Jefwa & another v Chief Land Registrar & 4 others (Environment and Land Case E075 of 2025) [2026] KEELC 2780 (KLR)

developing, building, occupying, alienating, dealing, and/or in any other manner interfering with the 1st Plaintifi's plot number Kilifi/Jimba/343 pending the hearing and determination of this suit. c. The oficer commanding the Watamu Police Station or any other nearby station shall assist in efiecting the Court Orders. d. Costs of the Application. 2. The Application is supported by two Afidavits of the 2nd Plaintifi, Safari Kazungu Toya, sworn on 30th June, 2025, and 18th October, 2025, respectively. 3. The 4th Defendant, Sophia Abdillahi Chacha, a shareholder and Director of Denman Properties Limited, the 3d Defendant herein, and duly authorized to swear this afidavit, swore a replying afidavit in opposition to the Application dated September 30, 2025. 4. The Court directed the parties to file written submissions. I acknowledge the applicant's submissions but did not receive submissions from the respondents. 5. Based on the materials and submissions on record, the issues I frame for the resolution of this Court are whether to issue a temporary injunction pending the determination of the current suit and who should bear costs. 6. The applicant submits that she is the lawfully recognized owner of plot number Kilifi/Jimba Settlement Scheme/343. She was allocated that plot during the land adjudication and settlement carried out within the area. She was in occupation and has remained in occupation throughout this time. 7. The Plaintifis contend that the Defendants have annexed documents relating to prior litigation. There was a dispute over a Task Force report on Kilifi Jimba and Chembe Kibabamshe, dated June 2010. The Plaintifis do not base their claim on that report. The Court's nullification of that report does not, in any way, mitigate the Plaintifis' claim. Even if the Court declared the 3rd and 4th Defendants owners of the suit property, there has never been a dispute in Court between the Plaintifis and the Defendants. 8. Plaintifis assert that the most important issue for determination is how the 3rd and 4th Defendants acquired the suit property. The Land Registration Act provides for the process of land adjudication and settlement. Section 6 of the Act provides for registration units, which may be divided into registration sections or blocks. The Land Acts provide for the establishment of settlement schemes under Section 134. Settlement Schemes are distinct from the land adjudication process under the Land Adjudication Act. Once a settlement scheme is established, the land belongs to the Land Settlement Fund Board of Trustees. It is this Board that allocates land to a beneficiary. This system existed even during the period when the Registered Land Act was in force. The Land Settlement Fund Board of Trustees allocates land to beneficiaries, who may be squatters. 9. It is averred that the Plaintifis were allocated the land by the Land Settlement Fund Board of Trustees. The suit land is not located in an adjudication area where one could have claimed that the land was adjudicated to him. The Land Settlement Fund Board of Trustees determines who to allocate the land to. The Kilifi Jimba Settlement Scheme falls under the Land Settlement Fund Board of Trustees. In a Settlement Scheme, all parcels of land are more or less similar in size, as opposed to adjudication, where one demarcates the area claimed as one's own. 10. Plaintifis proceeds to assert that the 3rd and 4th Defendants were not given the suit land by the Land Settlement Fund Board of Trustees. The person from whom they allegedly bought the land was also not given the suit land by the Board. The end result calls for the examination of the root of the Defendants' https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2780/eng@2026-04-29 2

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Titles. The Kilifi Land Registrar has no power to issue a Title Deed before the Board provides the Registrar with duly executed Discharge and Transfer forms. The question that arises is how those who allegedly sold the land to the 3rd and 4th Defendants obtained title to it. It is alleged that one Ali Mohamed Ali sold the land to the Defendants. The Replying Afidavit refers to the fact that the land in dispute was registered under the Registered Land Act. 11. It is submitted that even under the Registered Land Act, the Land Registrar had no power to issue an initial Title. The Registrar had to wait for the adjudication or settlement records from the Land Adjudication and Settlement Department and then open a new register for each parcel. 