Krav Marine Limited v Governor of the County Government of Kwale & 10 others

Applicant. While the other was the Notice of Motion application dated 9th October, 2025 by the Governor of the County Government of Kwale, C.E.C.M – Tourism, Trade and Enterprise development County Government of Kwale and the County Government of Kwale, the 1st, 2nd, 3rd & 4th Defendants/Applicants herein. 2. Upon service of the Applications, the Respondents to each one of them led their responses. The Honourable Court shall be dealing with the two applications simultaneously though in a separate and distinct manner whatsoever. II. The Notice of Motion application dated 29th October, 2024 by the Plainti/Applicant 3. The Application was brought under Sections 3, 13(7) of the Environment & Land Court Act, Sections 1A,1B, 3A and 63(e) of Civil Procedure Act, Cap. 21, Order 40 Rules 1, 2, 4, Order 5 Rule 27 of Civil Procedure Rules, 2010 and all enabling provisions of the law. 4. The Applicant sought for the following orders: - 5. a. Spent b. Spent. c. That pending hearing and determination of this suit, a temporary order of injunction do hereby issue restraining the Defendants whether by themselves or through their ocers, servants, agents, employees, proxies or anyone claiming under them from trespassing, entering, remaining on, occupying, leasing, charging, constructing or developing and or in any other manner dealing or interfering with the Plaintis ownership, possession or use of the Plaintis 18 parcels of land known as Kwale/ Diani Beach Block/1270 to 1287 situate in Diani within Kwale County. d. That in the alternative to Order 2 above, the Order of Status quo granted on 1/7/2024,varied on 23/7/2024 and extended on 22/10/2024 be extended pending hearing and determination of this suit, to inter-alia restrain the Defendants from trespassing on the suit property and the 5th - 10th Defendants whether by themselves or through anyone claiming under them from interfering with the Plaintis ownership, use and possession of the suit properties whether by charging, leasing, carrying on developments, harassing and evicting the Plaintis tenants, renting and collecting rent from the Plaintis suit premises on the suit properties known as Kwale/ Diani Beach Block/1270 to 1287 situate in Diani within Kwale County. e. That costs of this Application be in the cause. The application by the Applicant was premised on the grounds, facts and testimony on the face of the application and further supported by the 20th paragraphed annexed adavit of MARZIO FURIO ALUARO KRAVOS, the Managing Director of the Plainti herein averred that: i. The Plainti was the exclusive registered owner of a 99-leasehold interest with eect from 1st November, 1999 free of any, encumbrances of 18 parcels of land registered as known as Kwale/ Diani Beach Block/1270-1287 adjoining each other without a fence in between them and situate in Diani in Kwale County(hereafter the suit properties).Attached in the adavit copies of Certicates of Title for suit properties known as Kwale/ Diani Beach Block/1270-1287 at pages 11-82. ii. The suit properties were lawful sub-divisions by the Plainti of its mother title known as Kwale/Diani Beach Block/135 measuring 13.5 acres (hereafter mother title)which the Plainti https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 2

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lawfully acquired and was on 28th November, 1994 registered the owner of a 99-leasehold interest from 1st January, 1914 in the said mother title free of any encumbrances. Attached in the adavit a copy of the certicate of title for the demised mother title Kwale/Diani Beach Block 135 dated 28th November, 1999 in the name of the Plainti at pages 83 - 86. iii. On 13th October, 1999, the Commissioner of Lands granted extension of the unexpired lease of the mother title for another 99 years upon the Plainti application and approved the Plaintis application for change of user and sub-division of the mother title into sub-divided the said mother title into 15 and 2 residential and commercial plots herein suit properties upon the Plainti’s application where after the Plainti surrendered the mother title and was issued with Certicates of Lease for the said suit properties with a 99 years leasehold interest with eect from 1st January, 1999 as indicated on the respective Certicates of Lease above. Attached copy of a letter ref 46588/243 dated 13th October, 1999 by the Commissioner of Lands to the Hime & Zimerlin and a copy of the Certicate of Lease for a property known as Kwale/Diani Beach Block/135 dated 28/11/1994 in the name of the Plainti at pages 87-89B. iv. Save for interruptions set out hereafter, the Plainti has at all material times since acquisition of the mother title and sub-divisions into the suit properties hereof enjoyed actual quiet and peaceful possession, enjoyment and use of the suit properties where the Plainti operated a well-established Italian and Japanese Restaurant and legend boutique business trading as Diani Pearl Centre -Bar and Restaurant Legend from 1996 to until on or about 24th January, 2005 when the said Hotel and Restaurant was razed down by re with substantial part of the business premises, items and tools of trades were completely burnt down. Attached is a copy of the Plaintis Diani Pearl Centre-Bar and Restaurant Legend Restaurant Business on the Suit properties and Police Abstract dated 24th January, 2005 by Tourist Police Unit in Ukunda on the Fire Accident at the suit premises at pages 89c – 90. v. The Plainti has since the re accident been unable to revamp or restore its said business on the suit properties partly because of the substantial nancial loss caused by the re in 2005, procuring of some duplicate certicates of title for the suit properties as originals thereof were burnt premises above, the demise of one of its long ailing investor Director and Shareholder in April 2019 whose succession and transmission proceedings nalized in 2022/2023 and economic eects of covid-19 pandemic eects on the tourism industry. vi. Subsequent to the above said re accident, the Plainti however engaged a real estate agent company to manage the suit properties and the premises thereon not razed down by the re which the Plainti through the said agent has at all material times rented for value to medium business owners to operate 3 shops and kiosks thereon. The Plainti has through its property manager also employed a caretaker on the suit properties to ensure the Plaintis actual possession and enjoyment of the property at all material times. Attached are copies of Tenancy Agreements and copies of rent and utility payments by the Tenants on the suit properties at pages 90A – 90F. vii. On or about 2nd April, 2024, he was contracted by the caretaker employed on the suit property that the 1st, 2nd and 3rd Defendant together with other members of the County Executive Committee and ocers of the 4th Defendant with the Minister of Tourism in the Government of Kenya had without prior notice or consent of the Plainti trespassed onto the suit properties, moved around it. viii. Shortly thereafter and without any contact to the aant, the Aant discovered that the 1st Defendant had on 2nd April, 2024 caused publication of a press statement on the 4th https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 3

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Defendant’s facebook account named Governors Press Service – Kwale alleging that the 4th Defendant had repossessed 2 acres of land comprised in the suit properties more particularly where the Plaintis razed down restaurants premises was situated for construction of an alleged Kwale Heritage and Convention Centre for public purposes. The said Governors Press – Kwale Facebook account publication of 2nd April, 2024 accessible at https:// www.facebook.com/share/p/cdBoZxWJ6Ear7vSA/?mibextid=xfxF2i. A copy of an extract or copy of the 4th Defendants facebook account named Governors Press Service - Kwale Press Statement and photographic evidence of the 1st to 4th Defendants trespass on the suit properties on 2nd April 2024 on the suit properties posted the 4th Defendants Facebook Account regarding the said visit on 2nd April, 2024 as well as a Certicate of Accuracy are produced as document no. 3 of the Plainti’s List and Bundle of Documents at pages. 91 – 129. ix. On diverse subsequent dates, the 5th – 10th Defendants without the Plainti’s authority had in and on and o visits been trespassing onto the suit properties with unknown persons purporting to show o the suit properties for sale on allegations that the 5th Defendant and his unspecied family members acquired the suit properties by adverse possession. x. Despite reports of trespass against the 5th Defendant and other unknown persons at Diani Police Station, no action had been realized and the said 5th to 10th Defendants whose claims have no basis in law or fact has threatened and intends to continue with the said trespass and unauthorized dealings with the Plaintis suit properties. xi. The above Defendants trespass and threatened forceful detainer of property prompted the Plainti to le a suit against 1st to 5th Defendants herein with an application dated 4th May, 2024 upon which after service on the Defendants and Court's Order of 1st July, 2024, the 5th to 10th Defendants immediately thereafter forcefully re-entered the suit property, ooaded construction materials on a portion thereof and on or about 4th, 6th and 7th July 2024, threatened violence on the Plaintis tenants thereby evicting 1 of them with the Property Manager and prompted the Plaintis application dated 9th July, 2024 upon which the Court granted status quo Orders on 23rd July, 2024 and extended on 22nd October, 2024 until interpartes hearing on 14th December, 2024. There are now only two Tenants occupying 2 of the 3 shops on the suit property. xii. The said Defendants by various adavits sworn on 19th July, 2024, 6th August, 2024 and 17th October, 2024 led herein in reply to the Plaintis original suit and application for injunction dated 4th May, 2024 admit trespass and that their claims on the suit properties are based misrepresentation that lease in the demised mother title expired in 2013 where after it was resurveyed into two title at the 4th Defendants request and thereafter a title purportedly issued to the 4th Defendant on 1st March, 2024 while another was jointly issued to 5th -10th Defendants on 26th January, 2024. xiii. The above said 5th Defendant Replying Adavit sworn on 19th July, 2024, the 4th Defendants Replying Adavit sworn by Kisiwa Mohamed Koja on 6th August, 2024 and 5th - 10th Defendants Further Replying Adavit sworn by the 8th Defendant on 17th October, 2024 in reply to the Plaintis original applications form part of the Court record in this matter admit that their purported titles to the land were obtained on misrepresentation which is prima facie ground that the said title and claims are impeachable and not protected by the law. The Plainti reported the 5th -10th Defendants invasions on the suit property in July 2024 the Plainti made reported at Diani Police Station where it was recorded as OB/36/3/07/2024 and only acted https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 4

