The Application
The application before me is dated 18.2.2026. The applicants Evanson Mwakio and Juliet Mwakio have come to this court against the defendants seeking orders that pending inter partes hearing of this application, a temporary injunction do issue restraining the defendants, whether by themselves, their agents, servants, contractors or any person acting under their authority from:
a) Demolishing the plaintiffs’ bar and Restaurant and garage;
b) Evicting the Plaintiffs from land parcels MN/1/12057, MN/1/12469, and MN/1/12470.
c) Interfering in any manner whatsoever with the plaintiffs’ quiet possession of the said parcels.
That pending hearing and determination of the suit, a temporary injunction do issue in terms of prayer and that the Officer Commanding Station [OCS] Nyali Police Station, do assist in enforcement of the court’s orders. That costs of this application be provided for.
The application is based on grounds that the plaintiffs are the registered proprietors of the suit properties. The properties are extensively developed with commercial establishments. The defendants have threatened demolition without due process and no lawful compulsory acquisition has been undertaken. Lastly, no compensation has been offered.
The applicants contend that they have established a prima facie case with a probability of success. Irreparable loss will be suffered if demolition proceeds. The balance of convenience favours preservation of the status quo.
The application is supported by the affidavit of Evanson Mwakio who states that they are the registered owners of the suit property. The suit property is developed and has a bar, restaurant and a garage. The applicants are lawful owners of the property. The respondents have entered the same property with the intention of demolishing the same. They have refused to compensate plaintiffs.
Responces
The 1st and 2nd Respondents filed a replying affidavit alleging that the suit property was illegally allocated. That the survey plan F/R No. 132/135 does not show the existence of the plot. The survey plan FR No. 408/95 shows that the plots were created overlapping a road reserve along Mombasa Malindi road at the intersection of Nyali Links road.
That in Mombasa ELC No. 85 of 2013, in a suit by the Ethics and Anti-Corruption Commission the honorable court found that title to property referred to as MN/1/9816 was issued ultra vires thus illegal, null and void and the Land Registrar Mombasa was directed to cancel all the entries relating to the issuance of that certificate of title. That in the foregoing, the suit properties MN/1/12470 the subject matter of this current suit and MN/1/12059 an adjacent property were resultant subdivisions of MN/1/9816 thus MN/1/12470 have been overtaken by events and thus res judicata.
That further, the Plaintiffs have not demonstrated the rationale for inquiry and/or compensation. Consequently, the allegations of intended demolition and irreparable harm are speculative whereas the Defendants/Respondents have not issued any public notices to that effect.
The purported allegation of open, continuous, uninterrupted occupation and development of the suit properties does not infer legitimate ownership and neither does it confer any lawful proprietary rights and interests to the Plaintiffs/Applicants.
That in the foregoing the Application and suit in its entirety, does not disclose any legal and justifiable claim against the 1st Defendant.
According to the defendants, the balance of convenience lies in favour of the Defendants Respondents thus allowing the prayers sought will prejudice the public interest where the Plaintiffs/Applicants continue to possess and occupy public roads impeding the developing, rehabilitating and maintaining national trunk roads for the benefit of the public.
The 2nd defendant filed a replying affidavit stating if the plaintiff have a claim, it lies in damages. That the order sought is likely to cause huge financial loss to the public as the project to be stopped is a public project. Whereas the plaintiff will easily be compensated in damages.
The Mombasa-Mtwapa- Kilifi road project is crucial for the economic and social development as it will facilitate travel and movement of goods and promote tourism in the coastal region.
The Mombasa-Mtwapa-Kilifi road project is under the mandate of the 2nd Defendant and Links road is the under the jurisdiction of the Kenya urban Roads Authority.
The 2nd Defendant is scheduled to undertake the improvement of the Links Road and Mombasa-Mtwapa (A8) roads junction, under the Mombasa-Mtwapa- Kilifi road project,
The survey of the land at the junction of the Links Road an Mombasa Mtwapa-Kilifi road junction as depicted in FIR No. 152/135 published on 23rd September, 1980 did not reveal the existence of the suit properties (Exhibited hereto and marked Exhibit-I is a copy of FR No. 152/135).
The 2nd Defendant disputes that the Plaintiff is the lawful and registered owner of the suit properties on account that the suit properties were illegally excised from the road reserve for Links Roads, and Malindi road.
Vide the same FR No, 408/ 95, Plot MN/1/12469 was illegally created and excised from Mombasa-Malindi (A8) Road.
