Pauma Investment Company Limited v Salim Hassan Mwagoyo & Another

2. The second application is the one dated 26 th May, 2025 filed by Pauma Investment Company Limited, the Plaintiff herein, through the Law firm of Fiona Khalayi Law Advocates. It is premised under the provision of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and Order 40 Rules 1, 2 and 4 and Order 51 Rule 1 of the Civil Procedure Rules, 2010. For good order, the Honorable Court shall be dealing with these applications simultaneously but in distinct way accordingly. II. The Notice of Motion Application dated 16th July, 2026 3. The 1st Defendants herein sought for the following orders:a) The entire suit herein be struck out. b) Spent. c) The Plaintiff pays the costs of this application and the entire suit. 4. The Application was premised under the grounds, testimonial facts and the averments made out under the twelve (12) Paragraphed annexed Supporting Affidavit of SALIM HASSAN MWAGOYO, the 1st Defendant herein who averred as follows that: ELCLC E045 of 2025 HON. JUSTICE L.L NAIKUINI Page 2 of 81

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a) He was the 1st Defendant herein, a male adult of sound mind and the lawful heir to the estate of the late Hassan Juma Mwagoyo, the original registered proprietor of land parcel Kwale/Diani/SS/144, (Hereinafter referred to as “The Suit Property”) hence competent and duly authorized to swear this affidavit. b) The said parcel of land Kwale/Diani/SS/144 was registered in the name of his late father, Hassan Juma Mwagoyo, from the year 2002 until his death in December, 2010 when it was later registered into the Applicant’s name. Annexed hereto and a copy of the said Certificate of Title marked as “SHМ 1”. c) Sometime in early 2010, his father noticed illegal sub divisions of the said land and immediately lodged Judicial Review proceedings under “the Mombasa High Court JR No. 68B of 2010. d) The Honourable Court issued orders of Certiorari quashing the Registry Index Map dated 1 st March, 2010 and directed that the land reverts to parcel Kwale/Diani/SS/144 in the ELCLC E045 of 2025 HON. JUSTICE L.L NAIKUINI Page 3 of 81

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name of his late father. Annexed hereto and marked as “SHM – 2” was a copy of the said Ruling. e) The Judgment in JR No. 68B of 2010 also prohibited the registration, recognition, or dealing in any of the illegally created sub - divisions namely Kwale/Diani/SS/2147 to 2166. f) The title of his father was never challenged in any court during his lifetime, and the Applicant had lawfully inherited the said parcel and remained in possession thereof for over 30 years. g) The Plaintiff's claim was based on titles resulting from the very sub - divisions that were quashed by a court of competent jurisdiction. h) The Plaintiff was not in possession of the land, nor had it ever challenged the ownership of the Applicant’s late father during his lifetime. i) The Applicant was advised by his Advocates on record, of which advice he verily believed to be true, that the Plaintiff's claim was time - barred under the provision of Section 7 of the Limitation of Actions Act, Cap. 22. ELCLC E045 of 2025 HON. JUSTICE L.L NAIKUINI Page 4 of 81

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j) The Plaintiff lacked locus standi and any valid interest in law, and its continued prosecution of this suit amounted to an abuse of the court process. k) He urged this Honourable Court to strike out the suit in its entirety and discharge the interim orders issued on 27 th May, 2025. l) What was deponed to hereinabove was true to the best of his knowledge, information and belief. III. The responses by the Plaintiff/Respondent to the application dated 16th July, 2025 5. The Plaintiff opposed the application by the 1 st Defendant dated 16th July, 2025 through a 31 Paragraphed Supporting Affidavit sworn by PAULINE NJERI MATU sworn on even date. She averred as follows that:a) She was an adult female of sound mind, the Plaintiff/Applicant herein, and therefore competent to swear this affidavit. b) She was the Director of the Plaintiff/Applicant duly authorized to represent the Company, well versed with the suit and thus competent to swear this Affidavit. ELCLC E045 of 2025 HON. JUSTICE L.L NAIKUINI Page 5 of 81

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c) She had read application and the supporting Affidavit sworn by Salim Hassan Mwangoyo on behalf of the 1 st Defendant. d) The Application was frivolous, vexatious and a blatant abuse of the due process of the Court. It was all intended to defeat the Plaintiff’s proprietary interest and right as enshrined under Article 40 of the Constitution of Kenya, 2010. e) The Plaintiff was never a party to the suit - Mombasa High Court Judicial review No. 68B of 2010 nor were they ever been served with the pleadings. f) The Plaintiff/Applicant was the lawful and absolute registered owner to the suit land having bought it from John Mwangi Mbua for valuable consideration in the year 2009 before the Judicial Review proceedings. g) The Plaintiff had been in peaceful and uninterrupted possession of the suit property, exercising all rights of ownership thereon until Defendant/Respondent October, trespassed 2023 on when the the land 1st and destroyed the beacons. ELCLC E045 of 2025 HON. JUSTICE L.L NAIKUINI Page 6 of 81

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h) The Plaintiff was a necessary and affected party to the Judicial Review by the Applicant failed to serve them. Hence the orders they sought were irregular and unenforceable. i) The Plaintiff only became aware of the existence of the Ruling over 14 years later on when the 1 st Defendant served their Advocate with it in this application. j) Upon discovery of the said order, the Plaintiff promptly filed an application for joinder of parties and review of the said decision in the Mombasa Judicial Review case No. 68B of 2010 seeking to be granted orders to re – open the case and have it heard on its own merit whatsoever. k) Based on the facts herein, the 1st Defendant had been misleading Court when it alleged that the Plaintiff was never in possession of the land. The fact was that the Plaintiff had always been in actual possession. l) The Plaintiff had never been served with the pleadings. m) It would be noted that despite of the orders from the Judicial Review having been obtained in the year 2014, it was only served 11 years thereafter. Such a prolonged delay was never explained and hence was an abuse of Court. ELCLC E045 of 2025 HON. JUSTICE L.L NAIKUINI Page 7 of 81

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n) The attempt to enforce it to an innocent purchaser of land for value over a decade thereafter was oppressive, unjust and contrary to the equitable principles. o) The 1st Defendant had previously filed a suit seeking and claiming the suit land by way of land Adverse possession but it was dismissed in December, 2024 by this Honorable Court (Justice Lady Dena). p) The Plaintiff had a valid and indefeasible Certificate of Title to the suit land. It had never been challenged. q) The Plaintiff lodged a Caution against the suit land and it was registered and marked as “PNM - 3’’ was a copy of the Official Search dated 20th August, 2025. r) The allegation brought by the 1 st Defendant to the effect that the suit was time barred was misconceived as the cause of action arose on April, 2025 when the 1st Defendant entered it. s) Thus, the claim over the land by the Plaintiff was within time. The question on the time limitation never arose at all. t) The Plaintiff had proper locus standi being the legal and registered owner to the suit property. ELCLC E045 of 2025 HON. JUSTICE L.L NAIKUINI Page 8 of 81

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u) The Suit was not an abuse of the due process but was one that sought for legitimate pursuit of the fundamental rights as enshrined under the provision of Article 40 of the Constitution of Kenya, 2010. v) Instead of striking out the suit, it should be heard on merit. w)The application was devoid of merit but one brought in bad faith to defeat the cause of justice whatsoever. x) What was deponed herein was true to the best of her knowledge, information, and belief. IV. The Notice of Motion Application dated 26th May, 2025 by the Plaintiff 6. The Plaintiff herein sought for the following orders:a) Spent. b) That the Honorable Court be pleased to issue an order of temporary injunction Defendant/Respondent restraining whether by himself, the 1st his agents, servants or other person acting on his behalf from entering, trespassing upon, subdividing, selling, transferring, leasing, charging, constructing on or in any way interfering with the Plaintiff/Applicant’s occupation and possession of all that ELCLC E045 of 2025 HON. JUSTICE L.L NAIKUINI Page 9 of 81

