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ELCDismissedNotice of motion dated 12.03.2025 (in the main suit re: plots MN/VI/3957, 2504, 2505 and 3074)· [2025] KEELC 3832 (KLR)

Kefa & 32 others v Kenya Petroleum Refineries (Environment & Land Case E028 of 2025) [2025] KEELC 3832 (KLR)

Environment and Land Court
30 April 2025
YAY. M. Angima
1,402 words in judgment
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The bottom line

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Mombasa's Environment and Land Court refused to stop an eviction because the occupiers could not prove any ownership claim over the plots.

What this practically means

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Executive summary

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By a plaint dated 12.03.2025 the plaintiffs sued the defendant claiming ownership (legal or beneficial) of plots MN/VI/3957, 2504, 2505 and 3074 on account of long occupation, and alleging that the defendant intended to evict them and demolish their structures in purported execution of a decree in Mombasa HCCC No. 544 of 2000 (or 2008) concerning a different property. By a notice of motion dated 12.03.2025 under Articles 50(1) and 159 of the Constitution, Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, they sought an interim injunction restraining eviction or demolition pending trial. The defendant, in replying affidavits by Kadzo Kalama, contended that the decree covered the entire original Plot 255 from which the suit parcels were subdivided, and that occupation endangered an operational petroleum pipeline. The court framed two issues: whether a prima facie case for an injunction was established, and costs. Applying Giella v Cassman Brown and Mrao v First American Bank, the court held that the plaintiffs failed to demonstrate any basis for their claimed legal or beneficial ownership, did not plead adverse possession, and were evasive about when and how they entered the land; the application failed at the first hurdle, making it unnecessary to consider irreparable harm or the balance of convenience. The motion was dismissed with costs to the defendant and the suit was fixed for pre-trial directions on 17.06.2025.

Key legal issues

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01

Whether the plaintiffs made out a prima facie case for an interim injunction

Holding

The application failed at the first Giella hurdle; no prima facie case with a probability of success was demonstrated.

Reasoning

Although the plaintiffs claimed legal or beneficial ownership of the suit properties by virtue of long occupation, they did not demonstrate the basis of such ownership, did not plead adverse possession, and did not show who the registered owner was. They were also economical with facts about when and how they entered the properties. The mere fact that the suit properties may not have been covered by the HCCC No. 544 of 2000 decree did not confer ownership on them.

p. 3
02

Costs of the application

Holding

Costs awarded to the defendant as the successful party.

Reasoning

Costs are discretionary but follow the event under the proviso to Section 27 of the Civil Procedure Act. No good reason was shown to depart from the general rule that a successful party be awarded costs.

p. 3

Legal principles established

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  • A prima facie case in a civil application is a genuine and arguable case showing an apparently infringed right calling for explanation or rebuttal.
  • Costs follow the event unless the court, for good reason, directs otherwise.

Court orders

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  1. 1.The notice of motion dated 12.03.2025 be and is hereby dismissed with costs to the defendant
  2. 2.The suit shall be mentioned on 17.06.2025 for pre-trial directions

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 50(1) and 159
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 27 and 63(c)
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 4

Cases cited (3)

  • Giella vs Cassman Brown Ltd
    [1973] EA 358
  • Mrao Limited vs First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Articles 50(1) and 159 of the Constitution; Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act; Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules

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, "Kefa & 32 others v Kenya Petroleum Refineries (Environment & Land Case E028 of 2025) [2025] KEELC 3832 (KLR)", Case Analysis (2025). Notice of motion dated 12.03.2025 (in the main suit re: plots MN/VI/3957, 2504, 2505 and 3074). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3832/eng@2025-04-30

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