflict requires full trial and preserved possession pending hearing.

p. 4
02

Whether the suit property became public land upon the 1935 gazettement of the ruins on the North bank of Mtwapa Creek

Holding

The court accepted only provisionally that if the property is proved at hearing to have been a gazetted ruins and monument, it could not have been allocated to a private individual; the question was left for trial

Reasoning

The 1st defendant argued the 1935 gazettal did not confer ownership on it but rendered all parcels containing the ruins public protected land, voiding subsequent private allocations. The court agreed such a finding, if proved, would preclude private allocation, but deferred determination to the hearing and ordered a site visit.

p. 4

Legal principles established

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  • The conditions for granting a temporary injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable loss, and balance of convenience if in doubt
  • Where title to land is disputed between a private registered proprietor and a claim that the land is gazetted public land, the root of title must be investigated at a hearing, and an interlocutory court may preserve the status quo

Court orders

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  1. 1.Status quo maintained pending hearing and determination of the suit; the plaintiff, being in possession of Plot No. 318/III/MN, remains in possession and the suit property may not be altered or transferred until the matter is heard and determined
  2. 2.The respondents restrained from trespassing into Plot No. 318/III/MN
  3. 3.The respondents restrained from demolishing the perimeter boundary wall constructed on the suit property and from interfering with the plaintiff's peaceful occupation until the matter is heard and determined
  4. 4.The applicant not to deface or destroy any ruins or monuments that could be standing on the suit property until the matter is heard and determined
  5. 5.A scene visit by the court to be conducted
  6. 6.The matter to be fast-tracked given the site's potential significance for national heritage
  7. 7.Costs in the cause

Authorities

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Legislation

  • National Museums and Heritage ActNot specified (2006)
  • Preservation of Objects of Archaeological and Paleontological Interest OrdinanceNot specified

Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Awadh v National Museum of Kenya & 3 others (Environment & Land Case E034 of 2024) [2025] KEELC 978 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 26th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/978/eng@2025-02-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.