'1. The Motion application filed on April 8, 2025, primarily seeks an injunction against the respondents, including actions such as entering, occupying, evicting the plaintiff’s employees, constructing, fencing, leasing, disposing of any interests, or undertaking any developments on the property known as LR No. 28534 C.R 53828 (the suit parcel). The applicant, as the registered administrator of this parcel, has provided a Certificate of Postal Search dated March 24, 2025.
2. The main issue involves multiple parcels, including LR NO. 29026-CR. 55423, LR NO. 29027-CR. 55422, LR NO. 29600-CR 59172, Madzimbeni/Mitangoni LR NO. 72, 73, 75, 76, 78, 79, 82, 85, 185, 764, 114, 921, 922, 872, 924, 925, 926, 923, 871, 93, 92, 845, 878, 876, 87, 874, 875, 877, 873, 861, 860, 119, 91, 88, 94, 117, 860, 861, 111 29026, 29027, registered in favor of various respondents, encroach upon parts of the subject parcel, causing an overlap.
3. The applicant filed a supplemental affidavit sworn on June 14, 2025, in response to allegations made by the respondents.
4. The 1st and 2nd respondents have opposed the application through notices of Preliminary Objections (POs), arguing that the suit is time-barred, barred by res judicata, lack of locus standi by the plaintiff to institute suit, and that, therefore, the court lacks jurisdiction to continue with the matter.
5. The 2nd respondent filed a reply affidavit sworn by its director, Hasmita Patel, on June 3, 2025.
6. The POs and the application were reviewed through written submissions. I acknowledge receipt of submissions from counsels representing the parties on the issues raised, and I thank them for their contributions to resolving those issues raised in the motions.
7. Based on the submissions and materials before me, the issues I outline for this court''s decision are whether the POs are sustainable, and if not, whether to issue an injunction, and who should bear the costs of the motions.
8. The 2nd respondent supports the POs by the 1st respondent; they contend that they are the duly registered owners of the parcels of land registered in their names, situated in Mitangoni, Mariakani. The other respondents also own several parcels of land neighboring their properties, all located at Mitangoni-Mariakani in Kilifi County. The ownership status of these parcels is not in doubt. The applicant falsely alleges that all the respondents’ titles are superimposed on his LR title—No—28534, measuring approximately 32 hectares.
9. They maintain that there is no superimposition and that the plaintiff’s title and the deed plan known as FR. 508/165 pertains to a different parcel of land in Kwale County, not overlying the respondents’ titles as alleged. Therefore, there is no superimposition. Such superimposition would only occur if the applicant’s attempt to re-survey their deed plan from FR. No. 508/165 to FR. No. 562/145 received full approval.
10. If that were the case, the applicant’s title would superimpose on the respondents’ titles, not vice versa, as claimed. However, no such full approval of the re-survey has been granted, as doing so would be unlawful and would leave landowners with landless titles without hearing their objections.
11. The allegation of superimposition has been raised by the applicant and/or their predecessors in different forums before. For example, in 1997, the applicant filed a suit against the respondents, raising the same claim of superimposition and trespass in Principal Magistrate Civil Suit No. 398 of 1997, Yaa Mangi Mavilo alias Mwanyule Mangi Yaa v Kitili Kiponda and Others. The same issue was also litigated under the jurisdiction of the Land Adjudication and Settlement Department of Kilifi, which was heard and decided on May 21, 2014. It was once again addressed in Mombasa ELC No. 158B of 2015, Tropical Treasures Limited v Krystalline Salt Limited and Others.
12. The respondents argue that the applicant has filed this suit again, raising the same issues but only modifying their pleadings and parties to try to evade the obvious fact that they are forum shopping.
