'1. The application dated June 25, 2025, requested, among other reliefs, the preservation of the current state of the suit property Kilifi /Chembe/ Kibabamshe/376 pending the hearing and determination of this case, with associated costs.
2. The affidavit sworn by Richard Kimani supports the application, annexed to the application filed herein.
3. The application is opposed; there is a replying affidavit sworn by Anthony Safari Kitsao, grounds of opposition, and a Preliminary Objection (PO) filed by the respondent.
4. Arising from the materials and submissions by counsel Mr. Gikandi for the applicants and Mr. Ingutya for the respondents, the issues I frame for the determination of this court are whether the application is sustainable, whether to issue the orders sought, and who should bear the costs of the application.
5. Mr.Gikandi submits that, whereas this suit is pending and in total violation of the doctrine of lis pendens, the respondent has descended on the suit property and commenced building a wall around it. This wall should be brought down, and the suit should remain intact pending the hearing of this suit.
6. Besides, there is an appeal filed against the decision of this court (Olola J.) that declined to issue injunctive relief.
7. Mr. Ingutya contends that the current application represents an abuse of the court process, as similar applications have been dealt with in this suit and other suits between the parties.
8. I have reviewed the submissions by the parties and considered their litigation history. I summarized it in my judgment dated February 5, 2025, in petition No. 38 of 2021, reported as Mikaal Limited v Land Registrar Kilifi County & 2 others (Petition 38 of 2021) [2025] KEELC 445 (KLR) (5 February 2025):
On the 3rd of May 2023, this court gave an elaborate ruling on a Preliminary Objection that the 3rd respondent had raised. There were suits similar to this one, significantly Malindi ELC Petition No. 17 of 2015, formerly Mombasa HCC Petition No. 12, 13, and 14 of 2011, challenging an embargo placed on the Chembe/Kibabamshe registration Section (where the suit property falls) and ELC No. 42 of 2021, seeking injunctive orders against the 3rd respondent.
22. In paragraph 45 of the court’s ruling, it stated:
“I have perused the ruling attached in Malindi ELC No. 42 of 2021; the parties and the subject matter are the same. In the current suit, the petitioner has joined the Registrar of Lands, Mombasa, and the Attorney General. In the former suit, the petitioner had sought injunctive reliefs citing similar reasons as in this case—the Olola J’s, ruling which I have quoted above, declined to grant the orders sought, traced the root of the titles held by parties, and quoted other matters between the parties. The former suit is still pending and active. I have not been told why it has been abandoned, and the current one filed over the same subject matter and involving the same parties.
I stated that the above scenario offends the sub judice, and I add - constitutional avoidance doctrines. In his ruling in Mikaal Limited v Dawagi Investments Limited (Environment & Land Case 42 of 2021) [2022] KEELC 3385 (KLR) (28 July 2022) (Ruling) by Olola J., captured the chronology of the acquisition of each of the parties'' title documents in this manner:
“In the matter before me, both the Plaintiff and the Defendant lay claim to the suit property – Chembe/Kibabamshe/376, said to be measuring some 2.5 acres. Both Parties have produced copies of Certificates of Lease pursuant to which they lay claim to the land. I note, however, that while the Plaintiff has produced a Certificate of Lease indicating the date of registration as 30th December 1996, there was no evidence of registration of the same at the Lands Registry. I say so because the Plaintiff has neither produced a Certificate of Official Search nor a White Card or any other documentary evidence indicating the registration of the Lease in any official record.
On its part, the Defendant has produced a copy of a Title Deed dated 10th March, 2015. The Defendant has also produced several copies of Certificates of Official Searches issued over the years by the Land Registrar as proof of its registration as the proprietor of the land. The Defendant has equally availed the history of the land, indicating how the same was transferred and discharged from the Settlement Fund Trustees to its successors in title before it acquired the same through a Sale Agreement.
17. While the Plaintiff contends that its ownership of the suit property was validated by the National Land Commission through a Gazette Notice published by the Commission on 17th July 2017, it was clear to me that the Commission had since reviewed its position and that by another Gazette Notice dated 25th May 2018, the Commission did recommend that the suit property “be regularized” in favour of the Defendant.