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upon by the Police after a Court order was issued herein on 23rd July, 2024. Attached in the Adavit was an Adavit of Luciano Pasteris sworn on 9th July, 2024 with attachments thereto in this matter at pages 130-143. xiv. By reason of disclosure by the Defendants as set out above, the Plainti amended the suit by an amended the Plaint dated and led on 8th and 9th August, 2024 herein inter-alia challenging and or impeaching the Defendants purported resurvey, alienation of the demised mother title to the said 4th to 10th Defendants and purported titles for having been procured irregularly, unprocedurally, illegally and fraudulently through misrepresentation and corrupt scheme hence prima facie illegal and a nullity. xv. The Aant verily believed that the admitted misrepresentation of the status of the demised mother title by the Defendants claims leading to their purported title is prima facie ground impeaching the legality of their titles. There is no reasonable defense in law against the Plaintis titles hence equity and law protects the Plaintis interest and favours grant of an injunction to protect the Plaintis title and possession of the land. The Defendants cannot be allowed to enter the land illegality and cause or threaten nuisance and violence thereby interfere with Plaintis possession, use and enjoyment in perpetuation of the illegality and thereafter seek the court to main such status quo. xvi. Although this Court on 22nd October, 2024 granted extended interim orders of 23rd July, 2024, struck out the Plainti’s application dated 4th May, 2024 on grounds that it was not based upon the amended plaint and directed ling of the instant application, the Plainti noted that the 5th – 10th Defendants had by a Replying Adavit sworn by 8th Defendant herein on 17th October, 2024 admitted causing nuisance by attempting to collect rent from the suit premises following their threats to forcefully evict the Plaintis tenants thereby chasing the Property Manager in July 2024 as stated above and unless this Application was urgently heard and granted, the amended suit herein will be rendered nugatory and the Plainti would suer irreparable loss as the 5th -10th Defendants were hell bent to circumvent and breach the status quo orders, disposes and interfere with the Plaintis quiet possession, enjoyment and use of the suit properties based on illegally obtained titles. Attached in the adavit a copy of the 5th -10th Defendants Replying Adavit sworn by Hatibu Mjaka Mtego on 17th October, 2024 at pages.144 – 148. xvii. The Defendants actions or claims were without any basis in law or fact but merely trespass and unlawful expropriation of property contrary to the law as the Plainti has not sold, surrendered or transferred the suit properties to the Defendant or at all. The Plainti still held and is in custody of original Certicates of Lease for the suit properties and the balance of convenience as well as equity favours an injunction against the Defendants in terms of the Application. xviii. The Adavit was sworn in support of the Application led herewith and state that the same discloses a prima facie case with good chances of success and requires that the subject matter of the suit be preserved to avert irreparable loss on the Plainti and permitting the 5th – 10th Defendants to benet from illegalities and titles admittedly acquired through misrepresentation, fraud and illegality. Attached and produced in the adavit were documents collectively named and marked as MFAK- 1. III. The Notice of Motion application dated 9th October, 2025 by the 1st, 2nd, 3rd and 4th Defendants. 6. As a means of opposing the application dated 29th October, 2024, the 1st, 2nd, 3rd & 4th Defendants led the application dated 9th October, 2025 and a set of authorities to boot. The application was brought under the provision of Sections 1A, 1B, 3A and 7 of the Civil Procedure Act, Cap. 21; Articles 10 & https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 5

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159 ( 2 ) ( b ) and ( d ) of the Constitution of Kenya, 2010. The 1st, 2nd 3rd & 4th Defendants/Applicants herein sought for the following orders:- 7. a. Spent. b. That this Honourable Court be pleased to arrest and stay delivery of the Ruling on the Plainti’s application dated 29th October, 2024 pending the hearing and determination of this application. c. That the suit and application dated 29th October, 2024 be struck out for being Res Judicata to “Mombasa High Court Petition No. 102 of 1999” in the Judgement delivered by Honorable Justice Joyce Khaminwa on 9th March, 2001 and the Decree dated 18th March, 2010. d. Costs of this application be provided for The application was premised on the grounds, testimonial facts and the averments made out under the ten (10) Paragraphed supporting adavit of Jimmy Wafula Simiyu sworn and dated 9th October, 2025 together with an annexture marked as Exhibit “JWS – 1” annexed hereto. He averred as follows:a. He was an Advocate of the High Court of Kenya and practicing as such in the Law rm of Messrs. MKJ Advocates, LLP and on record conducting this brief on behalf of the 1st, 2nd, 3rd & 4th Defendants/Applicants herein and hence duly authorized and competent to sewar this adavit on their behalf. b. Upon perusal of the pleadings and particularly the application by the Plainti dated 29th October, 2024 and the supporting adavit, his attention was drawn to the fact that the issues raised herein were the same one dealt with in a previous suit in “High Court of Kenya at Mombasa, Constitutional Petition No. 102 of 1999 – Krav Marine Limited – Versus Commissioner of Lands & Others”, and wherein Honourable Joyce Khaminwa delivered a nal Judgement on 9th March, 2001 as exhibited in the annexture marked as “JS – 1” annexed herein (Hereinafter referred to as “The Mombasa High Court Petition”). c. The said Judgement conclusively determined the issues herein and its ndings remain binding and unchallenged. d. The parties herein were substantially the same as those in the said Petition and the subject matter and reliefs were identical in substance. e. By reason of the foregoing, this matter was Res Judicata within the meaning of the provision of Section 7 of the Civil Procedure Act, Cap. 21 and the Honourable Court lacks jurisdiction to entertain or determine it afresh. f. The institution of and continued. prosecution of this suit amounted to an abuse of the Court, a mockery of justice and an attempt to circumvent nality in litigation. g. It was in the interest of Justice, procedural propriety and proper utilization of Government resources under Article 10 of the Constitution of Kenya, 2010 that this application be heard on priority basis and the suit be struck out forthwith. IV. The 11th Defendant’s response 8. The 11th Defendant through Kelvin Atuti Advocates led an eight (8) Paragraphed Replying Adavit sworn by BRIAN IKOL and dated 18th November, 2025. He averred as follows that:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 6

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i. He was a male adult person of sound mind, an Advocate of the High Court of Kenya, and the Director of Legal Aairs and Dispute Resolution of the 11th Defendant/Respondent. He was conversant with the facts of this matter, therefore competent and duly authorised to sign and swear this Adavit. ii. He had read and understood the contents of the 1st to 4th Defendants/Applicants’ Notice of Motion Application dated 9th October 2025, together with the Supporting Adavit sworn by Jimmy Wafula Simiyu on the even date, and wish to respond thereto as hereunder. iii. The 11th Defendant/Respondent supported the Notice of Motion Application as the entire suit was misconceived, bad in law, and an abuse of the court process, as the issues raised by the Plainti had already been heard and nally determined by a court of competent jurisdiction in the Mombasa High Court Petition between the same parties or their predecessors in title. iv. The Commissioner of Lands was a party in the Mombasa High Court Petition, and the National Land Commission, being the v. constitutional successor of the said oce under Article 67(2)(a) of the Constitution and Section 5 of the National Land Commission Act, 2012, is consequently bound by and entitled to rely upon the ndings and judgment of that earlier suit.. vi. Hon. Lady Justice Joyce Khaminwa delivered a Judgment on 9th March 2001, which conclusively determined the ownership and tenure of the disputed parcel, declaring that the Plaintis' alleged leasehold interest and the purported extension thereof were unlawful and invalid. Annexed and marked herein as “BI – 1” was a copy of the said Judgment. vii. The Plaintis' current allegations of being registered owners of a 99- year lease commencing on 1st November 1994 and renewed on 13th October 1999 was false and directly contradict the ndings of the Mombasa High Court Petition No.102 of 1999 Judgment, which remained valid and enforceable. viii. The doctrine of “res judicata” applies herein by virtue of Section 7 of the Civil Procedure Act, Cap 21 Laws of Kenya, which bars re-- litigation of matters that have been nally determined by a competent court between the same parties or those claiming under them. V. Submissions 9. While all the parties were present in Court, they were directed to have the two applications dated 29th October, 2024 and 9th October, 2025 respectively to be disposed of by way of written submissions and all the parties complied. Pursuant to that all the parties obliged and a ruling date was reserved on 5th December, 2025 by Court accordingly. A. The written submissions by the Plainti 10. While opposing the application dated 9th October, 2025 by the 1st to 4th Defendants, the Law rm of Messrs, Litoro & Omweba Company Advocates led their written submissions dated 29th October, 2025. Mr. Litoto Advocate commenced his submissions by stating that the Plainti responded to the application through a Replying Adavit dated 14th October, 2025 and sworn by Marzio Furio Aluaro Kravos. 11. The Learned Counsel submitted on two ( 2 ) main issues for the Court’s determination. Firstly, whether the application was incompetent for want of service of the Notice of change of Advocate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 7

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The Learned Counsel averred that it was incompetent for want of service of the Notice of change by the Applicants advocate namely MKJ Advocates LLP on the Plainti's Advocate. The plea in the Replying Adavit that no Notice of Change was served on the Plainti’s Advocates prior to ling the Application was neither rebutted nor denied. Thus, the application was incurably and fatally incompetent for being led by a stranger. The Counsel argued that the rationale behind this rule was to ensure that the opposing party was properly put on notice of the new legal representation to safeguard the integrity of the proceedings and to avoid prejudice or surprise. He referred Court to the provision of Order 9 Rules 5 & 6 of the Civil Procedure Amendment Rules, 2020 which provides: “ 5. 12. A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is led in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the nal conclusion of the cause or matter, including any review or appeal. The party giving the notice shall serve on every other party to the cause or matter (not being a party in default as to entry of appearance) and on the former advocate a copy of the notice endorsed with a memorandum stating that the notice has been duly led in the appropriate court (naming it).” According to the Counsel, the 1st to 4th Defendants' Counsel, MKJ Advocates LLP, had not demonstrated that a Notice of Change of Advocate was ever served upon the Plainti's Advocate as required by law, it is important to note even in their Supplementary Adavit and submissions both dated 23rd October, 2025 the issue of service of the Notice of Change had not been demonstrated. To buttress on this point, the Counsel cited the case of:- “Lalji Bhimji Sanghani Builders & Contractors – Versus - City Council of Nairobi [2012] eKLR”, where the Court held that:“ ............In my view, the Court may when properly moved validate the coming on record by an advocate who was on record depending on the circumstances of the case. However, the Court is not entitled to simply ignore a procedural misstep. That in my view is the alternative that the Court of Appeal had in mind in the latter case. The alternative is not to ignobly disregard the rules of procedure since the said rules are meant to regulate administration of justice and not to assist the indolent. As was held by the Court of Appeal in Hunker Trading Company Limited – Versus - Elf Oil Kenya Limited Civil Application No. Nai. 6 of 2010: applicant cannot be allowed to invoke the “O2 principle" and at the same time abuse it at will...If improperly invoked, the “O2 principle” could easily become an unruly horse and therefore while the enactment of the ‘double O’ principle is a reection of the central importance the court must attach to case management in the administration of justice, in exercising the power to give eect to the principle, it must do so judicially and with proper and explicable factual foundation. The overriding principle will no doubt serve us well but it is important to point out that it is not going to be a panacea for all ills and in every situation. A foundation for its application must be properly laid and the benets of its application judicially ascertained". The said objective it had been held is a case management tool and therefore before the Court invokes the same the foundation for its application must be properly laid and the benets thereof judicially ascertained. A party who without any justication decides not to follow the procedure laid down for orderly conduct of litigation https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 “......the 8