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parcel of land known as title number Kwale/Diani/144 subdivided into various plots known as Kwale/Diani/2147, Kwale/Diani/2148, Kwale/Diani/2149, Kwale/Diani/2150, Kwale/Diani/2151, Kwale/Diani/2152, Kwale/Diani/2153, Kwale/Diani/2154, Kwale/Diani/2155, Kwale/Diani/2156, Kwale/Diani/2157, Kwale/Diani/2158 Kwale/Diani/2159, Kwale/Diani/2160, Kwale/Diani/2161 Kwale/Diani/2162, Kwale/Diani/2163, Kwale/Diani/2164, Kwale/Diani/2165 Kwale/Diani/2166 pending the hearing and determination of this application inter parties. c) That the Honorable Court be pleased to issue an order of inhibition under Section 68 (1) of the Land Registration Act, 2012, inhibiting any dealings, including but not limited to subdivision, transfer or registration of any interest, with respect to the parcel of land known as Kwale/Diani/144, subdivided into various plots known as Kwale/Diani/2147, Kwale/Diani/2148, Kwale/Diani/2149, Kwale/Diani/2150, Kwale/Diani/2151, Kwale/Diani/2152, Kwale/Diani/2153, Kwale/Diani/2154, Kwale/Diani/2155, Kwale/Diani/2156, Kwale/Diani/2157, Kwale/Diani/2158 Kwale/Diani/2159, Kwale/Diani/2160, Kwale/Diani/2161 Kwale/Diani/2162,Kwale/Diani/2163, Kwale/Diani/2164, ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 10 of

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Kwale/Diani/2165 Kwale/Diani/2166 pending the hearing and determination of this suit. d) That this Honourable Court be pleased to make any other or further order as the justice of the case may demand. e) THAT the officer in charge of Diani Police Station be directed to ensure compliance with the court orders accordingly. f) THAT the costs of this Application be provided for. 7. The Application is premised on the grounds, the testimonial facts and the averments made in the eighteen (18) Paragraphed Supporting Affidavit of PAULINE NJERI MATU, who averred as follows that:a) She was an adult female of sound mind, the Plaintiff/Applicant herein, and therefore competent to swear this affidavit. b) She was the Director of the Plaintiff/Applicant duly authorized to represent the Company, well versed with the suit and thus competent to swear this Affidavit. c) The Plaintiff/Applicant is a limited liability company incorporated in the Republic of Kenya under the Companies Act, Cap. 486 of the Laws of Kenya on 1 st August, 2008. Annexed hereto and marked as “PNM - 1 a & b’’ were copies ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 11 of

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of the Certificate of Incorporation dated 1 st August, 2008 and CR 12 Search dated 23rd May, 2025 respectively). d) At the time of incorporation of the Plaintiff/Applicant company, the directorship and shareholding comprised two ( 2 ) individuals, namely James Nderitu Matu and the Applicant. James Nderitu Matu held sixty (60) shares, while she held forty (40) shares. Regrettably, James Nderitu Matu passed away in the year 2015. e) On or about 4th November, 2009, the Plaintiff/Applicant purchased the parcel of land known as title number Kwale/Diani/144, from one John Mwangi Mbua. Annexed hereto and marked as “PNM - 2’’ was a copy of the Agreement for Sale dated 4th November, 2009 together with evidence of payment of the purchase price. f) The transfer of the said parcel was duly registered in the name of the Plaintiff/Applicant on 13th November, 2009 at the Kwale District Land Registry, and the Company was issued with a title deed to that effect. Annexed hereto and marked as “PNM - 3’’ was a certified copy of the Green - card Search dated 29th November, 2023. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 12 of

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g) The Plaintiff/Applicant thereafter, sub divided the said parcel of land into twenty (20) individual plots, an entry to this effect having been made in the Land Registry’s Green Card on 25th February, 2010; the mother title was accordingly marked as “Closed” and distinct title deeds were issued for each of the twenty (20) plots in the name of the Plaintiff/Applicant. Annexed hereto and marked as “PNM - 4 a, b & c” were copies of the Mutation Forms, Title Deeds and official searches for the twenty ( 20 ) plots respectively. h) Since the said purchase, the Plaintiff/Applicant had been in peaceful and uninterrupted possession of the suit property, exercising all rights of ownership thereon until October, 2023 when the 1st Defendant/Respondent trespassed on the land and destroyed the beacons. Annexed hereto and marked as “PNM - 5’’ was a copy of the police O.B Number 58/18/10/23 in which we reported the malicious damage to property-the beacons at Diani Police Station. i) The 1st Defendant/Respondent was summoned by the Officer Commanding Station (OCS) at Diani Police Station and was expressly ELCLC E045 of 2025 81 cautioned against interfering HON. JUSTICE L.L NAIKUINI with the Page 13 of

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Plaintiff/Applicant’s quiet possession of the suit property. However, to date, the 1st Defendant/Respondent had willfully disregarded the said summons. j) Upon the demise of James Nderitu Matu, who was one of the directors and the holder of sixty (60) shares in the Plaintiff/Applicant company, the beneficiaries of his estate, the Applicant administration included, proceedings. commenced In probate relation to and the aforementioned twenty (20) plots, it was unanimously agreed among the beneficiaries that each would receive one (1) plot, and that the remaining five (5) plots would be disposed of by way of sale, with the proceeds therefrom to be distributed equally among all the beneficiaries. Annexed hereto and marked as “PNM - 6” was a copy of the Certificate of Confirmation of Grant dated 27 th February, 2017. k) Recently, I discovered that the 1st Defendant/Respondent had obtained a new title over the suit property dated 11 th April, 2025. Annexed hereto and marked as “PNM - 7’’ was a copy of the first page of the said title. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 14 of

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l) Further investigations revealed that the 1st Defendant/Respondent had initiated an application for the sub - division of the suit property, which posed a significant risk of alienation and potential transfer to third parties, thereby undermining the 1st Plaintiff/Applicant proprietary rights and interests. m) The actions of the 1 st Defendant/Respondent was unlawful and calculated to dispossess the Plaintiff/Applicant of its rightful ownership of the suit property. n) Unless the 1st Defendant/Respondent was restrained by this Honourable Court, the Plaintiff/Applicant stood to suffer irreparable harm that could not be adequately compensated by damages, as the sub - division and potential transfer of the suit property would permanently deprive the Plaintiff/Applicant of its proprietary rights. o) As advised by the Plaintiff/Applicant`s Advocates on record, which advise she verily believe to be true, there was an urgent need to preserve the status quo pending the hearing and determination ELCLC E045 of 2025 81 of the suit to HON. JUSTICE L.L NAIKUINI prevent the Page 15 of

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Plaintiff/Applicant`s claim and interest in the suit property from being rendered nugatory. p) It was in the interest of justice that this application be heard on a priority basis to prevent further infringement of the Plaintiff/Applicant`s rights and uphold the integrity of the judicial process. q) She swore this Affidavit in support of the application filed herewith. r) What was deponed herein was true to the best of her knowledge, information and belief. V. The Grounds of Opposition filed by the 1st Defendant 8. While in opposition to the Notice of Motion application dated 26th May, 2025, the 1st Defendant filed Grounds of Opposition dated 10th November, 2025. They raided the following grounds:ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 16 of

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a) The application dated 16th July, 2025 lacks merit and it is an abuse of the Honourable Court Judicial time. b) The Applicant in her application had yet demonstrated how and why the Court should exercise Judicial discretion in her favour. c) The application seeks to invoke Judicial discretion in its favour without taking into consideration the fact that the Honourable Court on its own motion made orders to dismiss the matter. VI. The Submissions 9. On 16th October, 2025, while all the parties were present in Court they were directed to dispose off the two ( 2 ) applications by way of written submissions. 10. Pursuant to that, all parties fully complied. Subsequently, the Honourable Court reserved to deliver its Ruling on notice. Eventually it was delivered on 29 th September, 2026 accordingly. A. Written Submissions by the Plaintiff/Respondent on application dated 16th July, 2025 ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 17 of

