'1. Vide a notice of motion dated 13.06.2025 expressed to be filed pursuant to Sections 1A, 1B, 3A and 63 (e) of the civil Procedure Act, Order 40 Rules 1 and 2 of the Civil Procedure Rules and all other enabling provisions of the law, the plaintiffs sought a temporary injunction to restrain the defendants from carrying out any “adverse” activities on sub-divisions Nos. 14216 and 1422 of Plot No. 819/II/MN (Original 324) including charging, sub-dividing or selling the properties pending the hearing and determination of the suit.
2. The application was based upon the grounds set out on the face of the motion and the contents of the supporting affidavit sworn by Francis Mwanguo on even date and a further affidavit which he swore on 24.07.2025. It was contended that the plaintiffs had been possession of the suit properties for over 30 years and that they were apprehensive that the defendants might take adverse steps in dealing i with the properties which may be prejudicial to their claim for adverse possession. They pleaded that they had developed the properties by constructing houses and growing crops thereon. The plaintiffs also filed a further affidavit sworn by their advocate on 05.11.2025 whereby he exhibited a copy of his practising certificate.
3. The defendants filed a replying affidavit sworn by Mahmood Kassam on 05.08.2025 on his own behalf and a behalf of the 2nd and 4th defendants. It was pleaded that the advocates who had signed the plaintiffs’ pleadings and affidavits did not hold valid practising certificates at the material time. It was pleaded that the instant suit was sub judice on account on the pendency of 2 other similar suits over the same subject matter namely, Mombasa ELC 133 of 2015 and Mombasa ELC No. 301 of 2025. It was contended that at least 10 of the current plaintiffs were parties in the other two suits.
4. The defendants contended that the plaintiffs were residents of Kilifi County whereas they were claiming adverse possession of land located within Mombasa County. It was also contended that the plaintiffs had failed to annex copies of extracts of title of sub-divisions 14216 and 1422 which they were claiming hence making their claim untenable.
5. The defendants also filed a notice of preliminary objection dated 06.08.2025. They contended that there was no valid supporting affidavit to the originating summons since the one on record was commissioned by an Advocate without a valid license. It was further contended that in the absence of a valid supporting affidavit the summons was fatally defective hence it ought to be struck out for contravening Order 37 (2) of the Civil Procedure Rules.
6. When the application was listed for directions it was directed that it shall be canvassed through written submissions. The record shows that the plaintiffs filed submissions dated 04.11.2025 whereas the defendants’ submission were dated 30.10.2025.
7. The court has considered the plaintiffs’ motion dated 13.06.2025, the defendants’ replying affidavit and notice of preliminary objection as well as the submissions on record. The court is of the view that the following are the key issues which arise for determination herein;
a) Whether the plaintiffs’’ suit is incompetent for want of a competent supporting affidavit.
b) Whether the instant suit is sub judice.
c) Whether the plaintiffs have made out a case for the grant of an interim injunction.
d) Who shall bear the costs of the application.
8. The court has considered the material and submissions on record on the first issue. There is no doubt from the material on record that the plaintiffs’ advocate did not a valid practising certificate at the time of filing suit in June 2025. It would also appear that the advocate who commissioned the supporting affidavits did not have a practising certificate at the material time.
9. The defendants’ advocate has, however, drawn the court’s attention to Section 34 (B) (2) of the Advocates Act (Cap 16) which stipulates as follows;
“Notwithstanding any other provisions of this Act, nothing shall affect the validity of any legal document drawn or prepared by an advocate without a valid practising certificate.”
10. The court is of the view that the said provision covers not only pleadings drawn by unlicensed advocates but also affidavits commissioned by such advocates. The court is further of the opinion that Section 34 (B)(2) of the said Act ought to be given a purposive interpretation otherwise it would not serve its intended purpose of protecting unsuspecting clients from the drastic action of striking out pleadings filed by unauthorized legal practitioners. An ordinary client is unlikely to know which legal practitioners are duly licensed to draw pleadings or commission affidavits hence they ought to enjoy full protection of Section 34 (B)(2) of the Act.
11. The court has considered the material and submissions on record on the second issue. Section 6 of the Civil Procedure Act (Cap 21) which deals with sub judice stipulates as follows;
“ No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
Explanation - The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.”