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cannot be allowed to fall back on the said objective for assistance and where no explanation has been oered for failure to observe the rules of the procedure the Court may well be entitled to conclude that the failure to comply therewith was deliberate....” 13. Therefore, according to the Counsel, it followed that the 1st to 4th Defendants' Application was fatally and incurably defective and incompetent for want of compliance with Order 9 Rule 5 and 6 of the Civil Procedure Rules, 2010 and should be struck out with costs. 14. Secondly, whether the suit as led by the Plainti oended the doctrine of Res-judicata. The Learned Counsel submitted that without prejudice to the foregoing, the Application is misconceived, lacking in merit and misapprehension of the law and material facts. The suit herein is not by any stretch resjudicata. It is trite as per Section 7 of the Civil Procedure Act, Cap. 21. It had been demonstrated vide the Amended Plaint dated 8th August, 2024 and more particularly paragraph 23 thereof, that there was no pending suit and there had been no previous suit of the same subject matter between parties herein before any court of competent jurisdiction. This was neither denied or rebutted by the Applicants defence on record to date. The issue of res-judicata was never pleaded in their defense. Parties were bound by their own pleadings and not permitted to depart from their pleadings or raise any ground inconsistent with previous pleading led in a matter. See the provision of Order 2 Rule 6 of the Civil Procedure (Amendment) Rules. 15. The alleged plea of res-judicata is a departure from previous pleading and an afterthought. The instant application was not premised on a Defence or Counter – Claim. To support this issue, the Counsel cited the case of the Court of Appeal “Green & another – Versus - Kazungu & 2 others (Civil Appeal E017 of 2020) [2022] KECA 991 (KLR)(23 September 2022) (Judgment)” adopted with approval previous decisions of the Supreme Court and the Court of Appeal where it was armed that parties are bound by pleadings and not permitted to depart from previous pleadings without amendment. The Court held:“ In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is armed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings...” 16. That settled position was re-armed by the Court of Appeal in the case of “Independent Electoral and Boundaries Commission & Ano. – Versus - Stephen Mutinda Mule & 3 others (2014) eKLR” which cited with approval the decision of the Supreme Court of Nigeria in “Adetoun Oladeji(NIG) – Versus - Nigeria Breweries PLC SC 91/2002” where Adereji, JSC expressed himself thus on the importance and place of pleadings: “ .....it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.........In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 9

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issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.” 17. Additionally, the Counsel submitted that the application lacked merit. It is trite that the parties, cause of action and subject matter of the suit herein was distinct and dierent from the parties, cause of action and subject matter in the alleged Judgment and Decree of “the Mombasa High Court Petition”. In this case, the cause of action was out at paragraph 1 thereof. The parties were clearly listed in the judgment as 4 Respondents. The cause of action in this suit is clearly set out at paragraphs 7-21 of the Amended Plaint with 13 Defendants. Besides, its is trite from the judgment and pleadings herein that the matters in the said High Court in Mbsa, were not directly and substantially in issue between parties in this suit. The two causes of action arose at dierent times. The High Court in Mbsa, sought judicial review orders against statutory bodies particularly the Land Registrar, the then Commissioner of Lands and the County Council of Kwale who had rejected applications for sub-division, change of user and renewal of the lease in the demised mother title. 18. In the said High Court case, the Plainti sought judicial review orders against the then Commissioner of Lands oce who had delayed in renewing a lease for demised mother title. Although the judicial review orders were declined, the Plainti had deponed that the said oce subsequently approved renewal of 99 years leasehold interest in the demised mother title as well as sub-division thereof into 16 residential plots and 2 commercial plots, and the Land Registrar Kwale issued the Plainti with Certicates of Leases for all the said suit properties namely the 18 Sub – divided parcels between 6th September, 2000 and 23rd November, 2000,which were destroyed and replaced with Certicates of title issued in the year 2012 as pleaded in the Amended Plaint. The said titles were sub-divisions from the then mother title upon receiving no objection letters from the defunct County Council of Kwale. 19. The cause of action in the Amended Plaint was that the Defendants through inter-alia misrepresentation, fraud and unprocedural illegality purported to survey, adjudicate and allocate the above Plaintis suit properties as title No. Kwale/Diani Beach Block/2302 and 2303 in the year 2024 when the said land was unavailable for allocation or alienation. 20. Be that as it may, while the judicial review orders against the demised Commissioner of Lands, County Council of Kwale and Land Registrar which was clearly set out in the Judgment of the High Court in the said Mombasa High Court Petition, may have been declined; the said Respondents granted the Petitioners request that prompted the Petition. It was also clear that the cause of action in the said Petition was dierent from the cause of action in this suit. In a nutshell, the issues in this suit and or parties were not directly in issue in the said Mombasa High Court Petition and could not been in issue in the previous suit noting that the cause of action in this suit arose in the year 2024 against dierent parties. 21. # The Counsel emphasized that the proceedings in Mombasa HC Petition were judicial review proceedings challenging administrative actions by public ocers and sought judicial review writs; this is restricted to lawfulness of decision making process and not merits of the suit. The present proceedings was a substantive suit inviting the court to interrogate disputed facts and make a decision on merits, on the other hand, seek declaratory, injunctive, orders of rectication of the land register and compensatory reliefs arising from fresh acts of trespass, interference, and unlawful dealings over the Plainti's property. These are distinct causes of action both in law and in fact. On this point he placed reliance on the case of “John Florence Maritime Services Limited & another v Cabinet Secretary https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 10

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Transport & Infrastructure & 3 others (Petition 17 of 2015)[2021] KESC 39 (KLR) (Civ) (6th August 2021) (Judgment)” where the supreme Court held at paragraph 97 that:“ ....97 From the face of it, it would appear that the issues in the present suit and JR 130 of 2011 are directly and substantially the same. However, the appellants herein predicated their petition on inter alia grounds that the bilateral agreement should have been approved by Parliament in order to form party of Kenyan-law and in-failing to do-so, the-respondents contravened article 2. They further alleged that the Respondents herein purported to usurp to the role of Parliament and in doing so contravened articles 94(5) and (6) of the Constitution. They further alleged that the FERI and COD certicates threatened to infringe their right to property under Articles 40(1)(a) and (2)(a) when the respondents threatened to arbitrarily deprive them of their property. The court sitting in determination of a judicial review application did not have jurisdiction to render itself on these issues. We therefore and that the principle of res judicata was wrongly invoked on this ground.” 22. The Court further held that: “ 108. ..We arrive at the inescapable conclusion that the High Court in determining a judicial review application, exercises only a fraction the jurisdiction it has to determine a constitutional Petition. It therefore follows that a determination of a judicial review application cannot be termed as nal determination of issues under a constitutional petition. The considerations are dierent; the orders the court may grant are more expanded under a constitutional petition and therefore the outcomes are dierent. The court in hearing a constitutional petition may very well arrive at the same conclusion as the court hearing a judicial review application. However, the considerations right from the outset are dierent, the procedures are dierent, the reliefs that the court may grant are dierent, the court will be playing fairly dierent roles. We consequently arrive at the conclusion that the Court of Appeal erred in holding that the doctrine of res judicata applied to the current case. The Court of Appeal should have at that point found that the High Court was wrong in its conclusion.” 23. The Supreme Court emphasized that “the doctrine of res judicata” should not be applied rigidly or mechanically to defeat substantive justice, especially where the previous proceedings were of a dierent nature or involved a dierent cause of action. 24. In conclusion, the Learned Counsel asserted that it was evident that the issues, parties, and cause of action in “Mombasa HC Petition” were substantially dierent from those in the instant case. Consequently, the doctrine of res judicata was inapplicable in this suit. Similarly, the application was incurably defective, incompetent, and an abuse of the court process. Therefore, the Learned Counsel humbly prayed that the 1st to 4th Defendants' Notice of Motion Application dated 9th October, 2025 be either struck out or dismissed with costs. B. The written submissions by the 1st, 2nd, 3rd and 4th Defendants 25. Through the Law rm of Messrs. MKJ Advocates, the 1st, 2nd, 3rd and 4th Defendants led their written submissions dated 23rd October, 2025. Mr. Simiyu Advocate commenced his submissions by stating that the 1st, 2nd,3rd and 4th Defendant Applicants led a Notice of Motion dated 9th October 2025, seeking to strike out the Plainti’s suit on the ground that the entire cause is Res Judicata, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 11

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the issues having been conclusively determined by a court of competent jurisdiction in the Mombasa High Court Petition in a judgment delivered by Hon. Lady Justice Joyce Khaminwa on 9th March 2001.The Plainti/Respondent led a Replying Adavit dated 14th October 2025 in opposition to the application. 26. According to the Learned Counsel, the said Judgment conclusively addressed the legality of the Plainti’s title over the demised mother title, which was the same property that forms the substratum of the present proceedings. The Applicants submitted that the present proceedings were a blatant attempt to relitigate issues already settled more than two decades ago and was therefore barred by Section 7 of the Civil Procedure Act, Cap 21 Laws of Kenya. The application was brought under certicate of urgency because the court was due to deliver a ruling to an interlocutory application on 5th November 2025. He referred Court to the provision of Section 7 of the Civil Procedure Act, Cap. 21. The Counsel averred that the doctrine is founded on the principles of nality in litigation and the public policy against abuse of judicial process. It bars parties from re - opening disputes already settled by competent courts. To buttress his point he cited the case of “Independent Electoral & Boundaries Commission – Versus - Maina Kiai (Supra)”. 27. He averred that the Plainti herein was the Petitioner in “Mombasa High Court Constitutional Petition No. 102 of 1999 – Krav Marine Limited – Versus - Land Registrar Kwale, The commissioner of lands, The County Council of Kwale and the Attorney General”. The parties were substantially the same or suing under the same title. The Mombasa High Court Petition concerned the very same parcel of land, the demised mother title, whose ownership and validity of leasehold interest are again being challenged in this suit. This is the mother title giving birth the irregular sub - division titles that have been disowned by the 11th, 12th and 13th Defendants. The Judgment delivered by High Court on 9th March, 2001 conclusively determined the question of title. A question arises where the Plainti derived validity to the title to the mother title and carry out the sub division? 28. The Learned Counsel asserted that the parties in Petition No. 102 of 1999 and the present suit were substantially the same, to wit the Petitioner (Krav Marine Limited) was the Plainti in the current proceedings. The Land Registrar Kwale and the Attorney General were parties in the Petition and the suit herein. Further the Commissioner of Lands, and the County Council of Kwale in the Mombasa High Court Petition case correspond to their constitutional successors; the National Land Commission, and County Government of Kwale respectively. 29. To support this point, the Counsel cited the Supreme Court case of: “Torino Enterprises Ltd – Versus A-G (SC Petition No. 5 (E006) of 2022)” recognized that the county council which had previously held the suit land is succeeded by the county government and treated the county government as the legal successor in title for purposes of ownership and administration. The judgment arms that rights, title and interests vested in defunct local authorities (e.g. Nairobi City Council or Kwale county Council) pass to the successor county entity which must be treated as the proper party in disputes over such land. Accordingly, the County Government of Kwale stands in privity of succession to the former County Council of Kwale and is the correct defendant/respondent in respect of rights and title over Kwale/ Diani Beach Block/135. 30. The Learned Counsel submitted that the substratum of both suits was identical: the ownership and legality of the leasehold interest in the demised mother title, including its subsequent sub - divisions. The Plainti seeks to assert rights founded upon the very lease that was invalidated in the Mombasa High Court Petition. The issue for determination in both cases was thus the same and that was the validity of the lease/ whether there existed a valid and subsisting lease capable of being transferred to the Plainti. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 12