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11. On 13th October, 2025, the Learned Counsel for the Plaintiff/Respondent through the Law Firm of Messrs. Fiona Khalayi Law Advocates filed written submissions dated on even date. It was in opposition to the 1 st Defendant/Applicant's Notice of Motion Application dated 16 th July, 2025. M/s. Khalayi Advocate commenced her submissions by stating that the Application sought, inter alia, to strike out the suit instituted by the Plaintiff/Respondent and discharge the interim orders issued by this Honourable Court on 27th May, 2025. Primarily, according to the Counsel, this was on the grounds that the suit was allegedly barred by limitation of time and that previous proceedings in the civil case of “Mombasa High Court Judicial Review No. 68B of 2010” had conclusively determined the issues in dispute. 12. Further, the Learned Counsel submitted that the application was frivolous, misconceived and amounted to an abuse of the due process of the Court. The Counsel argued that the application was founded upon proceedings in the Civil case of ”Mombasa High Court Judicial Review No. 68B of 2010” , proceedings to which the Plaintiff/Respondent was neither a ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 18 of

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party nor served. It was contended that despite the Plaintiff/Respondent being the registered proprietor of the suit land - all that parcel of land known as Land Parcel Title Number Kwale/Diani/SS/144, the Applicant failed to enjoin or serve it in those proceedings, thereby rendering any resultant orders incapable of binding the Plaintiff/Respondent. 13. To buttress this submission, the Learned Counsel relied on the case of: “Onyango Oloo – Versus – Attorney General [1986– 1989] EA 456”, where the Court held that:"A decision reached in violation of the rules of natural justice and the right to be heard is null and void." 14. The Learned Counsel argued that the failure to accord the Plaintiff/Respondent an opportunity to be heard offended the principles of natural justice and the constitutional right to a fair hearing guaranteed under the provision of Article 50(1) of the Constitution of Kenya, 2010. 15. The Learned Counsel further submitted that the Plaintiff/Respondent had already moved the High Court at Mombasa through an application seeking joinder and review of the proceedings in the Civil Case “ Judicial Review No. 68B of ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 19 of

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2010” with a view of having the matter heard on its merits. According to Counsel, the said application, annexed as “PNM – 1”, demonstrated that the Plaintiff/Respondent had acted diligently and in good faith to safeguard its proprietary rights. Therefore, the Learned Counsel argued that the present application was merely an attempt by the Applicant to rely on irregular and long dormant proceedings to defeat the Plaintiff/Respondent's registered ownership of the suit property. 16. On the issue of limitation of time. The Learned Counsel submitted that the Applicant had erroneously invoked the provisions of Section 7 of the Limitation of Actions Act, Cap. 22 Laws of Kenya in contending that the suit was statutebarred. To this front, the Learned Counsel maintained that the Plaintiff/Respondent's cause of action did not arise in the year 2010 as alleged by the Applicant but rather in April, 2025, when the Applicant unlawfully entered upon the suit property and purported to obtain a fresh title over the same property. 17. According to the Learned Counsel, time for purposes of limitation begins to run from the date when the cause of ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 20 of

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action accrues and not from the occurrence of unrelated historical events. In support of this legal proposition, the Learned Counsel relied on the Court of Appeal decision in the case of:- “Bosire Ongero – Versus – Royal Media Services [2015] eKLR”, wherein the Court held that:"A cause of action arises the moment a wrong is committed and not before." 18. The Learned Counsel therefore submitted that since the alleged infringement occurred in April, 2025 and the present suit was filed immediately thereafter, the suit was properly before the Court and could not be said to be time-barred. 19. On the issue of locus standi and ownership of the suit property. The Learned Counsel asserted that the Plaintiff/Respondent was the registered proprietor of the suit land - Title Number Kwale/Diani/SS/144. The Learned Counsel argued that by virtue of the provisions of Section 26 (1) of the Land Registration Act, No. 3 of 2012, a Certificate of Title constituted prima facie evidence that the person named therein was the registered, absolute and indefeasible owner of the land unless it was shown that the title was acquired ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 21 of

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through fraud, misrepresentation or illegality attributable to the registered proprietor. 20. To reinforce this submission, the Learned Counsel relied on the Court of Appeal decision in the case of:- “ Arthi Highway Developers Limited – Versus – West End Butchery Limited & 6 Others [2015] eKLR”, where the Court affirmed that the sanctity of title could only be impeached where fraud or illegality on the part of the registered proprietor had been established. Applicant The had Learned neither misrepresentation or Counsel pleaded illegality submitted nor proved attributable that the any fraud, to the Plaintiff/Respondent and consequently its title remained valid, lawful and enforceable. 21. The Learned Counsel further submitted that the Plaintiff/Respondent had lodged a caution over the suit property to preserve its proprietary interest pending the hearing and determination of the suit. The said caution was exhibited as Annexure marked as “PNM – 2”. The Learned Counsel argued that the Plaintiff/Respondent had therefore ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 22 of

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taken all reasonable and lawful measures to safeguard the suit property. 22. Further, the Learned Counsel averred that the Applicant had previously instituted a civil suit “Kwale ELC No. 001 of 2023” seeking a claim of land adverse possession over the same property. The Counsel informed the Court that the said claim was heard and dismissed by this Court - Hon. Lady Justice A. E. Dena in a Judgment delivered on 9th December, 2024, a copy of which was annexed as “PNM – 3” therein. It was argued that the Applicant was therefore attempting to relitigate issues that had already been conclusively determined by a court of competent jurisdiction. 23. In support of this submission, the Learned Counsel relied on the provisions of Section 7 of the Civil Procedure Act, Cap. 21 Laws of Kenya, which embodies “the Doctrine of Res Judicata”, and submitted that the Applicant was barred from re opening matters that had been directly and substantially in issue between the parties in previous proceedings. 24. To further fortify this argument, the Learned Counsel cited the case of:- “Muchanga Investments Limited – Versus – Safaris ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 23 of

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Unlimited (Africa) Limited & 2 Others [2009] eKLR”, where the Court of Appeal held that multiplicity of suits involving the same subject matter amounts to an abuse of the court process. Thus, the Learned Counsel urged the Court to find that the Applicant's conduct constituted a blatant abuse of the judicial process. 25. On the issue of the interim orders issued by this Honourable Court on 27th May, 2025, the Learned Counsel submitted that the said orders were intended to preserve the suit property pending the hearing and determination of the main suit. The Counsel argued that the Applicant had failed to establish any sufficient grounds to warrant the discharge or setting aside of those orders. 26. The Learned Counsel submitted that the applicable principles governing the grant and maintenance of interlocutory injunctions were well settled in the celebrated case of “ Giella – Versus – Cassman Brown & Company Limited [1973] EA 358”, namely:a. That the Applicant must establish a prima facie case with a probability of success; ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 24 of

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b. That the Applicant stands to suffer irreparable loss incapable of being adequately compensated by an award of damages; and c. Where the Court is in doubt, the matter should be determined on a balance of convenience. 27. The Learned Counsel argued that the Plaintiff/Respondent had fully satisfied the above principles by demonstrating that it held a valid and indefeasible title to the suit property, that it stood to suffer irreparable loss through unlawful dispossession if the interim orders were discharged, and that the balance of convenience preservation of the suit overwhelmingly property pending favoured the final determination of the dispute. 28. In conclusion, the Learned Counsel urged this Honourable Court to find that the Notice of Motion Application dated 16 th July, 2025 was frivolous, misconceived and an abuse of the due process of the Court. Hence, the Learned Counsel prayed that the Application be dismissed with costs, that the interim orders issued on 27th May, 2025 be maintained pending the hearing and determination of the main suit, and that the ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 25 of

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Court grants such further orders as it may deem just and expedient in the circumstances. B. Written Submissions by the Plaintiff/Applicant in respect to the Notice of Motion Application dated 26th March, 2025 29. On 13th October, 2025, the Learned Counsel for the Plaintiff/Applicant through the Law Firm of Messrs. Fiona Khalayi Law Advocates filed written submissions of even date in support of the Notice of Motion Application dated 26 th May, 2025. Learned Counsel submitted that the Application was brought pursuant to the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 Laws of Kenya, Order 40 Rules 1, 2 and 4 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, seeking, inter alia, orders for a temporary injunction and an order of inhibition to restrain the 1 st Defendant/Respondent, whether by himself, his agents, servants or assigns, from trespassing upon, sub - dividing, transferring, selling, leasing, charging, constructing upon or in any manner interfering with the Plaintiff/Applicant's ownership and quiet possession of Land Parcel Number Kwale/Diani/144 ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 26 of