12. The material on record shows that the defendants’ contention is that only about 10 out of the 150 plaintiffs are involved in the other 2 suits which were filed earlier. The rest of the plaintiffs do not appear to be privy to those suits. The court is thus not satisfied that the requirements of Section 6 of the Civil Procedure Act has been satisfied in relation to the plaintiffs’ suit. However, in order to avoid the abuse of the court process the defendants may apply to have the names of those 10 plaintiffs struck out of the instant suit.
13. The court has considered the material and submissions on record on the third issue. The plaintiffs pleaded in their application that they had been in possession of the suit properties for over 30 years and that the defendant “never interfered” with their occupation for that period. The plaintiffs have not placed any material on record to demonstrate any threat or danger of imminent interference. It was not alleged or demonstrated that the defendants have changed their mind. There is no credible material on record to demonstrate that the defendants intend to charge, sub-divide or sell the suit properties before the pending suit is heard and concluded. As a result, the court finds that the plaintiffs have not demonstrated a prima facie case within the meaning of the law. There is no indication that the defendants have violated or threatened to violate any of the plaintiffs’ legal rights within the meaning of the test laid down in the case of Mrao Limited vs First American Bank of Kenya Ltd & 2 Others (Civil Appeal 39 of 2002)[2003] KECA 175 (KLR) (7 March 2003) (Judgment).
14. The court is thus of the view that in the absence of demonstration of a prima face case the court does not have to consider the second and third principles for the grant of an injunction as was laid out in the case Giella vs Cassman Brown & Co Ltd [1973] EA 358. In the event, the court is not satisfied that the plaintiffs have made out a case for the grant of the interlocutory injunction sought.
15. Regarding the award of costs, the court is of the view that costs shall follow the event as stipulated in the provisio of Section 27 of the Civil Procedure Act. However, since the plaintiffs have failed in their application and the defendants have failed in their preliminary objection, the court is of the view that costs should be in the cause.
16. The upshot of the foregoing is that the court finds no merit in both the defendants’ notice preliminary objection as well as the plaintiffs’ application for an injunction. Consequently, the court makes the following disposal orders;
a) The defendants’ notice of preliminary objection dated 06.08.2025 is hereby overruled.
b) The plaintiffs’ notice of motion dated 13.06.2025 is hereby dismissed.
c) Costs of both the application and the preliminary objection shall be in the cause.
d) The suit shall be mentioned on 25.02.2026 for pre-trial directions.
Ruling dated and signed at Mombasa and delivered virtually via Microsoft Teams on this 20th day of November, 2025.
In the presence of:
Court Assistant Gillian
Mr. Otare for the plaintiffs
Mr. Mutugi for the defendants
'
2. The application was based upon the grounds set out on the face of the motion and the contents of the supporting affidavit sworn by Francis Mwanguo on even date and a further affidavit which he swore on 24.07.2025. It was contended that the plaintiffs had been possession of the suit properties for over 30 years and that they were apprehensive that the defendants might take adverse steps in dealing i with the properties which may be prejudicial to their claim for adverse possession. They pleaded that they had developed the properties by constructing houses and growing crops thereon. The plaintiffs also filed a further affidavit sworn by their advocate on 05.11.2025 whereby he exhibited a copy of his practising certificate.
3. The defendants filed a replying affidavit sworn by Mahmood Kassam on 05.08.2025 on his own behalf and a behalf of the 2nd and 4th defendants. It was pleaded that the advocates who had signed the plaintiffs’ pleadings and affidavits did not hold valid practising certificates at the material time. It was pleaded that the instant suit was sub judice on account on the pendency of 2 other similar suits over the same subject matter namely, Mombasa ELC 133 of 2015 and Mombasa ELC No. 301 of 2025. It was contended that at least 10 of the current plaintiffs were parties in the other two suits.
4. The defendants contended that the plaintiffs were residents of Kilifi County whereas they were claiming adverse possession of land located within Mombasa County. It was also contended that the plaintiffs had failed to annex copies of extracts of title of sub-divisions 14216 and 1422 which they were claiming hence making their claim untenable.
5. The defendants also filed a notice of preliminary objection dated 06.08.2025. They contended that there was no valid supporting affidavit to the originating summons since the one on record was commissioned by an Advocate without a valid license. It was further contended that in the absence of a valid supporting affidavit the summons was fatally defective hence it ought to be struck out for contravening Order 37 (2) of the Civil Procedure Rules.
6. When the application was listed for directions it was directed that it shall be canvassed through written submissions. The record shows that the plaintiffs filed submissions dated 04.11.2025 whereas the defendants’ submission were dated 30.10.2025.