13. The 2nd respondent, in its further PO, states that the applicant lacks the necessary locus standi to bring the suit. It is submitted that the plaintiff does not have the required standing to initiate and sustain this suit, having filed it solely in their capacity. However, upon reviewing the attached confirmed grant, the 1st respondent observes that there are two administrators. Therefore, it is evident that the applicant filed this suit without the co-administrator''s involvement, authority, or participation, contrary to clear legal provisions and binding judicial precedents. Sections 79 and 82 of the Law of Succession Act grant the applicant the power to initiate an action on behalf of the estate; however, if there are multiple administrators, they must act jointly.
14. The applicants assert that the Land Adjudication Officer (14th Respondent herein), in his letter dated March 12, 2014, with Ref. 275087(14)-Annexure CM-3 to the main Supporting Affidavit, confirmed in his communication to the Chairman of the National Lands Commission that the title to the suit parcel had already been issued and, therefore, was not part of the Mitangoni/Mazimbani Adjudication Section at that time. The suit parcel is hence registered land.
15. The applicant asserts that, surprisingly, the same 14th respondents proceeded to issue additional titles under the Land Consolidation Act and/or the Land Adjudication Act (Caps 283 and 284, respectively) of the Laws of Kenya. Following these unlawful allocations, the suit parcel was invaded by various squatters who were waving the said Adjudication titles.
16. The applicant states that the dispute involves a registered title, other than the suit parcels, including L.R. 29026-CR.55423, L.R 29027-CR NO.55422, L.R 29600-CR 591, Kilifi/Madzimbani/Mitangoni/94, and Kilifi/Madzimbani/Mitangoni/861, all of which have questionable origins. It is this court that has jurisdiction to examine the origins of the parties'' titles.
17. Regarding the issue of limitation, the applicant points out that the overlap of titles held by the respondents is an ongoing matter. As recently as October 15, 2024—less than a year ago—the applicant has been seeking audience and/or redress from the relevant authorities.
18. Regarding res judicata, it should be noted that the requested orders include, among other things, the correction of the suit parcel’s title and the nullification of all other overlapping titles claiming the same ground space as the suit parcel. The 2nd respondent has attached to its replying affidavit an annexure, HP 11, which is a ruling by the Senior Resident Magistrate, Mombasa, in MSA SRMCC number 398 of 1997. This ruling confirms that the suit was, in fact, withdrawn; therefore, res judicata will not apply.
19. To succeed on a Preliminary Objection (PO), the objection must raise purely legal points, which clearly fall within the scope delineated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, wherein it was held that:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
20. The grounds of objection are as follows: that the Plaintiff has failed to exhaust mandatory dispute resolution mechanisms under the Land Adjudication Act, Cap 284; that the doctrine of res judicata bars the suit; and that the Plaintiff lacks standing, having initiated this suit without the authority or involvement of his co-administrator.
21. We have two sets of titles from the applicants and the respondents. It is not contested that the adjudication process has been completed, and at the heart of this matter is the issue of how each party obtained their respective title; in other words, each title will be evaluated for authenticity.
22. The operation of section 29 of the Land Adjudication Act does not apply here, and therefore, the court has jurisdiction to handle the matter.
23. Regarding res judicata, the respondents assert that the current matter was heard and decided by the Land Adjudication Board in the case of Charo Manyule v Kitili Kiponda & Others. The case is attached and marked as an exhibit, labeled HP10 by the 2nd respondent. The issues raised in both the plaint and the application relate to the ownership of parcel No. 28534, CR53828, where the applicant claims to have acquired the property through the setting-apart procedure under the Trust Land Act. In contrast, the 1st defendant and others obtained it through adjudication. The case involved the same parties—the applicant and the defendants. The Land Adjudication Board had jurisdiction to hear and resolve the matter, and its decision was final, as outlined in section 26 of the Land Adjudication Act. The Board dismissed the objection because the plaintiff/applicant failed to prove the origin of their title to the property and because there were permanent buildings on the property without the applicant''s objection, among other reasons.
24. While that position is actual as stated above, there are allegations of overlap and two parallel titles, which the court needs to examine; therefore, res judicata will not apply. This is an issue that must be considered at the hearing rather than summarily through a PO.