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and its resultant sub - divisions pending the hearing and determination of the suit. 30. The Learned Counsel submitted that the Application was supported by the Supporting Affidavit sworn by Pauline Njeri Matu, a Director of the Plaintiff/Applicant, who deponed to the factual background of the dispute and annexed documentary evidence demonstrating the Plaintiff/Applicant's ownership of the suit property together with evidence of the unlawful acts committed by the 1st Defendant/Respondent. 31. The Learned Counsel averred that the Plaintiff/Applicant was the lawful and registered proprietor of Land Parcel Number Kwale/Diani/144, having purchased it from John Mwangi Mbua through a Sale Agreement dated 4 th November, 2009, following which the transfer was duly registered in its favour on 13th November, 2009. The Learned Counsel further submitted that on 25th February, 2010, the Plaintiff/Applicant lawfully sub - divided the suit property into twenty (20) separate parcels, each of which was registered and title deeds issued in its name. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 27 of

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32. The Learned Counsel further averred that the Plaintiff/Applicant remained in peaceful and uninterrupted possession of the suit property until October, 2023, when the 1st Defendant/Respondent unlawfully entered upon the land, destroyed the existing boundary beacons and subsequently procured a fresh title over the same property dated 11 th April, 2025. The Counsel contended that investigations undertaken by the Plaintiff/Applicant Defendant/Respondent subdividing the further had same revealed commenced land, the thereby the 1 st process of that exposing the Plaintiff/Applicant to the imminent risk of alienation and loss of its proprietary rights. 33. Therefore, the Learned Counsel argued that it was against the foregoing background that the Plaintiff/Applicant moved this Honourable Court seeking preservatory orders by way of a temporary injunction and an order of inhibition so as to preserve the suit property pending the hearing and determination of the suit. 34. On whether the Plaintiff/Applicant had satisfied the principles governing the grant of a temporary injunction. The Learned ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 28 of

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Counsel submitted that the applicable principles are well settled in the celebrated case of “ Giella – Versus – Cassman Brown (Supra). 35. The Learned Counsel further relied on the decision of the Environment and Land Court in the case of:- “ Rono – Versus – Bank of Africa & Another [2025] eKLR”, where the Court reiterated that the primary purpose of an interlocutory injunction is to preserve the subject matter of litigation pending the hearing and final determination of the dispute. 36. On the issue of whether the Plaintiff/Applicant had established a prima facie case with a probability of success, the Learned Counsel cited the case of: “Mrao Limited – Versus – First American Bank of Kenya Limited & 2 Others [2003] eKLR”, where the Court defined a prima facie case as:"A case 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 as to call for an explanation or rebuttal from the latter." 37. The Learned Counsel submitted that the Plaintiff/Applicant had exhibited overwhelming documentary evidence establishing its ownership of the suit property, including the ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 29 of

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Certificate of Incorporation and CR - 12 Form of the Plaintiff’s company, the Sale Agreement together with proof of payment, Certified Green Cards, Certificates of Title relating to the resultant subdivisions, Mutation Forms and Official Searches confirming registration in its name. 38. The Learned Counsel argued that, on the other hand, the title held by the 1st Defendant/Respondent dated 11th April, 2025, having been obtained long after the Plaintiff/Applicant had become the registered proprietor, was prima facie irregular and liable to challenge under the provisions of Section 26(1) of the Land Registration Act, No. 3 of 2012, which permits the Court to impeach a title obtained through fraud, misrepresentation or illegality. 39. Consequently, the Learned Counsel submitted that the Plaintiff/Applicant had demonstrated a credible and arguable case deserving the protection of this Honourable Court pending the hearing and determination of the suit. 40. On the issue of irreparable harm. The Learned Counsel averred that unless the orders sought were granted, the Plaintiff/Applicant stood to suffer irreparable loss arising from ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 30 of

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the continued interference by the 1st Defendant/Respondent, including further sub - division, transfer and possible disposal of the suit property to third parties, thereby permanently depriving the Plaintiff/Applicant of its proprietary interest. 41. To buttress this submission, the Learned Counsel relied on the decision in the case of:- “ Nduati & 2 Others – Versus – Chemutai & 3 Others [2025] eKLR”, where the Court held that irreparable injury refers to substantial harm which cannot adequately be remedied through an award of damages. 42. The Learned Counsel argued that once the suit property was transferred to innocent purchasers for value, restoration of the Plaintiff/Applicant's impossible, thereby proprietary rendering rights damages may an become inadequate remedy in the circumstances. 43. On the issue of the balance of convenience. The Learned Counsel entertain contended any that doubt, should the this Honourable balance of Court convenience overwhelmingly tilted in favour of the Plaintiff/Applicant, who remained the lawful registered proprietor and was in possession of the suit property. The Learned Counsel argued ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 31 of

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that granting the orders sought would preserve the prevailing status quo, prevent multiplicity of proceedings and safeguard the subject matter of the dispute pending final determination. 44. On the prayer seeking an order of inhibition. The Learned Counsel submitted that the Court derives jurisdiction under the provisions of Section 68(1) of the Land Registration Act, No. 3 of 2012, which empowers the Court to issue an order inhibiting the registration of any dealings with land pending the hearing and determination of any dispute concerning such land. 45. To reinforce this argument, the Learned Counsel cited the case of:- “Muhari – Versus – Gakure [2023] eKLR”, wherein the Court held that an inhibition order is intended to preserve the suit property and prevent registration of transactions capable of defeating the Applicant's claim before the Court. 46. The Learned Counsel opined that the actions of the 1 st Defendant/Respondent in obtaining a fresh title over the suit property and commencing sub - division thereof clearly demonstrated the existence of a real and imminent danger of alienation of the property, thereby warranting the issuance of ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 32 of

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an inhibition order to preserve the integrity of the land register pending determination of the suit. 47. On the exercise of the Court's discretion. The Learned Counsel submitted that the power to grant orders of injunction and inhibition was discretionary and ought to be exercised judiciously in furtherance of the Overriding Objective set out under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 namely, the just, expeditious, proportionate and affordable resolution of civil disputes. Counsel argued that the Plaintiff/Applicant had acted promptly upon discovering the unlawful actions of the 1 st Defendant/Respondent, had fully disclosed all material facts and had approached the Court with clean hands, thereby deserving the favourable exercise of the Court's discretion. 48. On the issue of costs. The Learned Counsel held that costs are governed by the provisions of Section 27 of the Civil Procedure Act, Cap. 21 Laws of Kenya, which vests discretion upon the Court while embodying the general principle that costs follow the event. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 33 of

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49. To support this proposition, the Learned Counsel relied on the decision of the Supreme Court in the case of:- “Jasbir Singh Rai & 3 Others – Versus – Tarlochan Singh Rai & 4 Others [2014] eKLR”, wherein the Court held that:"...the award of costs would normally be guided by the principle that costs follow the event, the effect being that the party who calls forth the event by instituting suit will bear the costs if the suit fails..." 50. The Learned Counsel therefore submitted that having demonstrated sufficient grounds warranting the grant of the orders sought, the Plaintiff/Applicant was entitled to the costs of the Application. 51. In conclusion, the Learned Counsel urged this Honourable Court to find that the Plaintiff/Applicant had fully satisfied the legal requirements for the grant of both a temporary injunction and an order of inhibition. Hence, the Learned Counsel prayed that this Honourable Court be pleased to grant a temporary injunction restraining the 1 st Defendant/Respondent, his servants, agents or assigns from entering upon, trespassing, subdividing, transferring, selling, leasing, charging, constructing upon or in any manner ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 34 of