12. It is contended by the Plaintifis that it is not suficient for the Defendants to allege that they bought the land from a registered owner. This Honorable Court has a duty to examine how the alleged vendor obtained the land. Did the vendor purchase the land from an adjudicated/settled owner or from the original person given the land by the Board? The Plaintifis have annexed a letter of ofier, a Discharge of Charge, and a Transfer in a Settlement Scheme. No Sale Agreement between Ali Mohamed Ali and the 3rd & 4th Defendants has been annexed. There is no Oficial Search indicating that Ali Mohamed Ali owned the land before it was sold to the Defendants. The Defendants' List of Nine (9) Documents contains no Sale Agreement, Search, Discharge of Charge, Adjudication Records, or other relevant documents. 13. Plaintifis reiterates that the Kilifi Land Registrar had no power to issue a Title Deed to anyone other than the person indicated in a Transfer from the Land Settlement Fund Board of Trustees. All the Petitions referred to by the Defendants become irrelevant when it comes to the root of the Title. Even a Judgment in their favor does not protect the Defendants from the issue of the root of the Title. 14. The Plaintifis maintains that the Title issued to the 3rd and 4th Defendants is compromised by fraudulent activity. The specifics of the fraud have been pleaded; therefore, Section 26 of the Land Registration Act applies. Consequently, the relevant case law on the impeachment of a title is pertinent (see Iqbal Sing Rai v Mark Lecchini and Registrar of Titles (Civil Case No. 1054 of 2001), as cited in Westend Butchery Limited v Arthi Highway Developers Limited & 6 Others (2017) KLR, Nelson Kazungu Chai & 9 Others v Pwani University (2014) eKLR, Dina Management Limited v County Government of Mombasa & 5 Others (2023) KESC 30 KLR, and Samuel Kamere v Land Registrar, Kajiado, Nairobi Court Of Appeal, Civil Appeal No. 28 of 2005). 15. The Plaintifis asserts that Defendants cannot also claim to be innocent purchasers for value without notice. One requirement for qualifying as an innocent purchaser is that the seller must have had good title to pass to the purchaser. See Katende v Haridas And Company Ltd (2008) 2: E.A 173. 16. The Plaintifis submit that they have established a prima facie case with a probability of success. Their claim to the suit property is supported by the institution responsible for allocating land under a Settlement Scheme. Further, the Plaintifis are in possession of the suit land. They will sufier irreparable damage if evicted from the premises before the suit is heard and determined. The Defendants are constructing a perimeter wall around the Plaintifis' land. There is a threat of eviction. Photographs annexed to the Further Afidavit show demolished houses belonging to the Plaintifis. There is an imminent threat of eviction and subsequent loss of property. 17. The Defendants' claim that they conducted searches before buying the land cannot constitute a suficient background check. There is no discharge of the Settlement Fund Trustee Charge in favor of the said Ali Mohamed. Further, there is no record that, after adjudication and settlement were completed, Ali Mohamed was allocated the land. Also, there is no Sale Agreement between Ali Mohamed and any other purported original owner. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2780/eng@2026-04-29 3

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18. Plaintifis concludes that the interests of justice require that the Plaintifis be allowed to remain on the suit property pending the hearing and determination of the suit. 19. On the contrary, Sophia Abdillahi Chacha, on behalf of the 3rd and 4th Defendants, asserts that, in reply to paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20 of the Supporting Afidavit, she averred and afirmed that: The 3rd Defendant was incorporated as a limited liability company in Kenya on the 2nd day of June, 2005. The 3rd Defendant is the registered proprietor of Title Number Kilifi/Jimba/343. 20. On or about November 2006, the 3rd Defendant, as a bona fide purchaser for value without notice, after complying with all the conveyancing protocols, purchased the suit property from Ali Mohamed Ali for a consideration of Kenya Shillings Five Million Six Hundred Thousand (Kshs. 5, 600, 000.00). The suit property measures approximately 2.2 Ha. 21. The transfer was duly registered at the Kilifi District Registry, and a Certificate of Lease dated the 28th day of November, 2006, was issued to the 3rd Defendant. The 3rd Defendant conducted a search of the suit property both before and after purchasing it from Ali Mohamed Ali. Since the purchase of the suit property, the 3rd Defendant has been in physical, quiet, and uninterrupted enjoyment and possession of the suit property and has been meeting all requisite outgoings, namely, land rates payable to the defunct Municipal Council of Malindi and, now, to the County Government of Kilifi. Prior to the 3rd Defendant being registered as the proprietor of the suit property, the original title as held by the previous proprietor, Ali Mohamed Ali, and the transfer document as required by law were produced to the 2nd Defendant herein, the Land Registrar, Kilifi County. There was no caveat or caution when the 3rd Defendant bought the suit property, and the 3rd Defendant was a bona fide purchaser for value without notice of any defect in title. The 3rd Defendant bought the suit property in good faith. 