25. This is also true regarding the ruling by the Senior Resident Magistrate, Mombasa, in MSA SRMCC number 398 of 1997. This ruling confirms that the suit was, in fact, withdrawn; therefore, res judicata does not apply.
26. On another front, the 2nd respondent claims that the applicant lacks locus standi. It is contended that the plaintiff filed on their own behalf. However, the confirmed grant shows two administrators. The applicant filed this suit without the co-administrator''s involvement or authority, contrary to the law and precedents.
27. While this is accurate, Sections 79 and 82 of the Law of Succession Act authorize the applicant to commence proceedings on behalf of the estate, provided that all administrators act collectively. This matter may also be considered at the hearing and does not constitute grounds for dismissing the suit at the preliminary stage.
28. Thus, the POs raised herein are not sustainable and are dismissed
29. Regarding the decision to grant an injunction now, without examining the substantive arguments of the parties, I agree with the established principles for issuing interlocutory injunctions as guided by principles from the landmark case of Giella v Cassman Brown & Co. Ltd [1973] EA 358. To obtain an injunction, an applicant must meet three conditions: show a prima facie case with a chance of success, indicating an apparent infringement of a right that requires an explanation from the other side; prove irreparable harm that cannot be compensated by damages, referring to significant harm that is difficult to quantify financially; and, if damages are uncertain, the court considers the balance of convenience, weighing the inconvenience to each side and choosing the option that causes the least injustice.
30. As previously noted, the parties each claim to hold titles to the disputed properties, asserting they have superior or rightful ownership against each other. The only way to determine the true owners is to examine the origins of these titles. Resolving the overlapping ownership claims can only be achieved through a full trial.
31. Consequently, there is nothing to injunct at this point.
32. The application dated April 8, 2025, is hereby dismissed.
33. Seeing that the POs and the application all collapsed, the costs shall be in the cause.
Dated, signed, and delivered electronically in Malindi on November 27, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Muthee for the 1st Defendant
Ms. Kggia for the 2nd Defendant
Mr. Nyoike for the 14th -16th Defendant
Happy: Court Assistant
In the absence of
Mr. Achoka for the plaintiff
'
2. The main issue involves multiple parcels, including LR NO. 29026-CR. 55423, LR NO. 29027-CR. 55422, LR NO. 29600-CR 59172, Madzimbeni/Mitangoni LR NO. 72, 73, 75, 76, 78, 79, 82, 85, 185, 764, 114, 921, 922, 872, 924, 925, 926, 923, 871, 93, 92, 845, 878, 876, 87, 874, 875, 877, 873, 861, 860, 119, 91, 88, 94, 117, 860, 861, 111 29026, 29027, registered in favor of various respondents, encroach upon parts of the subject parcel, causing an overlap.
3. The applicant filed a supplemental affidavit sworn on June 14, 2025, in response to allegations made by the respondents.
4. The 1st and 2nd respondents have opposed the application through notices of Preliminary Objections (POs), arguing that the suit is time-barred, barred by res judicata, lack of locus standi by the plaintiff to institute suit, and that, therefore, the court lacks jurisdiction to continue with the matter.
5. The 2nd respondent filed a reply affidavit sworn by its director, Hasmita Patel, on June 3, 2025.
6. The POs and the application were reviewed through written submissions. I acknowledge receipt of submissions from counsels representing the parties on the issues raised, and I thank them for their contributions to resolving those issues raised in the motions.
7. Based on the submissions and materials before me, the issues I outline for this court''s decision are whether the POs are sustainable, and if not, whether to issue an injunction, and who should bear the costs of the motions.
8. The 2nd respondent supports the POs by the 1st respondent; they contend that they are the duly registered owners of the parcels of land registered in their names, situated in Mitangoni, Mariakani. The other respondents also own several parcels of land neighboring their properties, all located at Mitangoni-Mariakani in Kilifi County. The ownership status of these parcels is not in doubt. The applicant falsely alleges that all the respondents’ titles are superimposed on his LR title—No—28534, measuring approximately 32 hectares.