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interfering with the suit land - Land Parcel Number Kwale/Diani/144 and all its resultant subdivisions pending the hearing and determination of the suit; issue an order of inhibition under Section 68(1) of the Land Registration Act restraining any dealings over the said parcels; direct the Officer Commanding Station (OCS), Diani Police Station, to supervise and ensure compliance with the Court's orders; award the costs of the Application to the Plaintiff/Applicant; and grant such further or other orders as the Court may deem just, fair and expedient in the circumstances. VII. Analysis and Determination 52. I have carefully read and considered the pleadings herein, the written submissions and the cited authorities made by the by the Learned Counsels, the relevant provisions from the Constitution of Kenya and statures. In order to arrive at an informed, fair and reasonable decision, the Honorable Court has framed the following five (5) for its determination. These are:- ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 35 of

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a) Whether the suit filed by the Plaintiff offends and/or breaches the Doctrine of Res Judicata by reason of the ruling in JR No. 68B of 2010; b) Whether the suit filed by the Plaintiff is statute-barred under the provision of Section 7 of the Limitation of Actions Act, Cap. 22; c) Whether the Plaintiff has locus standi and a triable cause of action such that the suit ought not to be struck out as frivolous, vexatious or an abuse of process; d) If the suit is not struck out, whether the Plaintiff has met the threshold for a temporary injunction and an order of inhibition pending the hearing and determination of the suit; and e) Who should bear the costs of the two applications ISSUE No. a). Whether the suit filed by the Plaintiff offends and/or breaches of the Doctrine of Res Judicata by reason of the ruling in JR No. 68B of 2010. 27. Under this sub – heading, the Honourable Court shall endeavor to ascertain whether this suit instituted by the Plaintiff should struck out for ostensibly having offended and/or breached “the Doctrine of Res judicata”. The striking out of the suits are governed under the provision of Order 2 ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 36 of

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Rule 15 of the Civil Procedure Rules, 2010. It does allow a party to apply for the striking out of a suit. It provides as follows: Striking out pleadings [Order 2 Rule 15.] (1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— (a) It discloses no reasonable cause of action or defence in law; or (b) It is scandalous, frivolous or vexatious; or (c) It may prejudice, embarrass or delay the fair trial of the action; or (d) It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be. 28. From the myriads of authorities, it is settled law that the power and Jurisdiction of the Court to strike out pleadings is discretionary. It must be exercised judicially and be used sparingly and cautiously. That is the case as it is exercised without the court being fully informed on the merits of the case through discovery and oral evidence. The leading and ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 37 of

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still very relevant case on this front was that of “D.T. Dobie & Company (Kenya) Limited – Versus - Muchina [1982] KLR 1”. Madan JA, stated: “No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.” 29. Further to that, in the case of: - “Co - operative Merchant Bank Limited – Versus - George Fredrick Wekesa (Civil Appeal No. 54 of 1999)” the Court of Appeal stated: “Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the appellant’s defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, embarrass or delay the expeditious ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 38 of

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disposal of the respondent’s action or which is otherwise an abuse of the process of the court.” 30. Additionally, in the case of: - “Yaya Towers Limited – Versus Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000)” the same court expressed itself thus: “A Plaintiff (Defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the Defendant (Plaintiff) can demonstrate Plaintiff’s claim shortly is bound and to conclusively that fail otherwise or is the objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial..........It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved.” 31. The main reason why the applicants have sought for this suit to be struck out is their claim that the suit is ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 39 of

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res judicata and sub judice. The Black’s law Dictionary 10th Edition defines “res judicata” as:“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…” 32. The doctrine of res judicata is codified 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 finally 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 ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 40 of

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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. 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 fide 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. 33. For a suit to be declared res-judicata, the following must be proved:(i) The former suit must have been decided. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 41 of

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(ii) The competence of a court which decides the former suit must be determined irrespective of any provision as to right of appeal. (iii) The former suit must have been alleged by one party and denied or admitted expressly or impliedly by the other party. (iv) Any matter which might and ought to have made a ground of defence or attack in the former suit shall be deemed to have been directly and substantially in issue in the former suit. (v) The parties litigating must be the same. 34. For res judicata to apply in a particular matter, there must have been a previous suit in which the matter was in issue; the parties in both matters must be the same or litigating under the same title; the previous matter must have been heard and determined by a competent court and the issue is raised once again in the new suit. See “John Florence Maritime Services Limited & another – Versus - Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR”. Res judicata operates as a complete estoppel against any suit that runs afoul of it. See “Maithene Malindi ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 42 of

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Enterprises Limited – Versus - Kaniki Karisa Kaniki & 2 others [2018] eKLR”. 35. Res judicata operates as a bar to subsequent proceedings involving same issue which had been finally and conclusively decided by a competent court in a prior suit between the same parties. In case of:- “John Florence Maritime Services Limited & another (Supra)” the Court of Appeal stated:“………. Res judicata is a subject which is not at all novel. It is a discourse on which a lot of judicial ink has been spilt and is now sufficiently settled. We therefore do not intend to re-invent any new wheel. We can however do no better than reproduce the re-indention of the doctrine many centuries ago as captured in the case of Henderson – Versus - Henderson [1843] 67 ER 313: “…..where a given matter becomes the subject of litigation in and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI forward, as Page 43 of

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part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time ….” …. Simply put res judicata is essentially a bar to subsequent proceedings involving same issue as had been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives.” 36. On The Supreme Court in the case of:- “Kenya Commercial Bank Limited – Versus - Muiri Coffee Estate Limited & Another [2016] eKLR” stated that:“The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 44 of

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serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.…Hence, whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a Court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa – Versus - James Nderitu Githae & 2 Others, (2010) eKLR, under five distinct heads: (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 ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 45 of

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jurisdiction; and (v) finality of the previous decision.” 37. Again in the case of “the Independent Electoral & Boundaries Commission – Versus - Maina Kiai & 5 Others [2017] eKLR”, the Supreme Court while still considering the issue of res judicata held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:“The suit or issue was directly and substantially in issue in the former suit. That former suit was between the same parties or parties under whom they or any of them claim. Those parties were litigating under the same title. The issue was heard and finally determined in the former suit. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 53. On the material before the Court, JR No. 68B of 2010 was a judicial review application by Hassan Juma Mwagoyo against the Kwale District Survey Department and the Attorney ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 46 of

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General, with the Land Registrar Kwale enjoined only as an interested party. The Plaintiff herein was neither named as a party nor served, and the proceedings went undefended and were determined ex parte. Privity is not established merely by reference to the same parcel of land; there must be an identifiable jural relationship such as succession in title before the events in question between the party bound and the party sought to be bound. On the record as it stands, the Plaintiff's registered proprietorship of the subdivided plots predates the delivery of the JR ruling, and there is no evidence yet tested at trial that the Plaintiff derives its title through Hassan Juma Mwagoyo or is otherwise in privity with him. 54. The Plaintiff's reliance on “Onyango Oloo – Versus - Attorney General [1986 & “1989] EA 456” for the proposition that a decision reached in violation of the right to a fair hearing is a nullity — is well taken as far as it goes: it underscores why an order obtained in proceedings to which an affected registered proprietor was neither joined nor served cannot, without more, be treated as automatically dispositive of that proprietor's independent rights. That said, the fact that the ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 47 of

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Plaintiff has itself moved the Mombasa High Court by way of an application for joinder and review of JR No. 68B of 2010 Annexure as “PNM – 1” rather than simply asserting the nullity of that ruling in these proceedings indicates that the Plaintiff itself recognises that the propriety, scope and continuing effect of the 2010 orders are properly a matter for resolution in those proceedings, or at trial of this suit with the benefit of a full record, and not for summary determination on this interlocutory application. This Court makes no finding on the merits of that pending application, save to note its existence as a further reason why the question is not ripe for summary disposal here. 55. Further, a decision obtained without affording an affected party an opportunity to be heard does not, as a matter of principle, operate to extinguish that party's independently registered proprietary rights without more. Whether the 2010 orders were, or were capable of being, enforced against the Plaintiff's subsequently or contemporaneously registered titles — and what effect, if any, they have on those titles — are matters that go to the merits of the suit and require ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 48 of

