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ELCPartially AllowedNot stated (Environment and Land Court Petition, Mombasa)· [2025] KEELC 1184 (KLR)

Akaran c/o Sheria na Haki Human Right Institute & 2 others v Fort Properties Limited & 11 others; Director of Criminal Investigation & another (Interested Parties) (Environment & Land Petition E014 of 2024) [2025] KEELC 1184 (KLR)

Environment and Land Court
12 March 2025
2,826 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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In a Mombasa land dispute, the court kept a freeze on the property title, granted the landowner an injunction against the occupants, and let the main case proceed to full hearing.

What this practically means

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Executive summary

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In an Environment and Land Court petition at Mombasa concerning Plot No. 11MN/1872, CR No. 17055 at Kiembeni, the court (S. M. Kibunja, J) ruled on the petitioners' notice of motion dated 29th May 2024 seeking conservatory orders against eviction, demolition and interference, impounding and cancellation of allegedly fraudulent titles, and reinstatement of displaced occupants; the 1st respondent's notice of motion dated 31st July 2024 seeking an injunction against the petitioners; and the 1st respondent's preliminary objection dated 7th August 2024 asserting that the suit, being in substance an adverse possession claim, should have been commenced by originating summons under Order 37 and not by constitutional petition. Applying Mukisa Biscuit and Lillian S, the court rejected the preliminary objection because the 1st respondent had not filed a reply to the petition and the objection would require evidence rather than raising a pure point of law. Relying on a Deputy Registrar's locus report recording the land as idle, uninhabited and in the 1st respondent's possession, with no visible graves, church or mosque, the court dismissed the petitioners' application in its entirety, granted the 1st respondent's unopposed injunction in prayer (4), and extended the inhibition order issued on 24th June 2024 under section 68 of the Land Registration Act pending the hearing and determination of the petition. Costs of all three interlocutory matters were ordered to abide the outcome of the petition.

Key legal issues

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01

Whether a constitutional petition seeking declaratory orders over land is bad in law because the claim is substantively one for adverse possession requiring an originating summons under Order 37

Holding

The preliminary objection was rejected as it was not a pure point of law; the 1st respondent had not filed a reply to the petition, so the court could not determine whether the objection rested on uncontested facts

Reasoning

Applying Mukisa Biscuit, a preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct. Because the 1st respondent had not yet replied to the petition, which seeks nine declaratory orders, permanent injunction, judicial review orders and damages, determining the objection would require evidence and factual findings, which is impermissible at the interlocutory stage. The objection was accordingly rejected and the suit proceeds.

p. 4
02

Whether the petitioners satisfied the threshold for conservatory orders and reinstatement at the interlocutory stage

Holding

Dismissed. The Deputy Registrar's site visit found the land idle with no inhabitants, no visible graves, church or mosque, corroborating the 1st respondent's exclusive possession

Reasoning

The court relied on the independently prepared locus report recording the physical status, use and condition of the land. Despite the petitioners' claims of long occupation, burial sites and places of worship, nothing was visible on the ground. The report confirmed the 1st respondent's position that the petitioners were not on the land. Without evidence of occupation or interference with possession, the petitioners failed to meet the threshold for the interlocutory relief sought.

p. 6
03

Whether the 1st respondent's unopposed application for an injunction against the petitioners should issue

Holding

Granted. The 1st respondent showed it is the registered proprietor and that the petitioners had invaded the property and demolished part of the perimeter wall

Reasoning

The 1st respondent's application of 31st July 2024 was unopposed. It demonstrated that it is the registered proprietor of the suit property (albeit under challenge), that the petitioners had entered the land on 27th to 30th July 2024, destroyed part of the perimeter fence and attempted construction, requiring police intervention. The court found the 1st respondent deserving of the injunction and granted prayer (4) pending hearing of the petition, while extending the inhibition order of 24th June 2024 to preserve the legal status of the property.

p. 6

Legal principles established

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  • A preliminary objection that would require ascertainment of facts or evidence is not a pure point of law and must be rejected; where the objector has not even filed a reply to the petition, the court cannot treat the objection as resting on uncontested facts

Court orders

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  1. 1.The 1st respondent's notice of preliminary objection dated 7th August 2024 is rejected
  2. 2.The petitioners' notice of motion dated 29th May 2024 is dismissed in its entirety
  3. 3.The 1st respondent's notice of motion dated 31st July 2024 has merit and the injunction order sought in prayer (4) is granted as prayed pending the hearing and determination of the petition
  4. 4.The inhibition order issued on 24th June 2024 and registered against the suit property's title to remain in force pending the hearing and determination of the petition
  5. 5.The costs in the preliminary objection dated 7th August 2024 and the applications dated 29th May 2024 and 31st July 2024 to abide the outcome of the petition

Authorities

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Legislation

  • Civil Procedure RulesOrder 37
  • Land Registration Actsection 68

Cases cited (2)

  • The Owners of Motor Vessel "Lillian S" versus Caltex Oil Kenya Limited
    [1989] KLR
  • Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors Ltd
    [1969] EA 696
Jurisdiction invoked
Original petition jurisdiction of the Environment and Land Court (suit concerning Plot No. 11MN/1872, CR No. 17055, Kiembeni, Mombasa); inhibition under section 68 of the Land Registration Act No. 3 of 2012

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, "Akaran c/o Sheria na Haki Human Right Institute & 2 others v Fort Properties Limited & 11 others; Director of Criminal Investigation & another (Interested Parties) (Environment & Land Petition E014 of 2024) [2025] KEELC 1184 (KLR)", Case Analysis (2025). Not stated (Environment and Land Court Petition, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1184/eng@2025-03-12

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