22. That Properties within the Kilifi/Jimba Registration Section, including the suit property, were registered under the repealed Registered Land Act, Cap 300 of the Laws of Kenya, which legal regime still applies by virtue of the transitional provisions in Section 107 of the Land Registration Act, 2012, and Section 162 of the Land Act, 2012. Any holder of a title document to any parcel of land in the Sovereign Republic of Kenya is entitled to rely on the indefeasibility conferred by statute to protect their right to property. The 3rd Defendant has a good and indefeasible title to the suit property. 23. The 3rd and 4th Defendants contend that the recommendations of the Report of the Special Task Force on Kilifi Jimba and Chembe Kibabamshe, dated June 2010, did not have the force of law. By a Petition dated the 1st day of September, 2012, filed in Court on the 3rd day of September, 2012, and amended on the 24th day of November, 2014, pursuant to Articles 22, 23, and 165(3) of the Constitution of Kenya; Rules 4 and 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice & Procedure Rules, 2013; and the Orders of the 30th day of May, 2013; the 25th day of June, 2013; the 2nd day of July, 2013; and the 22nd day of September, 2014, the 3rd Defendant, Bond Street Properties Limited, Green Lily Limited, and Holborn Properties Limited sought various reliefs from this Court against the Hon. Attorney General, the Commissioner of Lands, the Chief Land Registrar, the District Land Registrar, the County Government of Kilifi, the Ministerial Task Force on Land Issues in Coast Province, and the Hon. Gideon M. Mung'aro (who were the Respondents), and the National Land Commission, which was the 23rd Interested Party, and other 35 Interested Parties. 24. That, pursuant to the order of the 4th day of September 2012, issued by the Meoli J. in Malindi HC Petition No. 11 of 2012, Denman Properties Limited, Bond Street Properties Limited, Green Lily Limited, and Holborn Properties Limited were granted leave to advertise the filing of Malindi HC Petition No. 11 of 2012 in the Daily Nation, the Standard, and the Star n. Ο. р. Newspapers on a https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2780/eng@2026-04-29 4

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weekday, on a prominent page of the papers, and in a significant size. The Petitioners in Malindi HC Petition No. 11 of 2012 litigated the Petition bona fide in respect of a public right and/or a private right claimed in common for themselves and other property owners in the Chembe Kibabamshe Land Registration Section and the Jimba Land Registration Section. 25. That pursuant to the order issued by Meoli J. on the 4th day of September 2012, the Daily Nation Newspaper, the Standard Newspaper, and the Star Newspaper published notice of the filing of Malindi HC Petition No. 11 of 2012 to the general public on the 12th day of September, 2012. As such, anyone who had an interest or claim in the suit properties in Malindi HC Petition No. 11 of 2012, among others, was duly notified and had an opportunity to be enjoined in Malindi HC Petition No. 11 of 2012 and to ventilate their grievance(s), if any. 26. The 3rd and 4th Defendants aver that the Plaintifis were among the persons who had an interest in one of the suit properties in Malindi HC Petition No. 11 of 2012. On the 8th day of May 2015, the Environment and Land Court at Malindi, in its judgment in Malindi HC Petition No. 11 of 2012, held as follows: 27. a. A declaration is hereby made that the issuance of Certificates of Leases based on the Report of the Task Force on Kilifi Jimba and Chembe Kibabamshe dated June 2010 and the letter from the Hon. Gideon Mung'aro dated the 20th day of August 2010 was in violation of Articles 3, 10, 27, 40, and 47 of the Constitution and Sections 10, 33, and 143 of the Registered Lands Act, Cap 300 of the Laws of Kenya (Repealed), and is therefore unconstitutional, null and void ab initio. b. A declaration is hereby made that the 1st Petitioner (read Denman Properties Limited) is the legal proprietor of the Parcels of Land known as