9. They maintain that there is no superimposition and that the plaintiff’s title and the deed plan known as FR. 508/165 pertains to a different parcel of land in Kwale County, not overlying the respondents’ titles as alleged. Therefore, there is no superimposition. Such superimposition would only occur if the applicant’s attempt to re-survey their deed plan from FR. No. 508/165 to FR. No. 562/145 received full approval.
10. If that were the case, the applicant’s title would superimpose on the respondents’ titles, not vice versa, as claimed. However, no such full approval of the re-survey has been granted, as doing so would be unlawful and would leave landowners with landless titles without hearing their objections.
11. The allegation of superimposition has been raised by the applicant and/or their predecessors in different forums before. For example, in 1997, the applicant filed a suit against the respondents, raising the same claim of superimposition and trespass in Principal Magistrate Civil Suit No. 398 of 1997, Yaa Mangi Mavilo alias Mwanyule Mangi Yaa v Kitili Kiponda and Others. The same issue was also litigated under the jurisdiction of the Land Adjudication and Settlement Department of Kilifi, which was heard and decided on May 21, 2014. It was once again addressed in Mombasa ELC No. 158B of 2015, Tropical Treasures Limited v Krystalline Salt Limited and Others.
12. The respondents argue that the applicant has filed this suit again, raising the same issues but only modifying their pleadings and parties to try to evade the obvious fact that they are forum shopping.
13. The 2nd respondent, in its further PO, states that the applicant lacks the necessary locus standi to bring the suit. It is submitted that the plaintiff does not have the required standing to initiate and sustain this suit, having filed it solely in their capacity. However, upon reviewing the attached confirmed grant, the 1st respondent observes that there are two administrators. Therefore, it is evident that the applicant filed this suit without the co-administrator''s involvement, authority, or participation, contrary to clear legal provisions and binding judicial precedents. Sections 79 and 82 of the Law of Succession Act grant the applicant the power to initiate an action on behalf of the estate; however, if there are multiple administrators, they must act jointly.
14. The applicants assert that the Land Adjudication Officer (14th Respondent herein), in his letter dated March 12, 2014, with Ref. 275087(14)-Annexure CM-3 to the main Supporting Affidavit, confirmed in his communication to the Chairman of the National Lands Commission that the title to the suit parcel had already been issued and, therefore, was not part of the Mitangoni/Mazimbani Adjudication Section at that time. The suit parcel is hence registered land.
15. The applicant asserts that, surprisingly, the same 14th respondents proceeded to issue additional titles under the Land Consolidation Act and/or the Land Adjudication Act (Caps 283 and 284, respectively) of the Laws of Kenya. Following these unlawful allocations, the suit parcel was invaded by various squatters who were waving the said Adjudication titles.
16. The applicant states that the dispute involves a registered title, other than the suit parcels, including L.R. 29026-CR.55423, L.R 29027-CR NO.55422, L.R 29600-CR 591, Kilifi/Madzimbani/Mitangoni/94, and Kilifi/Madzimbani/Mitangoni/861, all of which have questionable origins. It is this court that has jurisdiction to examine the origins of the parties'' titles.
17. Regarding the issue of limitation, the applicant points out that the overlap of titles held by the respondents is an ongoing matter. As recently as October 15, 2024—less than a year ago—the applicant has been seeking audience and/or redress from the relevant authorities.
18. Regarding res judicata, it should be noted that the requested orders include, among other things, the correction of the suit parcel’s title and the nullification of all other overlapping titles claiming the same ground space as the suit parcel. The 2nd respondent has attached to its replying affidavit an annexure, HP 11, which is a ruling by the Senior Resident Magistrate, Mombasa, in MSA SRMCC number 398 of 1997. This ruling confirms that the suit was, in fact, withdrawn; therefore, res judicata will not apply.