18. Again, while the Plaintiff contended that it had been in occupation and possession of the suit property since the 1990s, I was not persuaded that the Plaintiff was being candid with the Court. From the Defendant’s Replying Affidavit, it was apparent that the Plaintiff had filed ELC Petition Nos. 12 of 2011, 13 of 2011, 14 of 2011, as well as ELC Petition No. 17 of 2015, which Petitions were later consolidated. A perusal of the pleadings in the said Petitions reveal that the Plaintiff had sought recovery orders against the Government to be availed the suit property on the ground that it had been unable to take possession and carry out development thereon because of an embargo placed against the property by the Government. In the alternative, the Plaintiff had sought recovery for compensation for the loss of use of the suit property
In its Supporting Affidavit, sworn by its director Richard Karanja in Petition No 17 of 2015, the Plaintiff states at Paragraphs 5 and 7 thereof as follows:
“5. That it is apparent that the Interested party (one Daniel Runya Gamba) has apparently sold his interest in Plot No. Chembe/ Kibabamshe/376 to Changawa Mranai Mulila and Rollingstone Jefa Mrandzi, who had apparently also sold their interest for a consideration of Kenya Shillings Fourteen Million Two Hundred Fifty Thousand (Kshs . 14,250,000/-) to Dawagi Investments Limited. The said Parties’ transactions thereon are evidenced in an Agreement of Sale dated 30th June, 2014 between the said parties. I annex a copy of the said Agreement for Sale as annexure “MJK-2”
. .7. That following the dismissal of the Petition herein, the Interested Party and his aforesaid agents have moved on to the suit property and have threatened that they will physically and forcefully remove the Petitioners therefrom with regard to Plot No. Chembe/Kibabamshe/376.”
20. Arising from the foregoing, it was apparent that the Plaintiff was aware that the Defendant had acquired an interest in the suit property as far back as the year 2014 and that it did not take any steps to restrain the Defendant from dealing with the suit property.
21. As the Court of Appeal stated in Nguruman Limited v Jan Bonde Nielsen & 2 Others (2014) eKLR:
“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive, and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion.” 22. In the circumstances herein, I was not persuaded that the Plaintiff had established a prima facie case and/or that it stood to suffer any loss irreparable or otherwise as a result of the Defendant''s alleged actions. It follows that I did not find any merit in the Motion dated 11th May, 2021. It is dismissed with costs to the Defendants.”
9. It then appears to me that we are repeatedly dealing with the same issues, which constitutes an abuse of the court process.
10. Therefore, the application filed on June 25, 2025, is dismissed with costs.
Dated, signed, and delivered electronically in Malindi on November 6, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Murage for the Plaintiff
Mr. Ingutya for the Defendant
Happy: Court Assistant
'
2. The affidavit sworn by Richard Kimani supports the application, annexed to the application filed herein.
3. The application is opposed; there is a replying affidavit sworn by Anthony Safari Kitsao, grounds of opposition, and a Preliminary Objection (PO) filed by the respondent.
4. Arising from the materials and submissions by counsel Mr. Gikandi for the applicants and Mr. Ingutya for the respondents, the issues I frame for the determination of this court are whether the application is sustainable, whether to issue the orders sought, and who should bear the costs of the application.
5. Mr.Gikandi submits that, whereas this suit is pending and in total violation of the doctrine of lis pendens, the respondent has descended on the suit property and commenced building a wall around it. This wall should be brought down, and the suit should remain intact pending the hearing of this suit.
6. Besides, there is an appeal filed against the decision of this court (Olola J.) that declined to issue injunctive relief.
7. Mr. Ingutya contends that the current application represents an abuse of the court process, as similar applications have been dealt with in this suit and other suits between the parties.
8. I have reviewed the submissions by the parties and considered their litigation history. I summarized it in my judgment dated February 5, 2025, in petition No. 38 of 2021, reported as Mikaal Limited v Land Registrar Kilifi County & 2 others (Petition 38 of 2021) [2025] KEELC 445 (KLR) (5 February 2025):
On the 3rd of May 2023, this court gave an elaborate ruling on a Preliminary Objection that the 3rd respondent had raised. There were suits similar to this one, significantly Malindi ELC Petition No. 17 of 2015, formerly Mombasa HCC Petition No. 12, 13, and 14 of 2011, challenging an embargo placed on the Chembe/Kibabamshe registration Section (where the suit property falls) and ELC No. 42 of 2021, seeking injunctive orders against the 3rd respondent.
22. In paragraph 45 of the court’s ruling, it stated:
“I have perused the ruling attached in Malindi ELC No. 42 of 2021; the parties and the subject matter are the same. In the current suit, the petitioner has joined the Registrar of Lands, Mombasa, and the Attorney General. In the former suit, the petitioner had sought injunctive reliefs citing similar reasons as in this case—the Olola J’s, ruling which I have quoted above, declined to grant the orders sought, traced the root of the titles held by parties, and quoted other matters between the parties. The former suit is still pending and active. I have not been told why it has been abandoned, and the current one filed over the same subject matter and involving the same parties.