7. The court has considered the plaintiffs’ motion dated 13.06.2025, the defendants’ replying affidavit and notice of preliminary objection as well as the submissions on record. The court is of the view that the following are the key issues which arise for determination herein;
a) Whether the plaintiffs’’ suit is incompetent for want of a competent supporting affidavit.
b) Whether the instant suit is sub judice.
c) Whether the plaintiffs have made out a case for the grant of an interim injunction.
d) Who shall bear the costs of the application.
8. The court has considered the material and submissions on record on the first issue. There is no doubt from the material on record that the plaintiffs’ advocate did not a valid practising certificate at the time of filing suit in June 2025. It would also appear that the advocate who commissioned the supporting affidavits did not have a practising certificate at the material time.
9. The defendants’ advocate has, however, drawn the court’s attention to Section 34 (B) (2) of the Advocates Act (Cap 16) which stipulates as follows;
“Notwithstanding any other provisions of this Act, nothing shall affect the validity of any legal document drawn or prepared by an advocate without a valid practising certificate.”
10. The court is of the view that the said provision covers not only pleadings drawn by unlicensed advocates but also affidavits commissioned by such advocates. The court is further of the opinion that Section 34 (B)(2) of the said Act ought to be given a purposive interpretation otherwise it would not serve its intended purpose of protecting unsuspecting clients from the drastic action of striking out pleadings filed by unauthorized legal practitioners. An ordinary client is unlikely to know which legal practitioners are duly licensed to draw pleadings or commission affidavits hence they ought to enjoy full protection of Section 34 (B)(2) of the Act.
11. The court has considered the material and submissions on record on the second issue. Section 6 of the Civil Procedure Act (Cap 21) which deals with sub judice stipulates as follows;
“ No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
Explanation - The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.”
12. The material on record shows that the defendants’ contention is that only about 10 out of the 150 plaintiffs are involved in the other 2 suits which were filed earlier. The rest of the plaintiffs do not appear to be privy to those suits. The court is thus not satisfied that the requirements of Section 6 of the Civil Procedure Act has been satisfied in relation to the plaintiffs’ suit. However, in order to avoid the abuse of the court process the defendants may apply to have the names of those 10 plaintiffs struck out of the instant suit.
13. The court has considered the material and submissions on record on the third issue. The plaintiffs pleaded in their application that they had been in possession of the suit properties for over 30 years and that the defendant “never interfered” with their occupation for that period. The plaintiffs have not placed any material on record to demonstrate any threat or danger of imminent interference. It was not alleged or demonstrated that the defendants have changed their mind. There is no credible material on record to demonstrate that the defendants intend to charge, sub-divide or sell the suit properties before the pending suit is heard and concluded. As a result, the court finds that the plaintiffs have not demonstrated a prima facie case within the meaning of the law. There is no indication that the defendants have violated or threatened to violate any of the plaintiffs’ legal rights within the meaning of the test laid down in the case of Mrao Limited vs First American Bank of Kenya Ltd & 2 Others (Civil Appeal 39 of 2002)[2003] KECA 175 (KLR) (7 March 2003) (Judgment).
14. The court is thus of the view that in the absence of demonstration of a prima face case the court does not have to consider the second and third principles for the grant of an injunction as was laid out in the case Giella vs Cassman Brown & Co Ltd [1973] EA 358. In the event, the court is not satisfied that the plaintiffs have made out a case for the grant of the interlocutory injunction sought.
15. Regarding the award of costs, the court is of the view that costs shall follow the event as stipulated in the provisio of Section 27 of the Civil Procedure Act. However, since the plaintiffs have failed in their application and the defendants have failed in their preliminary objection, the court is of the view that costs should be in the cause.
16. The upshot of the foregoing is that the court finds no merit in both the defendants’ notice preliminary objection as well as the plaintiffs’ application for an injunction. Consequently, the court makes the following disposal orders;
a) The defendants’ notice of preliminary objection dated 06.08.2025 is hereby overruled.
b) The plaintiffs’ notice of motion dated 13.06.2025 is hereby dismissed.
c) Costs of both the application and the preliminary objection shall be in the cause.
d) The suit shall be mentioned on 25.02.2026 for pre-trial directions.
Ruling dated and signed at Mombasa and delivered virtually via Microsoft Teams on this 20th day of November, 2025.
In the presence of:
Court Assistant Gillian
Mr. Otare for the plaintiffs
Mr. Mutugi for the defendants
'