Kilifi/Jimba/ 342, 335, 340, 341, 427, 338, 353, 333, 334, 311, 331, 337, 317, 336, 345, 328, 343 (suit property) and 344. c. A declaration is hereby made that the 2nd Petitioner is the legal proprietor of the Parcels of Land known as Kilifi/Jimba/315, 319, 316, 314, 346, and 312. d. A declaration is hereby made that the 3rd Petitioner is the legal proprietor of a Parcel of Land known as Kilifi/Jimba/323. e. A declaration is hereby made that the 4th Petitioner is the legal proprietor of the Parcels of Land known as Chembe/Kibabamshe/396, 637, 638, 401, 423, 425, 428, 394 and 379. f. An order of Certiorari is hereby issued to bring to this Honourable Court, for purposes of being quashed, the Leases and Certificates of Lease that were issued in respect of the above suit properties. g. An Order of Permanent Injunction is hereby issued to prohibit the Respondents, themselves, their servants, agents, or whomever they authorize on their behalf, from giving efiect to or implementing in any manner whatsoever the Report of the Task Force on Kilifi Jimba and Chembe Kibabamshe dated June 2010, or from interfering in any other manner with the Petitioners' possession and ownership of their respective suit properties. h. An order of mandamus is hereby issued compelling the 4th Respondent to restore the register with respect to the above-mentioned parcels of land and to issue Certificates of Search to the Petitioners upon payment of the requisite fees. The 3rd and 4th Defendants aver that no appeal or review was filed against the judgment in Malindi HC Petition No. 11 of 2012, entered on the 8th day of May 2015, and the decree extracted on the 13th day of May 2015. In a Notice of Motion application dated the 26th day of June 2015 in Malindi HC https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2780/eng@2026-04-29 5

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Petition No. 11 of 2012, in which Mr. Felix Nyakundi, the then Land Registrar, Kilifi, was cited for Contempt of Court, Mr. Nyakundi complied with the Court orders and restored the 3rd Defendant, Bond Street Properties Limited, Green Lily Limited, and Holborn Properties Limited as the registered owners of their respective properties. 28. The 3rd and 4th Defendants state that the decree in Malindi HC Petition No. 11 of 2012 was duly executed. The registers for the suit properties were restored, and Certificates of Search were provided to the 3rd Defendant, Bond Street Properties Limited, Green Lily Limited, and Holborn Properties Limited. 29. The 3rd and 4th defendants assert that the National Land Commission, herein through its then Chairman, Prof. Muhammad A. Swazuri, was always aware of the pendency and subsequent judgment in Malindi HC Petition No. 11 of 2012. The National Land Commission caused to be published a Kenya Gazette Notice No. 1549, contained in the Special Issue Vol. CXXI - No. 21, dated the 15th day of February, 2019, at pages 537 - 568, on the Determination of Investigations on Grants and Dispositions on Public Land in Respect of Kilifi Jimba. By Malindi E & LC Judicial Review Application No. 1 of 2019, on the 11th day of March, 2019, Olola J. in Malindi E & LC Judicial Review Application No. 1 of 2019 issued stay orders on the enforcement or execution of the 4th defendant's determinations on the 3rd defendant's Plot Nos. 342, 335, 340, 341, 427, 338, 353, 333, 334, 311, 331, 337, 317, 336, 345, 328, 343 (suit property) and 344, situate in Kilifi/Jimba; Bond Street Properties Limited's Plot Nos. 315, 319, 316, 314, 346, and 312, situate in Kilifi/Jimba; and Green Lily Limited's Plot No. 323, situate in Kilifi/Jimba. 30. That on the 17th day of June, 2020, the Environment and Land Court at Malindi, in its judgment in Malindi E & LC Judicial Review Application No. 1 of 2019, held as follows: a. An order of certiorari is hereby issued to bring to this Honorable Court for purposes of quashing the 1st Respondent's determinations on the ex parte Applicant's Plot Nos. 342, 335, 340, 341, 427, 338, 353, 333, 334, 311, 331, 337, 317, 336, 345, 328, 343 (suit property) and 344, situate in Kilifi/Jimba, which appear at pages 559, 558, 567, 560, 556 of the Gazette Notice No. 1549, contained in the Special Issue Vol. CXXI - No. 21, and dated the 15th day of February, 2019, at pages 537 - 568, on the Determination of Investigations on Grants and Dispositions on Public Land in Respect of Kilifi Jimba (hereinafter referred to as “the Gazette Notice"). b. An order of certiorari is hereby issued to bring to this Honorable Court for purposes of being quashed the 1st Respondent's determinations on the 2d ex parte Applicant's Plot Nos. 315, 319, 316, 314, 346, and 312, situate in Kilifi/Jimba, which appear at pages 556, 557, and 559 of the Gazette Notice. An