I stated that the above scenario offends the sub judice, and I add - constitutional avoidance doctrines. In his ruling in Mikaal Limited v Dawagi Investments Limited (Environment & Land Case 42 of 2021) [2022] KEELC 3385 (KLR) (28 July 2022) (Ruling) by Olola J., captured the chronology of the acquisition of each of the parties'' title documents in this manner:
“In the matter before me, both the Plaintiff and the Defendant lay claim to the suit property – Chembe/Kibabamshe/376, said to be measuring some 2.5 acres. Both Parties have produced copies of Certificates of Lease pursuant to which they lay claim to the land. I note, however, that while the Plaintiff has produced a Certificate of Lease indicating the date of registration as 30th December 1996, there was no evidence of registration of the same at the Lands Registry. I say so because the Plaintiff has neither produced a Certificate of Official Search nor a White Card or any other documentary evidence indicating the registration of the Lease in any official record.
On its part, the Defendant has produced a copy of a Title Deed dated 10th March, 2015. The Defendant has also produced several copies of Certificates of Official Searches issued over the years by the Land Registrar as proof of its registration as the proprietor of the land. The Defendant has equally availed the history of the land, indicating how the same was transferred and discharged from the Settlement Fund Trustees to its successors in title before it acquired the same through a Sale Agreement.
17. While the Plaintiff contends that its ownership of the suit property was validated by the National Land Commission through a Gazette Notice published by the Commission on 17th July 2017, it was clear to me that the Commission had since reviewed its position and that by another Gazette Notice dated 25th May 2018, the Commission did recommend that the suit property “be regularized” in favour of the Defendant.
18. Again, while the Plaintiff contended that it had been in occupation and possession of the suit property since the 1990s, I was not persuaded that the Plaintiff was being candid with the Court. From the Defendant’s Replying Affidavit, it was apparent that the Plaintiff had filed ELC Petition Nos. 12 of 2011, 13 of 2011, 14 of 2011, as well as ELC Petition No. 17 of 2015, which Petitions were later consolidated. A perusal of the pleadings in the said Petitions reveal that the Plaintiff had sought recovery orders against the Government to be availed the suit property on the ground that it had been unable to take possession and carry out development thereon because of an embargo placed against the property by the Government. In the alternative, the Plaintiff had sought recovery for compensation for the loss of use of the suit property
In its Supporting Affidavit, sworn by its director Richard Karanja in Petition No 17 of 2015, the Plaintiff states at Paragraphs 5 and 7 thereof as follows:
“5. That it is apparent that the Interested party (one Daniel Runya Gamba) has apparently sold his interest in Plot No. Chembe/ Kibabamshe/376 to Changawa Mranai Mulila and Rollingstone Jefa Mrandzi, who had apparently also sold their interest for a consideration of Kenya Shillings Fourteen Million Two Hundred Fifty Thousand (Kshs . 14,250,000/-) to Dawagi Investments Limited. The said Parties’ transactions thereon are evidenced in an Agreement of Sale dated 30th June, 2014 between the said parties. I annex a copy of the said Agreement for Sale as annexure “MJK-2”
. .7. That following the dismissal of the Petition herein, the Interested Party and his aforesaid agents have moved on to the suit property and have threatened that they will physically and forcefully remove the Petitioners therefrom with regard to Plot No. Chembe/Kibabamshe/376.”
20. Arising from the foregoing, it was apparent that the Plaintiff was aware that the Defendant had acquired an interest in the suit property as far back as the year 2014 and that it did not take any steps to restrain the Defendant from dealing with the suit property.
21. As the Court of Appeal stated in Nguruman Limited v Jan Bonde Nielsen & 2 Others (2014) eKLR:
“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive, and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion.” 22. In the circumstances herein, I was not persuaded that the Plaintiff had established a prima facie case and/or that it stood to suffer any loss irreparable or otherwise as a result of the Defendant''s alleged actions. It follows that I did not find any merit in the Motion dated 11th May, 2021. It is dismissed with costs to the Defendants.”
9. It then appears to me that we are repeatedly dealing with the same issues, which constitutes an abuse of the court process.
10. Therefore, the application filed on June 25, 2025, is dismissed with costs.
Dated, signed, and delivered electronically in Malindi on November 6, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Murage for the Plaintiff
Mr. Ingutya for the Defendant
Happy: Court Assistant
'