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31. 32. The Learned Counsel averred that the matter had already been heard and nally determined by a competent Court of Law. Despite of that there was no appeal was preferred to set aside the said judgment of the court. It remained to be the legal position. The Court’s ndings were categorical, and we quote the relevant parts verbatim:i) “The undisputed documentary record before the Commissioner of Lands indicates a surrender of the 1978 lease on the 4th August 1988. A surrender, when properly executed, extinguishes the leasehold interest surrendered. The bedrock maxim applies: nemo dat quod non habet. If the lessor had no estate to transfer at the time of the alleged transfer, no valid transfer could occur…..” ii) “Applying the statutory framework, there is cogent documentary material that the earlier lease was surrendered in 1988 and there is no credible evidence before the court that the mandatory preconditions to a valid transfer (rent clearance, rates clearance, and presidential consent) were satised before the purported transfer to the petitioner...” iii) “Consequently, on the legal principles discussed, no lawful subsisting lease was available to be transferred; the purported transfer cannot therefore give the petitioner a title that the Constitution protects in the sense contended.” Further, the Court observed that: “ Registration of an interest in land is prima facie evidence of a proprietary right, but the register is not a device to authorise an otherwise unlawful transfer. Where the register itself contains an entry obtained by fraud or where the underlying transaction was invalid because of unfullled statutory preconditions, the registered land act permits inquiry and rectication consistent with the rule of law.” 33. These ndings settled the question of legality and validity of the Plainti’s lease, leaving nothing for this Honourable Court to reopen. The Plainti had argued that the current proceedings arise from a “fresh cause of action” allegedly triggered by the County Government’s acts of reclamation in 2023. This argument is legally untenable. Once the High Court determined that no valid lease existed, the Plainti was divested of any recognizable interest in the suit property. 34. The subsequent administrative actions by the County Government of Kwale could not amount to a new cause of action where the Plainti held no lawful title. The doctrine of “ex turpi causa non oritur action” applied that was no cause of action can arise from an illegality. In the case of “Uhuru Highway Development Limited – Versus - Central Bank of Kenya & 2 others [1995] eKLR”, the Court of Appeal held that rights founded upon illegalities could not be enforced. 35. The County Government of Kwale, as successor to the County Council of Kwale, merely exercises its legitimate statutory mandate over public land that reverted to it upon the surrender of the 1978 lease. 36. The Plainti had further sought to rely on the alleged sub - divisions of the demised mother title into 18 sub – divided parcels as distinct parcels. This is the mother title giving birth the irregular sub - division titles that have been disowned by the 11th, 12th and 13th Defendants. The Learned Counsel argued that the sub - divisions could not confer validity upon an otherwise void mother title. The law was settled that a derivative title cannot enjoy a better legal standing than the root from which it sprung. To buttress his point he referred Court to the recent holding by the Supreme Court in the case of:- “Dina Management Limited – Versus - County Government of Mombasa & 5 others (Petition 8 (E010) of 2021” in support of this argument. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 13

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37. According to the Learned Counsel, the doctrine of res judicata also served broader public policy objectives, nality in litigation, certainty in property rights, and ecient use of judicial resources. To re - open a matter conclusively determined over two decades ago would undermine public condence in the judicial process and expose public land to perpetual disputes. 38. In conclusion, the Plaintis were seeking to reopen a matter conclusively determined by a court of competent jurisdiction in 2001. He prayed that the Court nds that it had no jurisdiction to entertain the application and suit and proceed to struck out with costs. C. The written submission by the 11th Defendant 39. The 11th Defendants/Respondents herein led their written submissions 18th November, 2025 through Mr. Kelvin Atuti Advocates. Mr. Atuti Advocate commenced by stating that these submissions were led in support of the Notice of Motion Application dated 9th October 2025, in which the 1st to 4th Defendants seeking for orders to strike out the Plaint and dismissing the suit for being res judicata, misconceived, and an abuse of the court process. 40. The 11th Respondent fully aligns with the said application, as supported by the Replying Adavit of BRIAN IKOL, sworn on the 18th November 2025. The Learned Counsel relied on the following three ( 3 ) issues for determination. Firstly, whether the present suit was “res judicata” as a consequence of “Mombasa High Court Petition”. The Counsel averred that the doctrine of res judicata is anchored in Section 7 of the Civil Procedure Act, which bars courts from entertaining matters that have been nally determined by a competent court. This doctrine promotes certainty in litigation and protects parties from repetitive and vexatious suits. To support this position he cited the case of “IEBC – Versus - Maina Kiai” (Supra) where the Court of Appeal held that res judicata applies where the issues in dispute were “directly and substantially in issue” in a former suit and where the parties, or their privies, litigated under the same title. The Court emphasized that litigation must come to an end and that re - opening concluded disputes undermines judicial integrity. 41. The Counsel informed Court that the Plaintis’ current claim is based on the same leasehold interest and the same alleged renewal that were the subject of Mombasa High Court Petition. That matter was heard and nally determined by Hon Justice Khaminwa on 9th March 2001. The Plaintis were parties to that suit, and the Commissioner of Lands - whose statutory successor was the 11th Respondent was also a party. Further, in the case of:- “E.T – Versus - Attorney General & Another [2012] eKLR”, the High Court held that res judicata extends to matters that ought to have been raised in the former suit and condemned attempts to avoid res judicata by presenting old grievances under new guises. Additionally, the Supreme Court in the case of: “Benjoh Amalgamated Ltd & Another – Versus Kenya Commercial Bank Limited [2014] eKLR” reinforced the principle that courts must be vigilant to prevent litigants from re-litigating matters already settled. According to the Counsel, from these authorities, the present suit satised every element of res judicata and was therefore barred. 42. Secondly, whether the present suit was an abuse of the court process. The Learned Counsel averred that even assuming “res judicata” did not apply, this suit would still amounted to an abuse of the court process. The Court of Appeal in the case of:- “Muchanga Investments Ltd – Versus - Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR” dened abuse of process to include:re-litigation of previously decided issues,forum shopping, and.use of judicial procedures for ulterior motives. 43. The Court stressed that re-opening concluded disputes constituted improper use of judicial machinery. Here, the Plaintis sought to challenge a Judgment delivered over 20 years ago without presenting any new facts, without any legal change, and without having appealed the earlier decision. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 14

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Their actions were clearly intended to circumvent a binding Judgment through a fresh suit rather than through lawful appellate channels. This amounted to a blatant misuse of the court process. 44. Thirdly, whether the National Land Commission could rely on the 1999 Judgment. The Commissioner of Lands was a party in the Mombasa High Court Petition. Under the current legal framework:Article 67(2)(a) of the Constitution assigns NLC the administrative land management functions formerly undertaken by the Commissioner of Lands; andSection 5 of the National Land Commission Act codies NLC as the statutory successor to the Commissioner.As such, the 11th Respondent was legally entitled—and duty-bound—to rely on the determinations made in the year 1999 proceedings. A binding Judgment could not be defeated merely by suing the successor of a public oce. In the case of:- “Republic – Versus - Land Registrar, Taita Taveta & Another Ex - Parte Elijah Mwangi [2019] eKLR”, the High Court armed that statutory successors inherit the obligations, responsibilities, and legal consequences of their predecessors, including prior court Judgments. Therefore, the Plaintis could not avoid the legal eect of the Judgment from the Mombasa High Court case by targeting the institution that succeeded the Commissioner of Lands. 45. Finally, the Learned Counsel stressed that the Plaintis’ suit was fundamentally defective. They were attempting to resurrect issues conclusively resolved more than two decades ago. No new evidence had been provided nor had any legal or factual basis been established to justify revisiting the earlier decision. Their claim was in direct conict with the doctrines of res judicata and nality of litigation. The High Court in 1999 expressly deemed the Plaintis’ alleged lease to be unlawful. That Judgment remained unchallenged. To allow the present suit to proceed would undermine the certainty of judicial decisions and expose parties to perpetual litigation. It was essential that this Honourable Court upholds the integrity of the judicial process by refusing to entertain a matter already settled. 46. In conclusion, the Learned Counsel urged the Honourable Court to: a. declare that the present suit was res judicata pursuant to Section 7 of the Civil Procedure Act, Cap. 21. b. nd the suit constituted an abuse of the court process; c. strike out and dismiss the Plaint in its entirety; and d. arm and uphold the ndings in Mombasa High Court Petition. VI. Analysis and Determination 47. I have carefully read and considered the pleadings herein, being the applications dated 29th October, 2024 and 9th October, 2025 respectively, the written submissions, myriad of cited authorities and the relevant provisions made by the parties, the Constitution of Kenya, 2010 and statures 48. In order to arrive at an informed, just, reasonable and Equitable decision, the Honorable Court has framed the following four (4 ) issues for determination:a. Whether the Notice of Motion application dated 29th October, 2024 meets threshold required of a temporary injunction under Order 40 Rules 1 of the Civil Procedures Rules, 2010. b. Whether the Notice of Motion application dated 9th October, 2025 meets threshold required of having the application and suit struck out for having oended the Doctrine of Res - Judicate as founded under the provision of Section 7 of the Civil Procedure Act, Cap. 21. c. Whether the parties herein were entitled to the reliefs sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 15

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d. Who will beasr the Costs of Notice of Motion applications dated 29th October, 2024 and 9th October, 2025. Issue No. a). Whether the Notice of Motion dated 29th October, 2024 meets threshold required of a temporary injunction under Order 40 Rules 1 of the Civil Procedures Rules, 2010. 49. Under this sub – title, the main issue here is whether the Plainti is entitled to be granted the relief of an interlocutory injunction. The application herein is premised under the provision of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law. Which provides as follows: Order 40, Rule 1 Where in any suit it is proved by adavit or otherwise— 50. a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or b) that the Defendant threatens or intends to remove or dispose of his property in circumstances aording reasonable probability that the Plainti will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks t until the disposal of the suit or until further orders. Fundamentally, the principles applicable in an application for an injunction were laid out in the celebrated case of “Giella – Versus - Cassman Brown & Co Limited (1973) EA 358”, where it was stated: “ First an applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 51. The three conditions set out in “Giella (supra)”, need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR”: -, “ These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sucient basis to grant an interlocutory injunction, the court must further be satised that the injury the respondent will suer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 16