order of certiorari is hereby issued to bring to this Honorable Court for purposes of being quashed the 1st Respondent's determination on the 3rd ex parte Applicant's Plot No. 323, situate in Kilifi/Jimba, which appears at page 557 of the Gazette Notice. c. An order of prohibition is hereby issued to prohibit and restrain the 3rd and 4th Respondents, themselves, their servants, agents, or whomever they authorize on their behalf, from giving efiect to or implementing in any manner whatsoever the 1st Respondent's determinations regarding the 1st ex parte Applicant's Plot Nos. 342, 335, 340, 341, 427, 338, 353, 333, 334, 311, 331, 337, 317, 336, 345, 328, 343 (suit property) and 344, situate in Kilifi/Jimba, which appear at pages 559, 558, 567, 560, 556 of the Gazette Notice. d. An order of prohibition is hereby issued to prohibit and restrain the 3rd and 4th Respondents, themselves, their servants, agents, or whomever they authorize on their behalf, from giving efiect to or implementing in any manner whatsoever the 1st Respondent's determinations https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2780/eng@2026-04-29 6

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regarding the 2nd ex parte Applicant's Plot Nos. 315, 319, 316, 314, 346, and 312, situated in Kilifi/Jimba, which appear at pages 556, 557, and 559 of the Gazette Notice. e. An order of prohibition is hereby issued to prohibit and restrain the 3rd and 4th Respondents, themselves, their servants, agents, or whomever they authorize on their behalf, from giving efiect to or implementing in any manner whatsoever the 1st Respondent's determination regarding the 3rd ex parte Applicant's Plot No. 323, situated in Kilifi/Jimba, which appears at page 557 of the Gazette Notice. f. An order of mandamus is hereby issued compelling the 1st Respondent to clear the 1st ex parte Applicant's Plot Nos. 342, 335, 340, 341, 427, 338, 353, 333, 334, 311, 331, 337, 317, 336, 345, 328, 343 (suit property) and 344, situate in Kilifi/Jimba; the 2nd ex parte Applicant's Plot Nos. 315, 319, 316, 314, 346, and 312, situate in Kilifi/Jimba; and the 3rd ex parte Applicant's Plot No. 323, situate in Kilifi/Jimba. g. Costs of the suit to be borne by the 1st Respondent. 31. The 3rd and 4th Defendants assert that no appeal or review was filed against the judgment in Malindi E & LC Judicial Review Application No. 1 of 2019, entered on the 17th day of June, 2020, and the decree extracted therefrom. 32. That, in further reply to Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20 of the Supporting Afidavit, the 3rd and 4th Defendants assert that the 2nd Plaintifi has no authority from the 1st Plaintifi, as provided for in Order 1 Rule 13 of the Civil Procedure Rules, to maintain this suit. 33. Further, the land title documents are issued by the Government of Kenya. The Government of Kenya guarantees title to land. The regime of law governing the suit property is the Registered Lands Act (RLA), Cap 300 of the Laws of Kenya (now repealed), which continues to apply by virtue of the transitional provisions in Section 107 of the Land Registration Act of 2012 and Section 162 of the Land Act, 2012. Section 27 of the said Repealed Act provided that registration of a person as proprietor of land vested in that person absolute ownership of that land, together with all rights and privileges appurtenant thereto, and that Section 28 of the said Repealed Act provided that the rights of a proprietor acquired on first registration, subsequent registration for valuable consideration, or by an order of the Court could not be defeated except as provided for under the said Repealed Act. The 3rd Defendant, as was provided for in Section 39 of the said Repealed Act, was under no obligation in law to go behind the Title of the suit property and to enquire how Ali Mohamed Ali was registered as the proprietor thereof, or to search any register kept under the Land Registration (Special Areas) Act, Cap 283 of the Laws of Kenya (Repealed), the Government Lands Act, Cap 280 of the Laws of Kenya (Repealed), the Land Titles Act, Cap 282 of the Laws of Kenya (Repealed), or the Registration of Titles Act, Cap 281 of the Laws of Kenya (Repealed). 34. An interest in land cannot be allotted, alienated, or transferred when the specific parcel of land allotted is not in existence. Allotment of an interest in land is a transaction in rem attaching to and running with a specific parcel of land. The Government, through the 5th Defendant, vide a letter of ofier dated the 27th day of February, 2024, illegally and without any legal authority or justifiable cause, allocated the suit property to the 1st Plaintifi. The 5th Defendant had no authority to allocate the same plot without following the laid-down procedures for reallocation. The allotment in favor of the 1st Plaintifi was irregular, null, and void. The suit property, having been privately owned at all material times, was neither government land nor available for allocation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2780/eng@2026-04-29 7