19. To succeed on a Preliminary Objection (PO), the objection must raise purely legal points, which clearly fall within the scope delineated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, wherein it was held that:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
20. The grounds of objection are as follows: that the Plaintiff has failed to exhaust mandatory dispute resolution mechanisms under the Land Adjudication Act, Cap 284; that the doctrine of res judicata bars the suit; and that the Plaintiff lacks standing, having initiated this suit without the authority or involvement of his co-administrator.
21. We have two sets of titles from the applicants and the respondents. It is not contested that the adjudication process has been completed, and at the heart of this matter is the issue of how each party obtained their respective title; in other words, each title will be evaluated for authenticity.
22. The operation of section 29 of the Land Adjudication Act does not apply here, and therefore, the court has jurisdiction to handle the matter.
23. Regarding res judicata, the respondents assert that the current matter was heard and decided by the Land Adjudication Board in the case of Charo Manyule v Kitili Kiponda & Others. The case is attached and marked as an exhibit, labeled HP10 by the 2nd respondent. The issues raised in both the plaint and the application relate to the ownership of parcel No. 28534, CR53828, where the applicant claims to have acquired the property through the setting-apart procedure under the Trust Land Act. In contrast, the 1st defendant and others obtained it through adjudication. The case involved the same parties—the applicant and the defendants. The Land Adjudication Board had jurisdiction to hear and resolve the matter, and its decision was final, as outlined in section 26 of the Land Adjudication Act. The Board dismissed the objection because the plaintiff/applicant failed to prove the origin of their title to the property and because there were permanent buildings on the property without the applicant''s objection, among other reasons.
24. While that position is actual as stated above, there are allegations of overlap and two parallel titles, which the court needs to examine; therefore, res judicata will not apply. This is an issue that must be considered at the hearing rather than summarily through a PO.
25. This is also true regarding the ruling by the Senior Resident Magistrate, Mombasa, in MSA SRMCC number 398 of 1997. This ruling confirms that the suit was, in fact, withdrawn; therefore, res judicata does not apply.
26. On another front, the 2nd respondent claims that the applicant lacks locus standi. It is contended that the plaintiff filed on their own behalf. However, the confirmed grant shows two administrators. The applicant filed this suit without the co-administrator''s involvement or authority, contrary to the law and precedents.
27. While this is accurate, Sections 79 and 82 of the Law of Succession Act authorize the applicant to commence proceedings on behalf of the estate, provided that all administrators act collectively. This matter may also be considered at the hearing and does not constitute grounds for dismissing the suit at the preliminary stage.
28. Thus, the POs raised herein are not sustainable and are dismissed
29. Regarding the decision to grant an injunction now, without examining the substantive arguments of the parties, I agree with the established principles for issuing interlocutory injunctions as guided by principles from the landmark case of Giella v Cassman Brown & Co. Ltd [1973] EA 358. To obtain an injunction, an applicant must meet three conditions: show a prima facie case with a chance of success, indicating an apparent infringement of a right that requires an explanation from the other side; prove irreparable harm that cannot be compensated by damages, referring to significant harm that is difficult to quantify financially; and, if damages are uncertain, the court considers the balance of convenience, weighing the inconvenience to each side and choosing the option that causes the least injustice.
30. As previously noted, the parties each claim to hold titles to the disputed properties, asserting they have superior or rightful ownership against each other. The only way to determine the true owners is to examine the origins of these titles. Resolving the overlapping ownership claims can only be achieved through a full trial.
31. Consequently, there is nothing to injunct at this point.
32. The application dated April 8, 2025, is hereby dismissed.
33. Seeing that the POs and the application all collapsed, the costs shall be in the cause.
Dated, signed, and delivered electronically in Malindi on November 27, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Muthee for the 1st Defendant
Ms. Kggia for the 2nd Defendant
Mr. Nyoike for the 14th -16th Defendant
Happy: Court Assistant
In the absence of
Mr. Achoka for the plaintiff
'