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The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”. 52. In dealing with the rst condition of prima facie case, the Honorable Court guided by the denition melted down in the famous case “MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) KLR 125” of: -, “ So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter” 53. As the Court previously observed in this ruling, the Plainti has exhibited Certicates of Lease for parcels Kwale/Diani Beach Block/1270–1287, each registered in its name for a 99‑year leasehold interest commencing 1st November 1999. The Plainti has also produced evidence of subdivision and change of user duly approved by the Commissioner of Lands in 1999. 54. Legally speaking, these documents “prima facie” establish legal ownership and proprietary rights under the provision of Article 40 (1) & ( 2 ) of the Constitution of Kenya, 2010 and the Section 24 and 25 of the Land Registration Act, No. 3 of 2012, which vest absolute ownership and rights of use and possession in the registered proprietor. It is instructive to note that the titles have been vehemently challenged on the basis that they were acquired irregularly, illegally and perhaps through fraudulent means. The Defendants rely on titles allegedly issued in the year 2024 following a re - survey of the demised mother title, on the basis that the Plainti’s lease expired in 2013. However, the Plainti has demonstrated that its lease was extended in 1999 for a further 99 years, meaning the alleged expiry in 2013 is factually and legally untenable. Certainly, these are pertinent issues to be probed and interrogated further during a full trial exclusively by this Court and not any other Court. 55. Under the provisions of Article 40 ( 6 ) of the Constitution of Kenya, 2010 and Section 26(1) of the Land Registration Act, No. 3 of 2012 – the proprietary rights do not extend to any property that has been acquired unlawfully. Further, that a Certicate of title is prima facie evidence of ownership and is indefeasible except where obtained through fraud, misrepresentation, or illegality. The Plainti has pleaded that the 5th to the 10th Defendants’ titles – No. 2302 and 2303 - were procured irregularly and fraudulently, which is a justiciable issue for trial. 56. The Plainti has shown that the Defendants trespassed on the suit properties, evicted tenants, and collected rent without authority. Such acts amount to infringement of proprietary rights, which the Court is enjoined to protect under Article 40 of the Constitution. 57. In the case of “Mbuthia – Versus - Jimba credit Corporation Ltd 988 KLR 1”, the court held that; “ In an application for interlocutory injunctions, the court is not required to make nal ndings of contested facts and law and the court should only weigh the relative strength of the party’s cases.” 58. Similarly, in the case of “Edwin Kamau Muniu – Versus - Barclays Bank of Kenya Ltd” the court held that; “ In an interlocutory application to determine the very issues which will be canvassed at the trial with nality All the court is entitled at this stage is whether the applicant is entitled to an injunction sought on the usual criteria.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 17

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59. On the basis of the Plainti’s Certicates of Lease, the extension of lease by the Commissioner of Lands, and the evidence of trespass and interference by the Defendants, I am satised that the Plainti has established a prima facie case with a probability of success as enunciated in the case of “Giella Versus - Cassman Brown & Co. Ltd (Supra)”. The Plainti’s proprietary rights are apparent, and the Defendants’ actions, premised on contested and prima facie irregular titles, call for explanation at trial. 60. The second principle in “Giella – Versus - Cassman Brown & Co. Ltd (Supra)” requires the applicant to demonstrate that they stand to suer irreparable injury which cannot be adequately compensated by an award of damages if the injunction is withheld. With regards to the second limb of the Court of Appeal in “Nguruman Limited (supra)”, held that, “ On the second factor, that the applicant must establish that he “might otherwise” suer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.” 61. On the issue whether the Applicant will suer irreparable harm which cannot be adequately compensated by an award of damages, the Applicant must demonstrate that it is a harm that cannot be quantied in monetary terms or cannot be cured. The Plainti has exhibited Certicates of Lease over the 18 sub – divided parcels, which confer exclusive rights of ownership, possession, and use. The Defendants have trespassed, evicted tenants, and purported to collect rent. Such actions amount to continuing violation of proprietary rights, which cannot be adequately compensated by damages. The judicial decision of “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (2018) eKLR” provides an explanation for what is meant by irreparable injury and it states; “ Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sucient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.” 62. Further in the case of “Kenya Breweries Limited & Another – Versus - Washington Okeyo [2002] eKLR”, the Court of Appeal held that where a party’s proprietary rights are threatened, damages are not always an adequate remedy. The Plainti’s tenants were forcefully evicted in July 2024, and the Defendants have since been renting out the premises. This not only deprives the Plainti of income but also undermines its ability to exercise control over its property. The loss of goodwill, tenant relationships, and control over land are injuries that cannot be quantied in monetary terms. 63. In the case of “Olympic Sports House Limited – Versus - School Equipment Centre Ltd [2012] eKLR”, the Court held that interference with possession and business operations constitutes irreparable harm. The Defendants relied on titles allegedly issued in the year 2024, which the Plainti contends were procured through fraud and misrepresentation. If the Defendants are allowed to continue dealing with the land, the Plainti risks permanent dispossession, alienation, and waste of the property. The Plainti has demonstrated that unless injunctive relief is granted, it stands to suer https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 18

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irreparable harm in the form of continuing trespass and interference with proprietary rights, unlawful eviction of tenants and loss of goodwill, and risk of permanent alienation of its land. These are injuries that cannot be adequately compensated by damages. 64. Quite clearly, the Applicant would not be able to be compensated through damages being the land according to them was fraudulently subdivided hence the same has to be determined through a full trial having preserved the suit property. The Applicant has therefore satised the second condition as laid down in “Giella’s case”. 65. Thirdly, the Applicant has to demonstrate that the balance of convenience tilts in his favour. In the case of “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (Supra)” which dened the concept of balance of convenience as: “ The meaning of balance of convenience will favour of the Plainti' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintis, the inconvenience caused to the Plainti would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintis to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plainti who will suer. In other words, the Plainti has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”. 66. In the case of “Paul Gitonga Wanjau – Versus - Gathuthis Tea Factor Company Limited & 2 others (2016) eKLR”, the court dealing with the issue of balance of convenience expressed itself thus:“ Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suer if the injunction was granted and he should ultimately turn out to be right and that which the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suer the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is signicant irreparable harm, it may inuence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.” 67. The Plainti holds Certicates of Lease for the suit properties, duly issued for a 99‑year term commencing 1st November, 1999. The Plainti has been in possession through tenants and a caretaker, and has produced tenancy agreements and rent receipts. The Plainti has been in possession through tenants and a caretaker, and has produced tenancy agreements and rent receipts. 68. The Defendants position was that they rely on titles allegedly issued in the year 2024 after a resurvey, premised on the claim that the Plainti’s lease expired in the year 2013. However, the Plainti has demonstrated that its lease was extended in the year 1999 for a further 99 years, making the alleged expiry untenable. The Defendants have already trespassed, evicted tenants, and attempted to collect rent, thereby disrupting the Plainti’s quiet possession. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 19

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69. If the injunction is not granted and the Defendants continue to interfere with the property, the Plainti risks permanent dispossession, waste, and alienation of its land. Conversely, if the injunction is granted and the Defendants are later found to have valid claims, they will only have been delayed in exercising their rights, which can be compensated by damages. 70. The balance of convenience in this case clearly tilts in favour of the Plainti. The Plainti is the registered proprietor with original Certicates of Lease, while the Defendants’ titles are prima facie impeachable. Preserving the Plainti’s possession and restraining further interference ensures that the subject matter of the suit is not wasted or alienated before trial. The decision of “Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR” where the learned judge oered further elaboration on what is meant by “balance of convenience” and stated; “ The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.” 71. The balance of convenience lies in favour of granting the injunction and maintaining the status quo pending the hearing and determination of the suit, I am convinced that there is a lower risk in granting orders of temporary injunction than not granting him, as I wait to hear the suit on its merits. This is especially so because I have not had the opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the claim of the Applicant and it will be in the interest of both the Applicant and the Respondents that the suit property is preserved until the hearing and determination of the suit. 72. In the case of:- “Robert Mugo wa Karanja – Versus - Ecobank (Kenya) Limited & Another [2019) eKLR” where the court in deciding on an injunction application stated; “ circumstances for consideration before granting a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...” 73. I am convinced that if orders of temporary injunction are not granted in this suit, the property in dispute might be in danger of being dealt in the manner set out in the application and apprehended by the Plainti/Applicant. In view of the foregoing, I strongly nd that the Plainti has met the criteria for grant of orders of temporary injunction. Issue No. b). Whether the Notice of Motion application dated 9th October, 2025 meets threshold required of having the application and suit struck out for having oended the Doctrine of Res Judicata as founded under the provision of Section 7 of the Civil Procedure Act, Cap. 21. 74. Under this sub – title, the Honourable Court will be critically examining whether the specic objections by the 1st, 2nd 3rd & 4th Defendants has any merit or not. Krav Marine Limited, the Plainti, instituted ELC Case No. E027 of 2024 against the Governor, County Government of Kwale, and others, seeking declaratory and injunctive reliefs over a disputed parcel of land in Diani, Kwale County. The 1st –4th Defendants led a Notice of Motion dated 9th October 2025, seeking to strike out the suit on grounds that it is res judicata, citing the Mombasa High Court Petition as the former suit in which the issues were allegedly determined. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 20

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75. The objection raised is basically that the instant suit is duplication of a similar one as this one in terms of the subject matter, the same parties and substratum being substantially and directly the same as the instant case. Additionally, that in the previous case being the Mombasa High Court Petition, it was heard by a Court of competent jurisdiction and nally a Judgement was delivered. In the given circumstances, this suit oends the doctrines of “Sub – Judice” and “Res Judicata”. 76. The Plainti opposes the application on two principal grounds: 77. a. Procedural Incompetence: The application was led and prosecuted by advocates who had not served a Notice of Change of Advocate as required by Order 9 Rules 5 and 6 of the Civil Procedure Rules, 2010. The Plainti contends that the application is fatally defective and incompetent for want of service, and that the advocates are not properly on record. b. Improper Mode of Raising Res Judicata: The Plainti argues that the plea of res judicata is improperly raised in an interlocutory application (Notice of Motion) rather than being specically pleaded in the Defence, as required by Order 2 Rule 4. Critically speaking, and for clarity sake, the Honourable Court has decided to further delineate the issue under this sub – title into the following sub - issues:a. Whether the 1st – 4th Defendants’ Advocates were properly on record and whether failure to serve a Notice of Change of Advocate renders the application incompetent; b. Whether the application meets the procedural requirements for interlocutory applications under Orders 51 and 42; c. Whether the doctrine of res judicata is properly invoked in the present application, considering Section 7 of the Civil Procedure Act and relevant case law; d. Whether the Environment and Land Court can strike out or dismiss the suit on the basis of res judicata at the interlocutory stage; e. What remedies are available to the Plainti in the event of procedural irregularity; f. What are the legal consequences of striking out versus dismissal versus stay in the context of res judicata; g. What is the burden of proof and evidentiary threshold for establishing res judicata in a preliminary application; h. What is the interplay between abuse of process and res judicata; i. What is the recent appellate guidance on these issues? Failure to serve a Notice of Change of Advocates 78. The Counsel for the Plainti has attacked legal representation of the 1st to 11th Defendants by the current Advocates allegedly having breached the provisions of Order 9 Rules 5 and 6 of the Rules. They allege that the Law rm of Messrs. MKJ Advocates, LLP in place of the Law rm of Messrs. Munyao, Muthama & Kashindi Advocates Company Advocates was done without having led any empirical documentary evidence in form of a Notice of Change of Advocates as envisaged under the provision of Order 9 Rules 5 and 6 of the Civil Procedure Rules, 2010. 79. The provision of Order 9 of the Civil Procedure Rules, 2010, governs the appearance of parties by Advocates and the procedure for change of advocate. The relevant provisions are: - https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 21