Further, the Plaintiffs did not comply with the special conditions contained in the letters of allotment issued in respective to the suit properties.
The Ethics and Anti-Corruption Commission in Mombasa EL No. 085 of 2013, successfully recovered title to land that had been illegally excised a road reserve, thereby creating a title for land parcel No. MN 1/9816-CR 28222.
The two parcels (MN/1/12059, MN/1/12470) are a creation of the subdivision of MN/ 1/9816 which the courts have already pronounced themselves, and final orders executed.
The suit properties were illegally created and have effectively blocked the two joining roads thereby endangering public safety and Order.
Analysis and Determination
I have considered the application and rival submissions and do find that the plaintiffs have demonstrated that they are registered owners of the suit properties. The titles have not been nullified though have been questioned. The plaintiffs were not parties in Mombasa ELC No. 85 of 2013, a suit by the Ethics and Anti-Corruption Commission where the mother title was cancelled.
Article 40 of the Constitution of Kenya (2010) guarantees every person the right to acquire, own, and enjoy property of any description in any part of Kenya, either individually or collectively. It protects against arbitrary deprivation of property by the State, requiring prompt, just compensation if property is acquired for public purposes. However the Article 40 of the constitution does not protect property illegally acquired. At this moment the evidence on record has not been tested as to the authenticity of the plaintiffs’ title.
I do find that the plaintiffs have established a prima facie case with a likelihood of success because they have the title to the property and are in possession and have developed the same. Moreover, the plaintiffs are likely to suffer irreparable damage or loss if injunction is not granted as their structures will be brought down which is likely to affect their livelihood. On the issue of balance of inconvenience, I do find that the plaintiff will suffer greater inconvenience if an injunction is not granted and later the succeed in their case because their business of many years will come to halt in one day. Whereas the defendants will not suffer greater inconvenience if injunction is granted and they succeed in the case because they will proceed with the project. I do allow the application in terms that pending hearing and determination of the suit, a temporary injunction is hereby issued to operate for 80 days only and that the Officer Commanding Station [OCS] Nyali Police Station, do assist in enforcement of the court’s orders. Due to public interest, the matter is scheduled for hearing of the main suit on the 7th and 8th July 2026. The defendants to file and serve their pleadings within 10 days. The plaintiff to reply within 10 days of service. Mention on the 1st of July 2026.
The application before me is dated 18.2.2026. The applicants Evanson Mwakio and Juliet Mwakio have come to this court against the defendants seeking orders that pending inter partes hearing of this application, a temporary injunction do issue restraining the defendants, whether by themselves, their agents, servants, contractors or any person acting under their authority from:
a) Demolishing the plaintiffs’ bar and Restaurant and garage;
b) Evicting the Plaintiffs from land parcels MN/1/12057, MN/1/12469, and MN/1/12470.
c) Interfering in any manner whatsoever with the plaintiffs’ quiet possession of the said parcels.
That pending hearing and determination of the suit, a temporary injunction do issue in terms of prayer and that the Officer Commanding Station [OCS] Nyali Police Station, do assist in enforcement of the court’s orders. That costs of this application be provided for.
The application is based on grounds that the plaintiffs are the registered proprietors of the suit properties. The properties are extensively developed with commercial establishments. The defendants have threatened demolition without due process and no lawful compulsory acquisition has been undertaken. Lastly, no compensation has been offered.
The applicants contend that they have established a prima facie case with a probability of success. Irreparable loss will be suffered if demolition proceeds. The balance of convenience favours preservation of the status quo.
The application is supported by the affidavit of Evanson Mwakio who states that they are the registered owners of the suit property. The suit property is developed and has a bar, restaurant and a garage. The applicants are lawful owners of the property. The respondents have entered the same property with the intention of demolishing the same. They have refused to compensate plaintiffs.
Responces
The 1st and 2nd Respondents filed a replying affidavit alleging that the suit property was illegally allocated. That the survey plan F/R No. 132/135 does not show the existence of the plot. The survey plan FR No. 408/95 shows that the plots were created overlapping a road reserve along Mombasa Malindi road at the intersection of Nyali Links road.
That in Mombasa ELC No. 85 of 2013, in a suit by the Ethics and Anti-Corruption Commission the honorable court found that title to property referred to as MN/1/9816 was issued ultra vires thus illegal, null and void and the Land Registrar Mombasa was directed to cancel all the entries relating to the issuance of that certificate of title. That in the foregoing, the suit properties MN/1/12470 the subject matter of this current suit and MN/1/12059 an adjacent property were resultant subdivisions of MN/1/9816 thus MN/1/12470 have been overtaken by events and thus res judicata.