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evidence, including expert or registry evidence on the sequence of the various registrations, and cannot safely be resolved on affidavit at this interlocutory stage. 56. The Court notes, without making a final finding of fact, an apparent inconsistency on the record that itself illustrates why this issue is not suited to summary disposal: the certified registry documents exhibited by the Plaintiff (Green card searches) indicate that the original parcel Kwale/Diani/144 was registered in the name of one John Mwangi Mbua as at 24th May, 2006, from whom the Plaintiff claims to have purchased in the year 2009, whereas the 1st Defendant's affidavit asserts that his late father held the same parcel from the year 2002 until 2010. This apparent conflict on the chain of title is precisely the kind of factual dispute that a court ought not to resolve on affidavit evidence at an interlocutory hearing, but which calls for viva voce evidence and crossexamination at trial. 57. In the circumstances, the Court is not satisfied that the strict conditions for res judicata under Section 7 of the Civil ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 49 of

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Procedure Act have been demonstrated at this stage. This ground of the 1st Defendant's application fails. ISSUE No. b) Whether the suit by the Plaintiff is statute-barred under Section 7 of the Limitation of Actions Act, Cap. 22. 58. The provision of Section 7 of the Limitation of Actions Act, Cap. 22 provides: 7. Actions to recover land An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. 59. The in the case of:- “IGA –Versus - Makerere University [1972] E.A 65” where Mustafa, J.A held as follows: “A Plaint which is barred by limitation is a Plaint “barred by law”. Reading these provisions together it seems clear to me that unless the Appellant in this case had put himself within the limitation period by showing grounds upon which he could claim exemption the Court “shall reject” his claim. The Appellant was clearly out of time, ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 50 of

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and despite the opportunity afforded him by the Judge he did not show what grounds of exemption he relied on, presumably because none existed. The Limitation Act does not extinguish a suit or action itself but operates to bar the claim or remedy sought for, and when a suit is time barred, the Court cannot grant the remedy or relief sought.” 60. Law, Ag. V. P in the same case inter alia stated thus: “…The effect then is that if a suit is brought after the expiration of the period of limitation, and this is apparent from the Plaint, the Plaint must be rejected.” 61. In the case of:- “Gathoni – Versus - Kenya Co - operative Creameries Ltd, [1982] KLR 104” the Court of Appeal while dismissing an Appeal arising from an application for extension of time to bring a suit after the period of limitation had expired which the High Court had rejected Potter, J. A stated thus: “…..The Law of Limitation of Actions is intended to protect Defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending Plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Special Page 51 of

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provision is made for infants and for the mentally unsound. But, rightly or wrongly, the Act does not help persons like the Applicant who whether through dilatoriness or ignorance, do not do what the informed citizen would reasonably have done.” 62. Further in the case of:- “Mehta – Versus - Shah [1965] E.A 321”, Grabbie J.A in his Judgment stated as follows: “The object of any limitation enactment is to prevent a Plaintiff from prosecuting stale claims on the one hand, protect a Defendant after he has lost evidence for his defence from being disturbed after a long lapse of time. The effect of a limitation enactment is to remove remedies irrespective of the merits of the particular case.” 63. The question of limitation is indeed, as rightly put by the Respondent, a question that goes to the jurisdiction of the court. In the case of:- “Bosire Ongero – Versus - Royal Media Services [2015] eKLR”, the court stated:“the question of limitation touches on the jurisdiction of the court, which means that if a matter is statute barred the court would lack jurisdiction to entertain it.” ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 52 of

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64. In the case:- “Anaclet Kalia Musau – Versus - Attorney General & 2 Others [2020] eKLR Civil Appeal 111 of 2017”, this Court quoted from “the Iga – Versus - Makerere University (1972) E.A 62” where the East African Court of Appeal stated:“the limitation act does not extinguish a suit or action itself, but operates to bar the claim or remedy sought for and when a suit is time barred, the court cannot grant the remedy or relief… The effect then is that if a suit is brought after the expiry of the period of limitation the claim must be rejected.” 65. The 1st Defendant contends that the cause of action arose in or around the year 2010, when the earlier sub - division was quashed, rendering the suit time-barred. The Plaintiff argued, relying on the case of:- “Bosire Ongero – Versus - Royal Media Services (Supra)” for the proposition that a cause of action arises the moment a wrong is committed and not before, that its cause of action is founded on the 1 st Defendant's trespass in October, 2023 and the procurement of a fresh, competing title dated 11th April, 2025, and that limitation must run from the date the wrong was committed. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 53 of

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66. The Court accepts, for present purposes, the general proposition drawn from the case of:- “Bosire Ongero (Supra)” that a cause of action in trespass or for protection of a subsisting registered title accrues afresh upon each act of trespass or interference, and that a claim founded on an irregularly procured competing title accrues on discovery of that title, not on the date of an earlier, unrelated set of proceedings to which the claimant was a stranger. On the pleadings and affidavit evidence as they stand, the Plaintiff's cause of action is anchored on events of October, 2023 and April, 2025, both within the twelve-year limitation period, and not on the year 2010 judicial review ruling as such. Whether, upon a full trial, it emerges that the Plaintiff's true grievance is in substance an attempt to circumvent the year 2010 orders out of time is a matter for evidence and final determination, not for summary striking out. 67. This ground, too, does not meet the high threshold required for striking out a suit at the interlocutory stage, which requires the pleading to be so clearly and obviously ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 54 of

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unsustainable that no amount of evidence could cure it. Thus, I discern that the threshold has not been met. ISSUE No. c) Whether the Plaintiff has locus standi and a triable cause of action such that the suit ought not to be struck out as frivolous, vexatious or an abuse of process; 68. Under this Sub – heading, the Honourable Court shall be assessing the legal concept of “Locus Standi” and its application to the substantive issues at hand. In the fullness of time, the High Court has extensively through a myriad of precedents deliberated on this legal concept. Thus, there will be no point to re – invent the wheel whatsoever. To begin with, the Black’s Law Dictionary, 9 th Edition (page 1026) defines locus standi as:“the right to bring an action or to be heard in a given forum”. 69. In the case of: “Alfred Njau and Others – Versus - City Council of Nairobi [1982] KAR 229” it was held that:“The term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 55 of

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means that he has no right to appear or be heard in such and such proceedings”. 70. Locus standi is essential in civil proceedings because, without it, a party does not have the right to initiate or maintain a suit even if there is a valid cause of action. It can be compared to a court acting without jurisdiction. The question of locus standi relates to the substantive importance of the suit. It concerns the sufficiency and directness of a person’s interest in the litigation, which qualifies them to be a party to the case. It also involves a person’s capacity to perform a legal act. 71. Lord Pearson in the case of:- “Drummond-Jackson V.B.M.A. (1970) 1 W.L.R. 688 at p. 696 defined a cause of action as follows:"A cause of action is an act on the part of the Defendant which gives the Plaintiff his cause of complaint." 72. In the case of “Kimunya – Versus - Mohammed & Another (2022) KEEL 2264 (KLR)”, the court cited with approval the Court of Appeal dictum in the case of:- “ Muchanga Investment Limited –Versus - Safaris Unlimited (Africa) Limited & 2 others (2009) eKLR” where the court stated that:ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 56 of

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“The term ‘abuse of court process’ has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive!.” 73. The court in the above cited case went on to find that the Applicant (in the case) was abusing the court process by opting to file a fresh application instead of filing an application to reinstate the earlier one that had been dismissed. 74. The Black’s Law Dictionary, 6 th Edition, on the other hand defines ‘abuse’ as, “everything which is contrary to good order established by usage that is a complete departure from reasonable use.” 75. In the case of:- “Godfrey Paul Okutoyi (suing on his own behalf and on behalf of and representing and for the benefit of all past ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 57 of