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Order 9 Rule 5: “A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is led in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the nal conclusion of the cause or matter, including any review or appeal.” Order 9 Rule 6: “The party giving the notice shall serve on every other party to the cause or matter (not being a party in default as to entry of appearance) and on the former advocate a copy of the notice endorsed with a memorandum stating that the notice has been duly led in the appropriate court (naming it).” Order 9 Rule 9: Where a change of advocate is eected after judgment, it must be by order of the court or by consent of the outgoing and incoming advocates. 80. Kenyan courts have consistently held that failure to serve a Notice of Change of Advocate as required by Order 9 Rules 5 and 6 renders any subsequent pleadings or applications led by the new Advocate incompetent and liable to be struck out. The rationale is that the former Advocate remains the Advocate on record until proper notice is led and served, and any documents led by an advocate not properly on record are a nullity. 81. In the case of:- “Kabiru & another – Versus - Amboso [2024] KEHC 14287 (KLR)”, the High Court struck out pleadings led by an advocate who had not led or served a Notice of Change of Advocate, holding that “all pleadings led by the said rm ought to be struck out”. 82. Additionally, in the case of:- “Rutto – Versus - Cheptoo [2024] KEHC 13574 (KLR)”, the court emphasized that “any record led by the Advocate, other than the one who entered appearance is therefore invalid. Having found so, there is no point in determining the merits of the application”. 83. The eect of non-service is that the former advocate remains on record, and any application or pleading led by the new advocate is a nullity ab initio. The court has no jurisdiction to entertain such an application, and it must be struck out without consideration of its merits. In the instant matter, if the 1st – 4th Defendants’ advocates led the Notice of Motion dated 9th October 2025 without rst ling and serving a Notice of Change of Advocate as required by the provision of Order 9 Rules 5 and 6 of the Rules, then the application is incompetent and liable to be struck out. The court should not proceed to consider the merits of the application, including the plea of res judicata, until the procedural defect is cured. 84. As discussed above, the courts have consistently held that pleadings or applications led by advocates not properly on record (i.e., without ling and serving a Notice of Change of Advocate) are incompetent and a nullity. The court will strike out such pleadings without considering their merits. 85. To support this position, the Court wishes to cite the case of:- “Ibacho Trading Company – Versus Ondora & 4 others [2024] KEHC 13323 (KLR)”, the court struck out a Notice of Change of Advocate and all subsequent pleadings for want of proper service, emphasizing the mandatory nature of Order 9 Rules 5 and 6. 86. Under the provision of Order 51 and Order 42 of the Civil Procedure Rules: Procedural Requirements for Notice of Motion and Interlocutory Applications, Order 51 Rule 1 provides that all applications to the court shall be by motion and shall be heard in open court unless the court directs otherwise. Order https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 22

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51 Rule 4 requires that every notice of motion state in general terms the grounds of the application, and where grounded on evidence by adavit, a copy of any adavit intended to be used shall be served. Order 51 Rule 3 mandates that no motion shall be made without notice to the parties aected, except in cases of urgency where the court may dispense with notice and Order 51 Rule 5 empowers the court to dismiss or adjourn an application for want of sucient notice. 87. Further Order 42 of the Civil Procedure Rules governs appeals and is not directly applicable to interlocutory applications at rst instance, but its provisions regarding service and notice are instructive for ensuring procedural fairness. The requirement of service is fundamental to the right to be heard and to procedural fairness. Failure to serve an application or supporting adavit may result in the application being dismissed or adjourned. 88. If the Notice of Motion was not served on the Plainti, or if the Notice of Change of Advocate was not served, the application is procedurally defective. The court may dismiss the application for want of proper notice and service, without delving into the merits. In the present case, the 1st – 4th Defendants have not demonstrated that a Notice of Change of Advocate was served upon the Plainti’s advocates. The issue was raised in the Plainti’s Replying Adavit and submissions, yet the Defendants failed to rebut or cure the omission, even in their supplementary adavit and submissions. 89. In the case of “Lalji Bhimji Sanghani Builders & Contractors – Versus - City Council of Nairobi [2012] eKLR”, the Court held: “ ……..the Court is not entitled to simply ignore a procedural misstep... A party who without any justication decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective [of overriding objective] for assistance…….” 90. This Court aligns with that reasoning. The failure to serve a Notice of Change of Advocate is not a mere technicality to be cured under the provision of Article 159 ( 2 ) ( d ) of the Constitution of Kenya, 2010; it is a jurisdictional defect that renders the application incompetent. The Court holds that this being a Court of record and these provisions having been couched in mandatory terms, there will be need to have this anomaly regularized within stipulated stringent timeframe accordingly. Plea of Res judicata 91. Be that as it may, I will still consider the merits of the application by the 1st to 4th Defendant as if the same was properly led. As already stated so elaborately, “the doctrine of Res Judicata” is codied under the provision of Section 7 of the Civil Procedure Act, Cap. 21 which provides as follows:“ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such court.” Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation. (2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 23

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Explanation. (4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation. (5)—Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation. (6)—Where persons litigate bona de in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 92. Undoubtedly, the Doctrine of Res-judicata is a point of law as clearly stated above. Subsequently, it has the potential of determining a matter summarily. However, to proof it, there would be need to interrogate the issues of the alleged cases. This would call for intense probing of the facts. 93. From the above legal provisions, the following are the ingredients that constitutes and the bar of “the Doctrine of Res Judicata” to be eectively raised and upheld an account of a former suit, the following elements must all be satised, as they are rendered not in disjunctive, but conjunctive terms:- 94. a. The suit or issue was directly and substantially in issue in the former suit. b. That former suit was between the same parties or parties under whom they or any of them claim. c. Those parties were litigating under the same title. d. The issue was heard and nally determined in the former suit. e. The court that formerly heard and determined the issue was competent to try the subsequent suit or this suit in which the issue is raised. It is trite law that “Res judicata” is a point of law and a true preliminary objection, if proven to exist a court ought to allow its procession and dismiss the entire suit. The Court of Appeal in “IEBC – Versus - Maina Kiai & 5 others (2017)eKLR” observed that:‘Res Judicata is a matter properly to be addressed in limine as it does possess jurisdictional consequence because it constitutes a statutory peremptory preclusion of a certain category of suits. …Thus for the bar of Res Judicata to be eectively raised and upheld on account of a former suit, the following elements must all be satised, as they are rendered not in disjunctive, but conjunctive terms; a. The suit or issue was directly and substantially in issue in the former suit. b. That former suit was between the same parties or parties under whom they or any of them claim. c. Those parties were litigating under the same title. d. The issue was heard and nally determined in the former suit. e. The court that formerly heard and determined the issue was competent to try the subsequent suit or this suit in which the issue is raised. The rule or doctrine of Res - Judicata serves the salutary aim of bringing nality to litigation and aord parties closure and respite from the specter of being vexed, haunted and hounded by issues and suits that have already been determined by competent court. It is designed as a pragmatic and common sensual protection against wastage of time and resources in an endless https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 24

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round of litigation at the behest of intrepid pleaders hoping, y a multiplicity of suits and for a, to obtain at last outcomes favorable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of Res Judicata this rest in the public interest for swift, sure and certain justice.’ 95. 96. 97. 98. The doctrine of “res judicata” is important in adjudication of case and serves two important purposes: i. it prevents multiplicity of suits which would ordinarily clog the courts, and heave unnecessary costs on the parties to litigate and defend two suits which ought to have been determined in a single suit and ii. it ensures litigation comes to an end; disappointed parties are barred from camouaging already decided cases in new garment in the art of pleadings. In order therefore to decide as to whether this case is res judicata, a court of law should always look at the decision claimed to have settled the issues in question and the entire pleadings of the previous case and the instant case to ascertain:i. what issues were really determined in the previous case; ii. whether they are the same in the subsequent case and were covered by the decision of the earlier case. iii. whether the parties are the same or are litigating under the same title and that the previous case was determined by a court of competent jurisdiction. The test in determining whether a matter is res judicata as stated was summarized in “Bernard Mugo Ndegwa – Versus - James Nderitu Githae and 2 Others (2010) eKLR”, as follows that: i. The matter in issue is identical in both suits; ii. The parties in the suit are the same; iii. Sameness of the title/claim; iv. Concurrence of jurisdiction; and v. Finality of the previous decision. The doctrine of res judicata was discussed by the Supreme court in the case of “John Florence Maritime Services Limited (Supra)”. In paragraph 86, the court restated the elements that must be proved before a court may arrive at the conclusion that a matter is res judicata. The ration in this decision was that, for the Preliminary objection to succeed, the Courts needed have a look at the “the entire pleadings and record”. Indeed some judges have held, with some justication, that the plea of Res Judicata should be taken by a formal application. It is for this reason that this Court was of the strong view that the 2nd and 3rd Defendants would have opted to fully invoke the provision of Order 51 Rule 14 of the Civil Procedure Rules, 2010 by at least ling both the Replying Adavit along with the Preliminary object which would have enabled them to clearly bring out all these issues of facts which are a great impediment in an objection which is based purely on law. Further, the court stated:“ For Res judicata to be invoked in a civil matter, the following elements must be demonstrated: a. There is a former judgement or order which was nal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 25

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99. 100. b. The judgement or order was rendered by a court having jurisdiction over the subject matter and the parties, and c. There must be between the rst and second action identical parties, subject matter and cause of action.” The application relies on Mombasa High Court Petition No. 102 of 1999 as the former suit for purposes of res judicata. For the plea to succeed, the Defendants must provide the judgment or order in that case, and demonstrate that: a. The parties are the same or privies; b. The subject matter and issues are the same; c. The court was competent; d. The matter was heard and nally determined Having analyzed the doctrine of res judicata and the principles surrounding it; the Honourable Court shall therefore examine whether the parties herein are entitled to the reliefs sought. Issue No. c). Whether the parties herein were entitled to the reliefs sought. 101. Under this sub – heading, the Honourable Court will endeavor to apply the above stated principles to the instant case in order to see whether indeed, this matter oends “the Doctrine of Sub – Judice”. The Defendants claim that the parties, cause of action and subject matter of the suit herein was the same to that of the Civil Suit in “the High Court of Kenya in Mbsa, HC Pet No. 102/1999” in Mombasa as shown from the Judgment and Decree. 102. For ease of reference, and taking that the 1st to 4th and 11th Defendant have anchored and real made a meal out of the Mombasa High Court Petition, the Court has decided to re – produce the said Judgement verbatim:“republic Of Kenya In The High Court Of Kenya At Mombasa Petition No. 102 Of 1999 Jav Marine Limited………………………………………………petitioner - Versus The Land Registrar, Kwale.......................................1St Respondent The Commissioner Of Land.....................................2Nd Respondent Thecountycouncil Of Kwale..................................3Rd Respondent The Attorney-general. ...........................................4Th Respondent Judgment (khaminwa; J.) The Petitioner, Krav Marine Limited, a company incorporated in 1994, seeks relief under Section 84 of the Constitution (1969) challenging administrative decisions taken by the 1st – 3rd Respondents and asking this Court for declarations, certiorari, prohibition, injunctive relief and, alternatively, compensation. The petition arises from the Petitioner's purchase https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 26