That further, the Plaintiffs have not demonstrated the rationale for inquiry and/or compensation. Consequently, the allegations of intended demolition and irreparable harm are speculative whereas the Defendants/Respondents have not issued any public notices to that effect.
The purported allegation of open, continuous, uninterrupted occupation and development of the suit properties does not infer legitimate ownership and neither does it confer any lawful proprietary rights and interests to the Plaintiffs/Applicants.
That in the foregoing the Application and suit in its entirety, does not disclose any legal and justifiable claim against the 1st Defendant.
According to the defendants, the balance of convenience lies in favour of the Defendants Respondents thus allowing the prayers sought will prejudice the public interest where the Plaintiffs/Applicants continue to possess and occupy public roads impeding the developing, rehabilitating and maintaining national trunk roads for the benefit of the public.
The 2nd defendant filed a replying affidavit stating if the plaintiff have a claim, it lies in damages. That the order sought is likely to cause huge financial loss to the public as the project to be stopped is a public project. Whereas the plaintiff will easily be compensated in damages.
The Mombasa-Mtwapa- Kilifi road project is crucial for the economic and social development as it will facilitate travel and movement of goods and promote tourism in the coastal region.
The Mombasa-Mtwapa-Kilifi road project is under the mandate of the 2nd Defendant and Links road is the under the jurisdiction of the Kenya urban Roads Authority.
The 2nd Defendant is scheduled to undertake the improvement of the Links Road and Mombasa-Mtwapa (A8) roads junction, under the Mombasa-Mtwapa- Kilifi road project,
The survey of the land at the junction of the Links Road an Mombasa Mtwapa-Kilifi road junction as depicted in FIR No. 152/135 published on 23rd September, 1980 did not reveal the existence of the suit properties (Exhibited hereto and marked Exhibit-I is a copy of FR No. 152/135).
The 2nd Defendant disputes that the Plaintiff is the lawful and registered owner of the suit properties on account that the suit properties were illegally excised from the road reserve for Links Roads, and Malindi road.
Vide the same FR No, 408/ 95, Plot MN/1/12469 was illegally created and excised from Mombasa-Malindi (A8) Road.
Further, the Plaintiffs did not comply with the special conditions contained in the letters of allotment issued in respective to the suit properties.
The Ethics and Anti-Corruption Commission in Mombasa EL No. 085 of 2013, successfully recovered title to land that had been illegally excised a road reserve, thereby creating a title for land parcel No. MN 1/9816-CR 28222.
The two parcels (MN/1/12059, MN/1/12470) are a creation of the subdivision of MN/ 1/9816 which the courts have already pronounced themselves, and final orders executed.
The suit properties were illegally created and have effectively blocked the two joining roads thereby endangering public safety and Order.
Analysis and Determination
I have considered the application and rival submissions and do find that the plaintiffs have demonstrated that they are registered owners of the suit properties. The titles have not been nullified though have been questioned. The plaintiffs were not parties in Mombasa ELC No. 85 of 2013, a suit by the Ethics and Anti-Corruption Commission where the mother title was cancelled.
Article 40 of the Constitution of Kenya (2010) guarantees every person the right to acquire, own, and enjoy property of any description in any part of Kenya, either individually or collectively. It protects against arbitrary deprivation of property by the State, requiring prompt, just compensation if property is acquired for public purposes. However the Article 40 of the constitution does not protect property illegally acquired. At this moment the evidence on record has not been tested as to the authenticity of the plaintiffs’ title.
I do find that the plaintiffs have established a prima facie case with a likelihood of success because they have the title to the property and are in possession and have developed the same. Moreover, the plaintiffs are likely to suffer irreparable damage or loss if injunction is not granted as their structures will be brought down which is likely to affect their livelihood. On the issue of balance of inconvenience, I do find that the plaintiff will suffer greater inconvenience if an injunction is not granted and later the succeed in their case because their business of many years will come to halt in one day. Whereas the defendants will not suffer greater inconvenience if injunction is granted and they succeed in the case because they will proceed with the project. I do allow the application in terms that pending hearing and determination of the suit, a temporary injunction is hereby issued to operate for 80 days only and that the Officer Commanding Station [OCS] Nyali Police Station, do assist in enforcement of the court’s orders. Due to public interest, the matter is scheduled for hearing of the main suit on the 7th and 8th July 2026. The defendants to file and serve their pleadings within 10 days. The plaintiff to reply within 10 days of service. Mention on the 1st of July 2026.