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and present customers of Banking institutions of Kenya – Versus - Habil Olaka - Executive Director (Secretary of the Kenya Bankers Association being sued on behalf of Kenya Bankers Association) and Another (2018) eKLR, the court held that:“In the case of Muchangi Industries Ltd – Versus - Safaris Unlimited (Africa) Ltd & 2 others, the court of Appeal stated that the person who abuses process is interested only in accomplishing some improper purposes that is collateral to the proper object of the process and that offends justice. And in Governors Balloon Safaris Limited – Versus Attorney General & 2 others (supra) the court stated that ‘It is an abuse of the court process to institute several proceedings in order to challenge the same action and the court has inherent jurisdiction to prevent such abuse. Bearing in mind the above jurisprudence, it is not in doubt, that the Petitioner filed this petition after he failed in his quest in HCCC No 433 of 2003 and wanted to try his luck in this court. This is clearly an abuse of the court process that should not be tolerated.” ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 58 of

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76. Mativo J (as he then was) in the case of “ Satya Bhama Gandhi – Versus - Director of Public Prosecutions & 3 others (2018) eKLR”, was categorical that:“it is trite law, that the court has an inherent jurisdiction to protect itself from abuse or to see that its process is not abused……..the situations that may give rise to an abuse of court process are indeed in-exhaustive……it involves situations where the process of court has not been or resorted to fairly, properly honestly to the detriment of the other party.” 77. The Learned Judge correctly observed that ‘abuse of court process’ in addition to the above (incidences) arises in the following situations: a) ‘Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 59 of

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b) Instituting different actions between the same parties simultaneously in different courts even though on different grounds. c) Where 2 similar processes are used in respect of the same right for example a cross appeal, and a Respondent notice. d) Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by the court below. e) Where there is no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action. f) Where a party has adopted a system of forum shopping in the enforcement of a conceived right. g) Where an Appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the Respondent at the court of appeal. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 60 of

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h) Where 2 actions are commenced, the second asking for a relief which may have been obtained in the first. And abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the annoyance or irritation of an opponent.’ 78. Now application of these legal principles to the instant case. A Certificate of Title is, by dint of the provision of Section 26 (1) of the Land Registration Act, No. 3 of 2012, prima facie evidence of proprietorship, rebuttable only upon proof of fraud or misrepresentation to which the registered proprietor is proved, on the balance of probabilities, to be a party, or where the title has been acquired illegally, unprocedurally, or through a corrupt scheme. As the Court of Appeal held in the case of “Arthi Highway Developers Limited (Supra)” the sanctity of a registered title can only be impeached upon proof of fraud or illegality on the part of the registered proprietor itself. The Plaintiff has produced registry documents indicating that it is the current registered proprietor of the subdivided plots, and has, in addition, lodged ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 61 of

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a caution over the property marked as annexure “PNM - 2” to protect its asserted interest pending determination of the dispute. No fraud or illegality has, at this stage, been pleaded or demonstrated against the Plaintiff itself. That is sufficient, at this stage, to clothe the Plaintiff with locus standi to protect what it asserts to be its registered interest, without prejudice to the 1st Defendant's right to impeach that title at the full trial of these proceedings whatsoever. 79. Further, the Plaintiff points to the Judgment of this Court in the civil case “Kwale ELC No. 001 of 2023” (delivered by A. E. Dena, J.) on 9th December, 2024, dismissing a claim of adverse possession brought by the 1 st Defendant over the same land, and submits, relying on the case of “Muchanga Investments Limited (Supra)” that it is the 1st Defendant who is engaged in a pattern of multiple proceedings over the same subject matter. Unfortunately, in as much as this is a very serious allegation, but Court has not been furnished with the full pleadings or judgment in ELC No. 001 of 2023 and is therefore unable, at this interlocutory stage, to determine the precise issues that were adjudicated in that matter or the ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 62 of

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extent, if any, to which its outcome operates as an issue estoppel binding on the 1st Defendant in this suit. What can properly be said is that the existence of that prior, unsuccessful claim by the 1st Defendant over the same parcel is a matter properly available to the Plaintiff at trial, both on the substantive questions of title and on the question of the 1st Defendant's conduct, and it further underscores that the present dispute is not the straightforward, one-sided matter the 1st Defendant's application portrays it to be a further reason why summary termination of the suit at this stage would be inappropriate. 80. It is trite law that the power to strike out pleadings under the provision of Order 2 Rule 15 is one to be exercised sparingly and only in the plainest of cases, where the pleading discloses no reasonable cause of action, is scandalous, frivolous or vexatious, may prejudice or delay the fair trial of the action, or is otherwise an abuse of the process of the court. Given the existence of genuinely disputed questions of fact concerning the chain of title, the effect (if any) of the year 2010 judicial review orders on the Plaintiff's subsequently registered ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 63 of

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interests, the pending joinder and review application before the Mombasa High Court, the outcome of the prior adverse possession claim in ELC No. 001 of 2023, and the circumstances surrounding the issuance of the competing title of 11th April, 2025, this is not a plain and obvious case warranting summary termination of the suit. 81. Accordingly, and in view of the foregoing reasoning, the 1 st Defendant's Notice of Motion application dated 16 th July, 2025 is not merited and is hereby dismissed. ISSUE No. d) If the suit is not struck out, whether the Plaintiff has met the threshold for a temporary injunction and an order of inhibition pending the hearing and determination of the suit; 82. Having declined to strike out the suit, the Court turns to the Plaintiff's application dated 26th May, 2025. The law regarding grant of interlocutory injunctions is found in the provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010 which provide as follows: “Where in any suit it is proved by affidavit or otherwise: ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 64 of

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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; That the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff 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 order.” 83. Further, the principles upon which an interlocutory injunction may be granted are well settled in the famous case of “Giella – Versus - Cassman Brown & Co Ltd (Supra)”. A litigant has to establish a prima facie case with a probability of success and an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable ELCLC E045 of 2025 81 injury which would not HON. JUSTICE L.L NAIKUINI adequately be Page 65 of

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compensated by an award of damages. If in doubt, the court will decide the matter on a balance of convenience. 84. This is buttressed by the Court of Appeal in the case of:“Nguruman Limited – Versus – Jan Bonde Nielsen & 2 Others [2014] eKLR”, where they posited that the three ( 3 ) limbs were sequential. The Court stated as follows: “In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;(a) establish his case only irreparable at a injury prima facie if temporary a level, (b)demonstrate injunction is not granted, and(c)ally 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 stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See the case of:- “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 sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 66 of

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respondent will suffer, 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. The existence of a prima facie case does not permit “leapfrogging” by the applicant to injunction directly without crossing the other hurdles in between.” 85. The first test is the issue of a prima facie case. The words prima facie are derived from the Latin words “Prima facies, meaning first appearance or on the face of things. Oxford Dictionary of law – 7 th Edition 2009 – Oxford University Pages 422 defined the term prima facie as ‘a case that has been supported by sufficient evidence for it to be taken as proved should there be no adequate evidence to the contrary’ ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 67 of

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86. The Honorable Court is guided by the definition melted down in the case of “MRAO Limited (Supra)” whereby it stated:“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” 87. Similarly, under the same breath, Court in the case of “Mbuthia – Versus - Jimba Credit Corporation Limited 988 KLR 1”, held that:“In an application for interlocutory injunctions, the court is not required to make final findings of contested facts and law and the court should only weigh the relative strength of the party’s cases.” 88. Additionally, in the case of:- “Edwin Kamau Muniu – Versus - Barclays Bank of Kenya Limited” the court stated that:- ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 68 of

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“In an interlocutory application to determine the very issues which will be canvassed at the trial with finality All the court is entitled at this stage is whether the applicant is entitled to an injunction sought on the usual criteria.” 89. Applying this threshold, the Plaintiff/Applicant has exhibited a Certificate of Incorporation, an Agreement for Sale dated 4th November, 2009, evidence of payment of the purchase price, a Green Card reflecting registration in its name on 13th November, 2009, mutation forms and title deeds for the twenty (20) sub - divided plots, and a police report of an alleged trespass. This is sufficient, at this interlocutory stage, to disclose an arguable and prima facie case that calls for an answer from the 1 st Defendant/Respondent. 90. This finding is made strictly for the limited purposes of the interlocutory application and is without prejudice to the ultimate determination of the substantive suit, where the competing registry records, the true relationship (if any) between Kwale/Diani/144 and Kwale/Diani/SS/144, and the ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 69 of

