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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 2935 (KLR)

Waqf of Mohamed Seiban Mosque (Suing through its Trustee and Chairperson Salim Said Sieban) v Wanje & 11 others (Environment and Land Case E067 of 2025) [2026] KEELC 2935 (KLR)

Environment and Land Court
18 May 2026
EME. K. Makori
3,470 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear ownership and trespass disputes over waqf land, and protected the mosque trust's Malindi property with a temporary injunction.

What this practically means

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Executive summary

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The Plaintiff/Applicant, asserting that it is the registered absolute proprietor of Portion Number 87 Malindi (approximately 3.122 acres, held under a Waqf for religious and charitable purposes), moved the court by motion dated June 11, 2025 seeking temporary injunctions restraining the 1st to 12th Defendants/Respondents from trespassing on or interfering with the land, plus police enforcement and costs. The Respondents raised a preliminary objection contending that under Section 29 of the Waqf Act, Chapter 109, any dispute relating to a Waqf must in the first instance be referred to a Kadhis' Court, so the suit was before a court without jurisdiction, was premature and an abuse of process. The court framed three issues: jurisdiction, temporary injunction, and costs. On jurisdiction, it applied the Mukisa Biscuit test and distinguished disputes concerning the creation, validity or management of a waqf (for the Kadhis' Court) from pure land, title, trespass and environmental disputes (for the ELC under Article 162(2)(b) and Section 13 of the ELC Act). Holding that this suit concerns ownership, title and use of the land rather than waqf administration, the court dismissed the preliminary objection, finding Section 29 did not oust its jurisdiction. On the injunction, applying Giella v Cassman Brown as clarified in Nguruman and the prima facie case standard in Mrao, the court found the Applicant had produced ownership documents and deposed to sustained alienation efforts and wastage orchestrated principally by the 1st Defendant, an MCA, while the Respondents produced nothing to substantiate their claimed 80-year custodianship. A temporary injunction issued preserving the property, with continued occasional youth football use permitted, OCS Malindi directed to enforce, and costs in the cause. The preliminary objection was dismissed and the application substantially allowed.

Key legal issues

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01

Jurisdiction of the ELC vis-à-vis Section 29 of the Waqf Act

Holding

The PO on jurisdiction fails because the dispute is one of ownership, title and use of land, not the establishment or management of a waqf; Section 29 does not oust ELC jurisdiction.

Reasoning

The court distinguished between disputes requiring interpretation of Islamic endowment law (for the Kadhis' Court) and pure land/title disputes, eviction and trespass claims, and environmental matters, which fall within the ELC's mandate under Article 162(2)(b) and Section 13 of the ELC Act. The suit here seeks to establish ownership of the property and protect it from trespassers, not to determine waqf creation or management.

p. 4
02

Whether a temporary injunction should issue

Holding

A temporary injunction issued to preserve the substratum of the suit property, allowing continued occasional youth football use.

Reasoning

Applying Giella v Cassman Brown as reiterated in Nguruman, the Applicant produced ownership documents showing registered title and deposed to sustained efforts to alienate the property orchestrated by the 1st Defendant (an MCA), including cutting of trees and the fence. The Respondents produced nothing supporting their claimed custodianship. The court found the property in danger of wastage and alienation and held football activities did not alter ownership.

p. 7

Legal principles established

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  • Section 29 of the Waqf Act does not oust the jurisdiction of the ELC over pure land and title disputes involving waqf land; the Kadhis' Court is the first-instance forum only for waqf creation, validity and management matters
  • The ELC retains jurisdiction over eviction, trespass and environmental claims affecting waqf land where no interpretation of Islamic endowment law is required

Court orders

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  1. 1.Preliminary objection dismissed
  2. 2.Temporary injunction restraining the 1st to 12th defendants/respondents from trespassing on, encroaching upon, or otherwise interfering with portion Number 87 Malindi pending hearing and determination of the suit
  3. 3.Use of the said property permitted for football matches by area youth as occasionally permitted by the Applicant
  4. 4.OCS Malindi Police Station directed to provide security and enforcement to preserve the subject land and ensure compliance with the orders
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court 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, "Waqf of Mohamed Seiban Mosque (Suing through its Trustee and Chairperson Salim Said Sieban) v Wanje & 11 others (Environment and Land Case E067 of 2025) [2026] KEELC 2935 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2935/eng@2026-05-18

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