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and registration of an interest in Kwale/Diani Beach Block/135, the entry of that interest in the Land Register, and subsequent administrative steps by the Commissioner of Lands and the County Council rejecting applications for sub - division, change of user and extension/ renewal of lease on the subject land. The Respondents rely on documentary material (notably the Commissioner's letter of 13 October 1999, Ref. 46588/243),which states that the original lease. (granted in 1978) had been surrendered in 1988, that no rent and no rates clearances are on record, and that no Presidential consent - required under the policy and law 'for transfers of second-row beach parcels - exists in the record. The Commissioner therefore rejected the Petitioner's administrative applications. I heard argument on the record, considered the adavits and exhibits placed before the Court, and requested written submissions which were led and considered. This Judgment follows. The material facts, largely uncontested, may be summarized as; The Petitioner says it was introduced to the property in 1993; it formed Krav Marine Ltd. in 1994 (with a Kenyan director/shareholder as required by company law at the time);it paid Kshs. 95,000 through its then-advocates for the transfer it received documentary evidence (transfer instruments and a Certicate of Lease) through the post in late 1994;.it entered into possession and developed and operated businesses on the land between c.1994 and 1999; and it made applications For subdivision, change of user and renewal/extension of the The Commissioner's ocial record discloses that the 1978lease was surrendered on 4 August 1988. The record also shows no rent clearances issued by the Ministry (or appropriate government oce) and no rates. clearances issued by the County Council for the period before the purported transfer. The record likewise discloses no Presidential consent for transfer. These circumstances form the basis of the Respondents' contention that no valid subsisting lease existed to be transferred. I distill the competing contentions to the following issues: (i) Did the Petitioner, by registration and the acts pleaded, acquire a valid, enforceable leasehold interest that the Constitution protects? (ii) If not, does the State's conduct (registration in the Land Register; months/ years of possession; local government dealing) give rise to a legitimate expectation or other equitable remedy that should restrain the Respondents from acting as they propose? (iii) Were the Respondents' actions procedurally unfair or otherwise unlawful? (iv) If the register is rectied, what remedies are available to an innocent purchaser? I have further summarized the relevant legal provisions herein below as, follows: a) Constitution. (1969): - Sections 70.(safeguarding fundamental rights) and 75 (protection of property), must be read together: deprivation of property is permissible only in accordance with law" and upon payment of compensation where the law so provides. Constitutional protection is accorded to property rights lawfully acquired under the law. b) Government Lands Act (Cap. 280) - Governs management and alienation of government land. Transfers and allocations of public land are subject to the Act and to conditions and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 27

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consents required by policy. The special status of coastal second-row beach plots in policy and practice means that transfers require higher level consents (including Identical consent where mandated). : Registered Land Act (Cap, 300) - Establishes the system of registration The Act also contemplates rectication of register entries made in error or fraud and subjects registration to statutory safeguards. The register is not impregnable where entries arise from fraud or where mandatory statutory preconditions to a transfer are absent. d) Principles of Administrative Law and Legitimate Expectation - Administrative decisions must be lawful and fair; legitimate expectation may be invoked where a public authority, by representation or conduct, creates an expectation which fairness requires should be honoured. But such expectation cannot compel an authority to act contrary to MANDATORY statutory requirements. e) Relevant authorities - Among the authorities considered by counsel and the court are “Wreck Motor Enterprises – Versus - Commissioner of Lands” (paradigm for principle that irregular/ultra vires allocations do not produce enforceable rights), “Njuguna – Versus - Minister for Agriculture” (on limits of legitimate expectation), and earlier high court authority stressing that natural justice must be observed in administrative processes. I approach the issues mindful of the dual role assigned to courts: to protect rights and to respect the rule of law which governs public land. The protection of bona de purchasers is important for commercial certainty; however, the law also imposes mandatory conditions where public land and special classes of land are involved. The competing imperatives protecting property interests and ensuring public land is alienated only in accordance with statute and policy, must be reconciled by faithful application of the law. (i) Was there a valid subsisting lease to transfer? The undisputed documentary record before the Commissioner (and placed in evidence) indicates a surrender of the 1978lease on 4 August 1988, A surrender, when properly executed, extinguishes the leaseho1d interest surrendered. The bedrook maxim applies: “nemo dat quod non habet”. If the lessor had no estate to transfer at the time of the alleged transfer, no valid transfer could occur. Petitioner's evidence of payment, and receipt of work (transfer instruments, certicate) strongly transaction. However, the public law gap: the mandatory pre conditions (rent clearance, rates clear ice and - for second-row beach plots - Presidential consent) do not appear have been satised. The law does not permit a registry entry to be treated as cleansing the absence of statutory preconditions which the Act and policy require, To hold otherwise would be to permit circumvention of mandatory safeguards for public land. On this issue, there is therefore no dispute of material fact that the lease had been surrendered and that mandatory statutory preconditions to any lawful transfer were not established in the ocial record. The consequence of this factual matzix is that a lawful subsisting lease to be transferred did not exist in the hands of the purported transferors at the relevant time. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 28

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(ii) Legitimate expectation and protection arising from registration and possession The Petitioner/invokes two equitable and administrative law arguments: (a) registration in the land register created a legitimate expectation of protection from administrative interference; and (b) long possession and investment ought to attract protection. Legitimate expectation arises where a public authority's representations or consistent past practice cause a person to reasonably expect a benet. The court must balance fairness to the individual against the public interest - the public interest here being the lawful administration of public land subject to mandatory conditions. Importantly, as the Court of Appeal has said, legitimate expectation cannot be allowed to override clear statutory requirements. If the law requires Presidential consent and clearances, the State cannot be compelled to disregard those preconditions on account of post hoc representations. As to registration; registration of an interest in the Register is prima facie evidence of a proprietary right, but the register is not a devico to authorise an otherwise 'unlawful transfer., Where the register itself contains an entry obtained by fraud or where the underlying transition was invalid because of unlled statutory preconditions, the Registered Land Act permits inquiry and rectication consistent with the rule of law. Protection of an innocent Purchaser is ordinarily achieved, where wrong has been caused by rectication, by statutory indemnity or civil claims against the culpable parties. The court should not, by way of equitable estoppel or judicial declaration, validate an otherwise illegal alienation of public land. The Petitioner's possession and investment are important considerations of fairness; they impel the court to consider compensation or indemnity where rectication causes loss to an innocent party. They do not, however, validate a void or ultra vires transfer. To hold that they do would be to subvert the settled statutory regime for public land and to set a precedent with grave implications for the public interest. (iii) Procedural fairness The Petitioner argues procedural unfairness - that the Respondents made adverse ndings without a hearing. Administrative fairness requires that a person aected by adverse administrative action be given an opportunity to be heard in matters that aect their rights. Where the Commissioner considered that the transfer was questionable, basic fairness required notice and an opportunity to respond before any irreversible action such as de-registration or evictions. I must therefore examine the record to determine whether the Petitioner was aorded sucient process. The record demonstrates correspondence between the agencies and various parties. The Commissioner's letter of 13 October 1999 sets out the reasons relied upon. The Petitioner had an opportunity to lodge representations and to le this petition and the supporting adavit(s). The purpose of judicial review is to test the lawfulness of administrative action. Where an administrative body issues a. reasoned decision, and a party has channels of redress (including https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 29

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judicial review)', the court wil1 examine whether the process was fair in the circumstances. In this case, the Petitioner has had and has availed itself of judicial process. That said, if the record had shown an immediate dispossession without any chance to be heard, the Court would be concerned, I nd, on the present evidence, that the Petitioner had avenues of redress and has been given opportunities to be heard in these proceedings; and that the Commissioner's decision was coined and founded on ocial records remedies available to the Petitioner if this Court were to conclude. Applying the statutory framework to the facts, I nd: (a) There is cogent documentary material that the earlier lease was surrendered in 1988, (b) and there is no credible evidence before this Court that mandatory preconditions to a valid transfer (rent clearance, rates clearance, Presidential consent where required) were satised before the purported transfer to the Petitioner.(b) Consequently, on the legal principles discussed, no lawful subsisting lease was available to be transferred; the purported transfer cannot therefore give the Petitioner a title that the Constitution protects in the sense contended.(c) The Petitioner's registration and possession, while deserving respectful consideration, do not override the statutory safeguards regulating public land. The appropriate remedies for an innocent purchaser in this situation lie under the statutory indemnity or by private action for damages against those responsible for any fraud. (d) There is no persuasive evidence that the Commissioner acted mala de or in capricious breach of natural justice; the Commissioner's action was founded on ocial records and lawful duties, For these reasons, the Petition is without merit and this court makes the orders as hereinbelow: 1. The Petition dated 15th November 1999 is dismissed. 2. All the reliefs sought (declarations of proprietary rights, certiorari, prohibition and injunctive reliefs are refused. 3. The Petitioner shall pay the costs of the Respondents to be taxed. 4. I make no orders on the question of indemnity, which is actually a statutory matter to be addressed under the Registered Land Act and related procedure; the Petitioner is at liberty to pursue any statutory indemnity or private remedy it may have against those responsible for any misfeasance or fraud. Dated, Signed And Deivered at Mombasa this 9th day of March 2001. For the Petitioner:- Cassam Satchu-Advocato, For the Respondents: Ms. Wanjuku Mbiyu-State Counsel. Court Clerk: Esther. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 30

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103. 104. Be that as it may, from a critical assessment of the issues at hand, the Mombasa High Court Petition never critically dealt with the matters of the demised mother titles. It was more concerned with the issues of Judicial Review. Perhaps, its instructive to note that by that time, the Constitution of 2010 had not yet been promulgated and therefore High Court had the original and unlimited jurisdiction to deal with all matters including land. However, with the promulgation of the Constitution of Kenya, 2010 on 27th August, 2010, the Constitution donated powers to Parliament to legislate a legal framework elaborating on that broad constitutional framework with the legal mandate to deal with the Environment and Land Court as donated by Article 162 (2) ( b ) of the Constitution to hear and determine the issues raised by parties herein. Article 162 establishes the three tiers of Kenya’s Superior Courts. It provides thus:1) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2) 2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to- a) employment and labour relations; and b) The environment and the use and occupation of, and title to, land. 3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2) 4) The subordinate courts are the courts established under Article 169, or by Parliament in accordance with that Article In the discharge of the mandatory obligation placed on it by the Constitution, Parliament enacted the Environment and Land Court Act, No. 19 of 2011 and set out in details, the jurisdiction of the Court. The preamble of the Act reads as follows: “ An Act of Parliament to give eect to Article 162 ( 2 ) ( b ) of the Constitution to establish a superior court to hear and determine disputes relating to environment and the use and occupation of, and title to, land, and to make provision for its jurisdiction functions and powers, and for connected purposes” 105. Further, the provision of Section 13 of the Act outlines the jurisdiction of the court as follows: 13 Jurisdiction of the Court 1) The court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) b of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. 2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes- a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources. b) relating to compulsory acquisition of land; c) relating to land administration and management; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 31