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effect of the 2010 Plaintiff/Respondent's Judicial title will Review orders fall be to on the conclusively determined upon full evidence. 91. Consequently, this Court finds that the Plaintiff has established a prima facie case with a probability of success within the meaning of the principles laid down in “ Giella – Versus - Cassman Brown” and “Mrao Limited”. 92. Having found that the Plaintiff has established a prima facie case with a probability of success, this Court now proceeds to examine the second requirement for the grant of an interlocutory injunction, namely whether the Plaintiff has demonstrated that unless the orders sought are granted, he stands to suffer irreparable injury which cannot adequately be compensated by an award of damages. 93. 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 sufficient. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 70 of

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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.” 94. In the case of:- “American Cyanamid Co. Versus - Ethicon Limited [1975] AC 396” (adopted and applied by Kenyan courts including in the case of:- “Stanley Kangethe Kinyanjui – Versus Tony Ketter & 5 others [2013] eKLR)”, it was held that where damages would be an adequate remedy and the respondent is in a position to pay them, the court should not normally grant an injunction. 95. The subject matter here is land. Where as it is in case it was already sub - divided or alienated to innocent third parties pending suit would frequently difficult, if not impossible, to fully restore or adequately compensate in damages, particularly where sub - division and onward transfer to third parties would introduce intervening rights not answerable by the parties to this suit. The Plaintiff has demonstrated a real and present risk of alienation, given the 1 st Defendant's initiation of a fresh sub - division process over the same land. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 71 of

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96. Having found that the Plaintiff has established both a prima facie case with a probability of success and that he stands to suffer irreparable injury, this Court now turns to the third consideration, namely whether the balance of convenience tilts in favour of granting or refusing the interlocutory reliefs sought. That issue shall now be considered. 97. In the now famous case of:- “Butt – Versus - Rent Restriction Tribunal [1982] KLR 418”, the Court held:- "In considering the balance of convenience, the court must have regard to the strength of the respective cases and the likely outcome of the main suit." 98. In the case of “Pius Kipchirchir Kogo (Supra)” which defined the concept of balance of convenience as:“The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 72 of

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Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs 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 Plaintiff who will suffer. In other words, the Plaintiff 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”. 99. Further, 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 suffer 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 ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 73 of

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ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may influence 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.” 100. The decision of “Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR” where the learned judge offered 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.” 101. Where the Court is in doubt, the grant of an injunction is determined on the balance of convenience. This means the Court weighs the relative harm that would be suffered by each party if the injunction were granted or refused. 102. Additionally, the case of:- “Nguruman Ltd (Supra)”, the Court of Appeal stated:- ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 74 of

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"The balance of convenience test is applied only if the court is unable to make a determination on the first two Giella tests. It is a residual test. It entails a weighing of the harm that would be caused to each party by a refusal or grant of the injunction." 103. The doctrine of balance of convenience becomes particularly relevant where granting or refusing an injunction may occasion hardship to either party. It requires the Court to weigh the comparative inconvenience likely to be suffered by each side and determine which course best serves the interests of justice pending the final hearing of the suit. 104. The guiding objective is not to determine the substantive rights of the parties but to preserve the subject matter of the dispute in a manner that minimizes prejudice to either party until the issues in controversy are finally resolved. In this regard, the Court must adopt the course that is least likely to occasion injustice. 105. This Court finds that it clearly favours the preservation of the status quo ante — that is, the position as it stood immediately prior to the events of October, 2023 — pending ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 75 of

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the hearing and final determination of the suit. Maintaining the interim orders preserves the subject matter of the suit and occasions no incurable prejudice to the 1st Defendant/Respondent, who remains at liberty to fully ventilate his claim to the suit property at trial. Conversely, discharging the orders and permitting subdivision or alienation to proceed would risk rendering any eventual judgment in favour of the Plaintiff/Respondent nugatory. 106. As regards the order of inhibition sought under the provision of Section 68(1) of the Land Registration Act, No. 3 of 2012 and Section 79 ( 1 ), ( 2 ) & (3 ) of the Land Registration (General) Regulations, of 2017, this Court is guided by the case of “Muhari – Versus - Gakure [2023] eKLR”, in which it was held that an inhibition order serves the salutary purpose of preserving the suit property and preventing the registration of dealings that would defeat a genuine claimant's interest pending determination of a dispute. Given the finding above that there exists a real and present risk of alienation, this Court finds it just and ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 76 of

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expedient to grant an order of inhibition in terms substantially as prayed. 107. For the foregoing reasons, this Honourable Court finds that the Plaintiff/Applicant has satisfied the threshold of granting temporary injunctive orders as set out in the above cited precedents and an order of inhibition sought in order to preserve the suit property awaiting the outcome of the full trial herein. ISSUE No. e). Who should bear the costs of the two ( 2 ) applications 108. It is now well established that issues of Costs is at the discretion of the Court. Costs means the award that a party is granted at the conclusion of any legal action and/or proceeding in any litigation. The proviso of the provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follows the event, By events, it means the results from the legal action or proceedings. (See the Court of Appeal cases of “Rosemary Wambui Munene – Versus – Ihururu Dairy Co – operative Societies Limited (2014) eKLR; Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya Limited (2016) eKLR ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 77 of

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and the Supreme Court case of “Jasbir Rai Singh Rai – Versus – Tarchalon Singh” (2014 eKLR). 109. In the instant case, as both applications required full argument on genuinely contested points going to the ultimate title dispute between the parties, and given that the substantive rights of the parties remain to be determined at trial, the Court considers it just, fair and reasonable that costs of both applications abide the outcome of the main suit. VIII. Conclusion & Disposition 110. In long analysis, the Honorable Court has carefully considered and weighed the framed issues herein and based on the principles of the Preponderance of Probability and the balance of Convenience, I proceed to specifically order as follows:a) THAT the Notice of Motion application dated 16 th July, 2025 by the 1st Defendant/Applicant herein be and is hereby DISMISSED for lack of merit. b) THAT the Notice of Motion application dated 26 th May, 2025 ELCLC E045 of 2025 81 Plaintiff/Applicant found HON. JUSTICE L.L NAIKUINI to be Page 78 of

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meritorious and hence it be and is hereby hereby issued ALLOWED in the following terms:i. A temporary restraining injunction the 1st is Defendant/Respondent, whether by himself, his agents, servants, or assigns, from entering upon, trespassing on, sub - dividing, transferring, selling, leasing, charging, constructing interfering with on, the or in any way Plaintiff/Applicant's possession and ownership of all that parcel of land known resultant as Kwale/Diani/144 subdivisions Kwale/Diani/2166, and its Kwale/Diani/2147 to pending the hearing and final determination of this suit; ii. An order direction the Land Registrar, Kwale to of the registration of Inhibition be and is hereby issued under the provision of Section 68 (1), ( 2 ) & ( 3 ) of the Land Registration Act, No. 3 of 2012 and Section 79 ( 1 ) & ( 2 ) of The Land Registration (General) Regulations, 2017 ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 79 of

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restraining the registration of any dealings in respect of the said parcels of land, pending the hearing and final determination of this suit; iii. The Officer Commanding Station (OCS), Diani Police Station, is hereby directed to ensure compliance with the orders issued herein; c) THAT this matter be and is hereby fixed for a PreTrial Conference/Further Directions pursuant to the provision of Order 11 of the Civil procedure Rules, 2010 on case management on 11th November, 2026. There shall be a hearing on 3rd March, 2027 by the consensus of all parties before ELC No. 1 at Kwale preferably through Physical means. d) THAT the costs of both Notice of Motion applications shall abide the outcome of the main suit. IT IS SO ORDERED ACCORDINGLY. RULING DELIVERED VIDE MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS ………29 TH …………DAY OF …………SEPTEMBER……………..2026. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 80 of

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…………………………………. HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: a) Mr. Daniel Disii, the Court Assistant. b) M/s. Khalayi Advocate for the Plaintiff/Respondent. c) M/s. Kiti Advocate for the 2nd Defendant/Respondent. d) No appearance for the 1st Defendant. ELCLC E045 of 2025 81 HON. JUSTICE L.L NAIKUINI Page 81 of

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