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ELCAllowedNot stated in the judgment (suit filed by Originating Summons dated 14th July 2023)· [2025] KEELC 4543 (KLR)

Kasisi & 332 others v Sherman & 9 others (Enviromental and Land Originating Summons E001 of 2023) [2025] KEELC 4543 (KLR)

Environment and Land Court
30 May 2025
5,630 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Long-time occupants of Mombasa land won a court order blocking their eviction until their adverse possession claim is fully heard.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Hon. Justice L. L. Naikuni) delivered on 30th May 2025 in an adverse possession suit brought by Originating Summons dated 14th July 2023 by Katana Kibwana Kasisi and 18 others against the defendants, said to be heirs/beneficiaries of the Estate of Saleh Said Sherman alias Saleh Bin Sherman, deceased registered owner of Plot No. 2473/1/MN (Original No. 398/1/MN) at Bamburi-Utange, Mombasa. Two applications were before the court: a Notice of Motion dated 5th September 2024 seeking a temporary injunction restraining survey, subdivision, eviction, alienation or dispossession, with named state officers to enforce; and a Notice of Motion dated 11th September 2024 seeking leave to amend the Originating Summons to add omitted occupants and remove those who had moved out. The court framed three issues: the injunction threshold under Order 40 Rule 1, leave to amend under Order 8, and costs. Applying Giella v Cassman Brown as sequenced in Nguruman, and the Mrao definition of a prima facie case, the court found the plaintiffs' deposed long, open, peaceful and adverse occupation (dating from 1997/before 2001), the defendants' total absence from the land, and a prior favourable outcome in ELC Petition No. 82 of 2015, established a prima facie case; that the land was their home so damages would be inadequate; and that the balance of convenience favoured preservation of the status quo. Applying the Ochieng principles on amendments, leave was granted with corresponding leave for the defendants to amend within 14 days. Both applications were allowed; costs were placed in the cause; the matter was set for mention on 14th July 2025 before Justice Olola.

Key legal issues

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01

Whether the plaintiffs established a prima facie case for temporary injunction

Holding

The court found a prima facie case with probability of success based on averments of occupation since before 2001 (and since 1997 for the deponent), openly, peacefully and adversely to the registered owner's title, supported by a prior judgment in ELC Petition No. 82 of 2015 (Mombasa) decided in their favour on 20th July 2022

Reasoning

Applying the Mrao definition of a prima facie case, the court found that the deposed facts - long, open, peaceful and adverse occupation of Plot 2473/1/MN, the defendants' absence of any structure or occupation, and a prior favourable judgment - disclosed an apparent right (adverse possession) infringed by the threatened survey, subdivision or eviction, calling for rebuttal at trial.

02

Whether the plaintiffs would suffer irreparable injury not compensable in damages

Holding

The court held the second condition satisfied because the suit premises were the applicants' home and not compensable in monetary damages

Reasoning

Relying on Pius Kipchirchir Kogo v Frank Kimeli Tenai, the court reasoned that the applicants' homes, crops and livelihood were on the land; eviction or alienation would cause harm that money could not adequately remedy, thus satisfying the irreparable injury limb of Giella.

p. 8
03

Where the balance of convenience lies

Holding

The balance of convenience tilts in favour of the applicants and the status quo of the suit property should be preserved pending trial

Reasoning

Applying Amir Suleiman v Amboseli Resort Limited and Paul Gitonga Wanjau, the court reasoned there is a lower risk of injustice in granting the injunction, as the court had not yet interrogated the documentary history of the claim, and preservation serves both parties until the suit is heard on its merits.

p. 8
04

Whether leave should be granted to amend the Originating Summons

Holding

Leave to amend was granted because occupants were inadvertently omitted and others had moved out, no prejudice would befall the defendants, and the matter had not proceeded to hearing

Reasoning

Applying Order 8 Rules 1, 3 and 5 and the Ochieng v First National Bank of Chicago principles, the court held the amendment was made to determine the true substantive merits, was not mala fide, caused the defendants no compensable injury, and the defendants would in any event have corresponding leave to amend their defence within 14 days.

p. 10

Legal principles established

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  • The three Giella conditions for an interlocutory injunction - prima facie case, irreparable injury and balance of convenience - must all be satisfied
  • Land occupied by a claimant as their home, threatened with eviction or alienation, may be preserved by temporary injunction because damages would be an inadequate remedy
  • Amendments to pleadings, including addition or substitution of parties, should be allowed if made in good faith, timeously and without prejudice to the other side
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, though the court retains discretion

Court orders

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  1. 1.Both the Notice of Motion applications dated 5th September, 2024 and 11th September, 2024 were found to have merit and were allowed
  2. 2.Temporary injunction restraining the Defendants/Respondents, their servants, agents or persons claiming under them from surveying, subdividing, evicting, alienating, dispossessing the plaintiffs or interfering with their quiet possession of land parcel no. 2473/1/MN (Original No. 398/1/MN), with enforcement by the Mombasa County Police Commander, Mombasa County Criminal Investigation Officer, Mombasa County Commissioner, Kisauni Deputy County Commander and OCS Bamburi Police Station, pending hearing and determination of the main suit/originating summons
  3. 3.Plaintiffs/Applicants granted leave to amend their joint Originating Summons dated 14th July, 2023
  4. 4.The draft amended Originating Summons annexed to the Notice of Motion dated 11th September, 2024 deemed properly and duly filed upon payment of requisite filing fees
  5. 5.Defendants granted corresponding leave to amend, file and serve their amended defence within 14 days from the date of the ruling
  6. 6.Matter to be mentioned on 14th July, 2025 before Justice Olola for further directions
  7. 7.Costs of both applications to be in the cause
Jurisdiction invoked
Articles 40, 47 and 159 of the Constitution of Kenya 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21); Order 40 Rules 1, 2, 3 and 4 and Order 51 Rule 1 of the Civil Procedure Rules (2010); Order 8 Rules 3 and 5; Sections 7, 17, 37 and 38 of the Limitation of Actions Act

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, "Kasisi & 332 others v Sherman & 9 others (Enviromental and Land Originating Summons E001 of 2023) [2025] KEELC 4543 (KLR)", Case Analysis (2025). Not stated in the judgment (suit filed by Originating Summons dated 14th July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4543/eng@2025-05-30

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