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106. d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interest in land; and e) any other dispute relating to environment and land. 3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and health environment under Articles 42, 69 and 70 of the Constitution. 4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court 5) Deleted by Act No. 12 of 2012 6) Deleted by Act No. 12 of 2012 7) In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems t and just, including- a) interim or permanent preservation orders including injunctions; b) prerogative orders; c) award of damages; d) compensation; e) specic performance; f) restitution; or g) declaration; or h) costs It is to be noted that under Article 165(5), the Constitution expressly bars the High Court against exercising jurisdiction in respect of matters reserved for the Supreme Court or falling within the jurisdiction of the third tier superior courts established under Article 162(2) of the Constitution. Article 165(5) of the Constitution provides thus: “ The High Court shall not have jurisdiction in respect of matters: a. reserved for the exclusive jurisdiction of the Supreme Court under this Constitution, or b. falling within the jurisdiction of the courts contemplated in Article 162(2)” 107. A plain reading of the above constitutional and statutory framework on the jurisdiction of the Environment and Land Court reveals that the Environment and Land Court which is the court contemplated under Article 162(2)(b) of the Constitution, has a broad constitutional jurisdiction to hear and determine disputes relating to the environment and the use, occupation, and title to land. 108. In application of these elaborate legal principles stipulated herein above, I now wish to apply them to the instant case. To begin with, the Honourable Court while concurring with the contention by the Learned Counsel for the Plainti strongly hold that the suit does not oend the doctrine of Res Judicata for the following reasons. Firstly, in this case, the cause of action have been set out at Paragraph https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 32

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1 of the Amended Plaint dated 8th August, 2024. Without wanting to be appearing to be splitting hairs, the parties are clearly listed in the Mombasa High Court Petition and the Judgment are four (4) Respondents while this one has with thirteen (13) Defendants. 109. Secondly, the subject matter in the Mombasa Petition High Court was all that parcel of land known as the demised Mother title while in the current matter are on the 18 Sub – Divided parcels and two others being of land from the sub – division of the mother title being Kwale/Diani Beach Block/2302 and 2303 and Certicates of Title issued to the Plainti and some of the Defendants. Thirdly, the cause of action in this suit as set out at Paragraphs 7-21 of the Amended Plaint are not substantially and distinctly the same. From the Mombasa Court High Petition and the Judgment, the issues were not directly and substantially in issue between parties in this suit. The two causes of action arose at dierent times. 110. In a nutshell, and it’s not disputed, the High Court in Mombasa, sought judicial review orders against statutory bodies particularly the Land Registrar, the then Commissioner of Lands and the County Council of Kwale who had rejected applications for sub-division, Change of User and renewal of the lease in the demised mother title. In the said High Court case, the Plainti sought judicial review orders against the then Commissioner of Lands oce who had delayed in renewing a lease for demised mother title. Although the judicial review orders were declined, the Plainti had deponed that the said oce subsequently approved renewal of 99 years leasehold interest in the demised mother title as well as subdivision thereof into 16 residential plots and 2 commercial plots, and the Land Registrar Kwale issued the Plainti with Certicates of Leases for all the said suit properties between 6th September, 2000 and 23rd November, 2000,which were destroyed and replaced with Certicates of title issued in the year 2012 as pleaded in the Amended Plaint. 111. The said titles were sub-divisions from the then mother title upon receiving no objection letters from the defunct County Council of Kwale. The cause of action in the Amended Plaint was that the Defendants through inter-alia misrepresentation, fraud and unprocedural illegality purported to survey, adjudicate and allocate the above Plaintis suit properties as title No. Kwale/Diani Beach Block/2302 and 2303 in the year 2024 when the said land was unavailable for allocation or alienation. The present proceedings was a substantive suit inviting the court to interrogate disputed facts and make a decision on merits, on the other hand, seek declaratory, injunctive, orders of rectication of the land register and compensatory reliefs arising from fresh acts of trespass, interference, and unlawful dealings over the Plainti's property. These are distinct causes of action both in law and in fact. The High Court only dealt with the issues of Judicial Review but left other pertinent issues on title, use and occupation of the suit land untouched. Subsequently, those are the issues to be dealt with by the ELC. PARAGRAPH 112. Thus, from the above cited provision of the law, and based on the provisions of Article 162 (2) (b) of the Constitution of Kenya, Sections 3 and 13 of the ELC Act, No. 19 of 2011, Sections 150 of the Land Registration Act, No. 3 of 2012 and Section 101 of the Land Act, No. 6 of 2012 confers this court with unlimited and original jurisdiction to hear and determine on all matter pertaining to land and environment matters. 113. From the surrounding facts and inferences herein, by all means, the Honourable Court strongly holds that Doctrine of Res – Judicata is completely inapplicable here. 114. I further take note that in the present case, the 1st to 4th Defendants have not led a Defence. The plea of res judicata is raised for the rst time in an interlocutory application. This is procedurally irregular and amounts to an ambush. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 33

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115. The doctrine of res judicata is codied under Section 7 of the Civil Procedure Act, which bars relitigation of matters that have been nally determined by a court of competent jurisdiction. However, in “Independent Electoral and Boundaries Commission & Another – Versus - Stephen Mutinda Mule & 3 Others [2014] eKLR”, the Court emphasized that: “ ...no party should be permitted to travel beyond its pleadings...” 116. The Court cannot entertain a substantive defence through a preliminary application without proper pleadings. 117. The 1st to 4th Defendant prayed for the matter to be struck out for being res judicata. The Environment and Land Court (ELC) applies the same principles as other superior courts regarding striking out pleadings and the doctrine of res judicata. The provision of Order 2 Rule 15 of the Civil Procedure Rules empowers the court to strike out pleadings that disclose no reasonable cause of action, are scandalous, frivolous or vexatious, may prejudice or delay the fair trial of the action, or are otherwise an abuse of the process of the court. The court may order the suit to be stayed, dismissed, or judgment entered accordingly. 118. The distinction between striking out and dismissal is that striking out is generally for procedural defects or abuse of process, and does not operate as a bar to bringing a fresh suit unless the defect is incurable. Dismissal, especially on the merits or for res judicata, is a nal determination and bars re-litigation of the same issues. 119. The ELC has jurisdiction to determine pleas of res judicata, and may strike out or dismiss a suit at the interlocutory stage if all the elements are satised and the facts are not in dispute. Issue No. d). Who will bear the Costs of Notice of Motion applications 29th October, 2024 and 9th October, 2025. 120. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court rearmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. 121. I have well stated in previous precedence and most especially in “Sagalla Lodge Limited – Versus Samwuel Mazera Mwamunga & another (Suing as the Executors of Eliud Timothy Mwamunga – Deceased) [2022] eKLR”, that: “ “ 58. The Black Law Dictionary denes “Cost” to means, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. The issue of Costs is the discretion of Courts. From this provision of the law, it means the whole circumstances and the results of the case where a party has won the case. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 34

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events in this case is that the Notice of Motion application dated 7th December, 2021 by the Plainti has succeeded and hence they are entitled to costs of the application and that of the Defendants dated 21st December, 2021.” 122. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. In the present case, the Honourable Court elects to have the costs in the cause VII. Conclusion and Disposition 123. In long analysis, the Honorable Court has carefully considered and weighed the conicting parties’ interest as regards to balance of convenience. Clearly, the Plainti/ Applicant has a case against the Defendants/ Respondents. 124. Having said that much, there will be need to preserve the suit land in the meantime. In a nutshell, I proceed to order the following:a. That the Notice of Motion application dated 29th October, 2024 be and is hereby found to have merit and is allowed with costs in the cause. b. That a temporary injunction be and is hereby issued restraining the Defendants, whether by themselves, their servants, agents, employees, proxies or anyone claiming under them, from trespassing, entering, remaining on, occupying, leasing, charging, constructing on, developing, or in any other manner interfering with the Plainti’s ownership, possession or use of parcels Kwale/Diani Beach Block/1270 to 1287 pending the hearing and determination of this suit. c. For avoidance of doubt, the status quo orders granted on 1st July, 2024, varied on 23rd July, 2024 and extended on 22nd October, 2024 are hereby extended until nal determination of the suit. d. That the Notice of Motion application dated 9th October, 2025 be and is hereby found to be procedurally incompetent for failure to serve a Notice of Change of Advocate as required under Order 9 Rules 5 and 6 of the Civil Procedure Rules, 2010, lacks merits after analysis of the same and hence its dismissed herein. e. That an order that this suit does not oend “ the Doctrine of Res Judicata” to the Judgement and Decree in the High Court of Kenya - Mbsa, HC Pet No. 102 of 1999” delivered on 9 th March, 2001” - contrary to the provision of Section 7 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya and further the same cannot be raised in the absence of a Defence and is therefore not properly before this Court. f. That for expedience sake, there be a Pre – Trial conference on 11th March, 2026 pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There be a hearing on 23rd July, 2025 preferably through Physical means. g. That in the meantime, the two Law rms of Messrs. Munyao, Muthama & Kashindi Advocates and that of Messrs. MKJ Advocates granted 7 days to have fully regularized on the issue of representation of the 1st, 2nd, 3rd and 4th Defendants herein pursuant to the provisions of Order 9 Rules 5 & 6 of the Civil Procedure Rules, 2010. h. That in default to adhere with the Pre – Condition made out under Order (g) above, the legal consequences to ensue accordingly https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 35

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i. That the cost of the Notice of Motion applications dated 29th October, 2024 and 9th October, 2025 shall be in the cause. It is so ordered accordingly RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT KWALE THIS 11TH DAY OF DECEMBER 2025. …………………………………. HON. MR. JUSTICE L. L. NAIKUNI ENVIROMNENT AND LAND COURT AT KWALE Ruling delivered in the presence of: Mr. Daniel Disii, the Court Assistant. Mr. Litoro Advocate for the Plainti/Applicant. Mr. Wasieba Advocate for the 1st, 2nd, 3rd & 4th Defendants. Mr Mackowade Advocate for the 5th, 6th & 7th Defendants. Mr. Ken Atuti Advocate for the 11th Defendant. No appearance for the 6th, 7th 8th, 9th, 10th, 12th & 13th Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18639/eng@2025-12-11 36

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