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35. That its purported allocation by the 5th Defendant to the Settlement Fund Trustees was illegal and void ab initio. The Settlement Fund Trustees have no legal or proprietary rights in the suit property that can be passed to the 1st Plaintifi. The protection of the right to property does not extend to property that has been found to have been unlawfully acquired. The principle of finality of court decisions is underscored by the conclusive evidential character of decisions determining any legal character or entitlement of a person, which is statutorily underpinned under Section 44 of the Evidence Act, Cap 80 of the Laws of Kenya. It is trite law that a judge cannot sit on an appeal of an order issued by a court of concurrent jurisdiction. 36. The 3rd and 4th defendants conclude that, in the circumstances and based on the foregoing reasons, the Orders sought in the Application, supported by the Supporting Afidavit annexed thereto, ought, in the interests of justice and fairness, to be refused and the Application dismissed with costs. 37. For an interlocutory injunction to issue, Order 40 Rule (1) of the Civil Procedure Rules states as follows: “ Where in any suit it is proved by afidavit or otherwise— 38. (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 afiording reasonable probability that the plaintifi 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 fit until the disposal of the suit or until further orders.” The principles for the issuance of interlocutory injunctions were articulated in the well-known case of Giella v Cassman Brown & Company Limited [1973] EA 358, reiterated in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, where the Court of Appeal held that: “ In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; (a) establishes his case only at a prima facie level, (b) demonstrates irreparable injury if a temporary injunction is not granted, and (c) allay any doubts as to b, by showing that the balance of convenience is in his favour. 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 steps are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2780/eng@2026-04-29 8

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39. A prima facie case is defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, where the Court of Appeal held as follows: “ The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are, first, an applicant must show prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise sufier irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience...A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true that the Court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is ofiered by the defence...The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case. It would be in the appellant’s interest to adopt a genuine and arguable case standard rather than one of a prima facie case, the former being the lesser standard of the two...In civil cases a prima facie case is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not suficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.” 40. The central issue concerns the land parcel No. Kilifi/Jimba/343. The Plaintifis assert title, ownership, and possession through an SFT program, whereas the 3rd and 4th Defendants assert title, ownership, and possession through purchase and subsequent legal actions. 41. According to the parties' averments, each party claims to be in actual possession. The Court could not clearly ascertain who is currently in possession, given the manner in which the suit property was acquired and the litigation history concerning it. 42. The Court could also not establish the status quo on the ground. 43. In view of the confiicting averments from the parties, the issue is narrowed to the root of the titles each party holds, which can only be resolved at the hearing. 44. Consequently, the application dated June 30, 2025, fails and is hereby dismissed, with costs in the cause. DATED, SIGNED, AND ELECTRONICALLY DELIVERED IN NYERI ON THIS 29TH DAY OF APRIL, 2026. E. K. MAKORI JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2780/eng@2026-04-29 9

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Dr. Chitembwe for the Plaintifis Kendi: Court Assistant In the absence of: Mr. Binyenya for the 3rd and 4th Defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2780/eng@2026-04-29 10

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