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ELCPartially AllowedKwale ELC Petition No. E005 of 2025· [2026] KEELC 5280 (KLR)

Sadi & 3 others v Msambweni Development Co. Ltd & 3 others (Petition E005 of 2025) [2026] KEELC 5280 (KLR)

Environment and Land Court
27 July 2026
5,277 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kwale refused to freeze dealings over disputed land, finding the community claimants offered no evidence of occupation or threatened rights.

What this practically means

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Executive summary

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This omnibus ruling by the Environment and Land Court at Kwale determined twin applications arising in Kwale ELC Petition No. E005 of 2025. The first, a Notice of Motion dated 12th February 2025 by the four Petitioners, sought conservatory orders restraining the 1st to 3rd Respondents from occupying, alienating or dealing with LR No. 5022/19 (Original 5014/2) Kwale pending determination of the Petition. The Petitioners claimed ancestral ownership and occupation of the suit premises since time immemorial and alleged fraudulent acquisition of title by the 1st Respondent. The 1st Respondent, Msambweni Development Company Limited, denied the Petitioners' occupation and asserted registered ownership since 1977, noting portions of the parent title had been surrendered to the government under a Deed of Settlement establishing a 306-acre settlement scheme at Gazi. The 2nd and 3rd Respondents, through the Land Registrar, Mombasa, detailed the title history and confirmed no record of the Petitioners as owners. The second application, dated 3rd July 2025 and undefended, sought the joinder of Mzee Kalole Chula, chairman of the Gazi residents' committee and a signatory to the Deed of Settlement, as an interested party. Applying established principles on conservatory relief, the court dismissed the first application, finding the Petitioners had not demonstrated a prima facie case, any evidence of prolonged occupation, or the specific rights likely to be violated. The joinder application was allowed, the Intended Interested Party having shown an identifiable stake in the ownership dispute. Each party was ordered to bear its own costs of both applications.

Key legal issues

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01

Whether conservatory orders should issue over LR No. 5022/19 (Original 5014/2) Kwale

Holding

Dismissed - the Petitioners did not establish a prima facie case or demonstrable threatened rights violations

Reasoning

Guided by authorities including Judicial Service Commission v Speaker of the National Assembly, Muhuri v AG and Kenya Small Scale Farmers Forum, the court assessed the principles for conservatory relief. The Petitioners claimed ownership and occupation since time immemorial but annexed no evidence of prolonged use, occupation or development. The title records showed the 1st Respondent registered since 2nd February 1977 with portions properly transferred to the government under a deed of settlement. The failure to specify the rights likely to be violated meant the threshold was unmet, and the Petition would remain alive without the orders.

p. 9
02

Whether Mzee Kalole Chula should be enjoined as an interested party

Holding

Allowed - the Intended Interested Party demonstrated an identifiable stake in the Petition

Reasoning

Applying Order 1 Rule 10 of the Civil Procedure Rules, the Mutunga Rules definition of an interested party, the Marigat Group Ranch case and the Supreme Court's Muruatetu principles, the court found that the applicant, as chairman of the Gazi residents' committee and signatory to the Deed of Settlement under which 306 acres were donated for settlement, had a close connection to the subject matter. The Petition sought declarations of ownership, and the court held it necessary to obtain a proper history of the occupants of the property before making substantive ownership declarations.

p. 11
03

Who bears the costs of both applications

Holding

Each party to bear its own costs, notwithstanding the general rule that costs follow the event

Reasoning

The court acknowledged Section 27(1) of the Civil Procedure Act and Rule 26 of the Mutunga Rules on the discretion to award costs, citing Jasbir Rai Singh v Tarchalan Singh and Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited. Notwithstanding the discretion, in the circumstances of this constitutional petition the court ordered that each party bear its own costs of both applications.

p. 11

Legal principles established

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  • Conservatory orders are constitutional remedies in rem meant to keep the subject matter of the dispute in situ, not ordinary civil law remedies
  • An applicant for conservatory relief must demonstrate a prima facie case with a likelihood of success, not merely an arguable case
  • Joinder of an interested party is discretionary and requires demonstration of an identifiable, proximate personal interest or stake, prejudice on non-joinder, and the relevance of the intended submissions

Court orders

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  1. 1.The Notice of Motion application dated 12th February, 2025 be and is hereby dismissed for lacking in merit
  2. 2.The Notice of Motion application dated 3rd July, 2025 be and is hereby allowed as prayed in terms of Prayer 1 of the application
  3. 3.Each party to bear its own costs for both applications
  4. 4.The interim conservatory orders (prayer no. 2 previously granted) automatically lapse pursuant to the ruling
Jurisdiction invoked
Article 22 & 23 of the Constitution (constitutional petition); Order 40 Rules 1, 5 and 10 and Order 1 Rule 10 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act, Cap. 21

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, "Sadi & 3 others v Msambweni Development Co. Ltd & 3 others (Petition E005 of 2025) [2026] KEELC 5280 (KLR)", Case Analysis (2026). Kwale ELC Petition No. E005 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5280/eng@2026-07-27

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