APPLICANTS CASE
1. The Plaintiffs/Applicants, Mohammed Saleh Hassan and Mahmoud Abdalla Mahmoud, moved this Court through a Notice of Motion dated 24th April 2026 seeking, inter alia, orders cancelling the Notice to Vacate served upon them on 30th March 2026 in reference to the Defendants/ Respondents Plot Numbers 1081/V/MN (CR 21702), 1080/V/MN (CR 23507), and 1511/V/MN (CR 21678) and a temporary injunction restraining the Defendant from interfering with their occupation of the suit property known as Plot No. 2799/V/MN pending the hearing and determination of the suit.
2. The Applicants contend that they are the registered proprietors of Plot No. 2799/V/MN situated at Miritini along the Mombasa–Nairobi Highway. They aver that they purchased the property from Nazir Kasim Suleiman on 30th October 2018 for a consideration of Kshs. 4,000,000.Before purchase they conducted due diligence by obtaining title deed from the vendors advocate, one Mr. Shimekha Leonard of Marende Nechesa & Company Advocates and conducted official search at the Mombasa Lands Registry. They also established that the property was part of land affected by the judgment in ELC No. 194 of 2010, through which the original parcel, Plot No. 387/V/MN. The said Plot was subdivided, with portions allocated to squatters and the remaining 30 acres awarded to title holders.
3. Further, the Applicants state that they discovered that, the property was occupied by China Road & Bridge Corporation, this prompted them to institute legal proceedings wherein they obtained orders for eviction which was executed on 24th November 2023, thereafter, they took possession and developed it and have remained in occupation ever since.
4. On 30th March 2026, the Applicants aver that they were served with a Notice to Vacate issued under Section 152E of the Land Act, which notice was issued in Triplicate referring to Plot Nos. 1081/V/MN (CR 21702), 1080/V/MN (CR 23507), and 1511/V/MN (CR 21678), by the Respondent herein.
5. Further, the applicants allege that the director of King'orani Investments Limited has instituted criminal proceedings against them with a view to arm-twist them to surrender ownership of the suit property. According to them, they are innocent purchasers for value without notice and have been in occupation of the property for over eight years. Therefore, the Respondent bears the burden of demonstrating how their titles were invalidated in ELC No. 194 of 2010.
RESPONDENTS CASE
6. In response to the application the respondent States that the applicants have not satisfied the threshold for grant of temporary injunctions. According to the Respondent they are the registered and beneficial proprietor of the suit properties. The Respondent allege that they acquired title on 1st March 1991, and has remained in peaceful, exclusive, and uninterrupted possession while undertaking various commercial activities on the land.
7. Further, the Respondent states that their proprietary rights have been infringed by Applicants whom Respondent suggests that they of fraudulently prepared and relied on forged Part Development Plans and other survey documents.
8. The Respondent contends that sometime in November 2023, the Applicants together with their agents, unlawfully entered the suit properties and forcefully evicted the Respondents caretaker after which they erected structures on the land. Following the invasion, the Respondent lodged a complaint with the Directorate of Criminal Investigations as result, Mombasa Criminal Case No. E506 of 2025 was instituted where the 1st and 2nd Applicants and others have been charged with offences relating to obtaining land registration by false pretenses and forgery and the Respondent is a witness in the pending criminal proceedings.
9. The Respondent also avers that it successfully sought the reinstatement of the original survey records from the Directorate of Survey and the same was confirmed by the Director of Survey via correspondence dated 16th January 2024. The Respondent maintains that their entries at the Lands Registry have never been cancelled or expunged and that official postal searches conducted on 20th March 2025 confirmed that they are the registered proprietor of the suit properties.
10. The Respondent disputes the authenticity of a letter allegedly issued by the Ministry of Lands dated 23rd December 2015.terming it a forgery. If anything, the purported cancellation process referred to therein could not have been completed without confirmation by the Chief Land Registrar that the affected titles had been expunged.
11. The Respondent states that the Applicants are trespassers and the Notice to Vacate were lawfully issued and the alleged registrations by the Applicants over Plot Nos. 2799 and 2715 were procured fraudulently. The respondent urges the Court to decline the injunctive orders sought as the Court cannot protect or enforce rights founded on illegality.
12. This matter came up for directions on 29th May 2026 where the parties were directed to canvass the same by way of written submissions.
APPLICANTS SUBMISSIONS
13. According to the Applicants, they have established a prima facie case with a probability of success. They have relied on the cates on Giella V Cassman Brown and maintain that the suit property was acquired lawfully through subdivision following an earlier court decision. It is their position that official records, including certificates of postal search and leasehold title documents, confirm that the Respondents' titles were cancelled and replaced with fresh subdivision titles following the court’s decision, therefore the titles relied upon by the Respondents are invalid.
14. It is the Applicants' case that the Respondents do not have valid legal interest in the property and if they had a problem, the same should have been pursued by appealing the judgment instead of relying on titles that had been cancelled. Consequently, they argue that the Respondents' continued occupation and interference with the property amounts to trespass.
15. As regards irreparable harm, the Applicants state that they face imminent eviction, which shall be borne by third parties who are tenants operating businesses on the land. They contend that eviction would occasion substantial losses, disrupt long-established businesses, affect employees and customers, and irreparably damage their goodwill and reputation. Such losses, according to them, cannot be adequately compensated by an award of damages.
16. On balance of convenience, the Applicants submit that it tilts in their favour since they possess the property, have developed it, and have existing contractual obligations with tenants. They urge the court to preserve the status quo and grant the interlocutory injunction pending the hearing and determination of the suit.
RESPONDENTS SUBMISSIONS
17. According to the Respondents, they are the registered proprietor of Plot Nos. 1080/V/MN (C.R. 23507), 1081/V/MN (C.R. 21702) and 1511/V/MN (C.R. 21678) and have been in peaceful possession and occupation of the properties since 1991.They contend that the respondents forcefully and unlawfully entered the suit properties in 2023 and forcefully, evicted the caretaker and took possession after which they erected structures thereon. Allegedly, the Applicants registration of Plot No. 2799/V/MN was fraudulently procured using forged survey documents and a falsified Part Development Plan. The same has culminated to criminal charges against the Applicants. The respondent maintains that, despite the alleged fraudulent activities, its titles have never been cancelled. It was on that basis that it issued the Notices to Vacate dated 30th March 2026 pursuant to the Land Act.
18. The issue for determination, according to the Respondent was whether the Notices to Vacate complied with sections 152E and 152F of the Land Act and whether the conditions for the grant of a temporary injunction have been satisfied by the Applicants. The Respondents’ position is that the Notices issued were lawful and the Applicants had not demonstrated any procedural irregularity or prejudice warranting their suspension or cancellation.
19. The Respondent cited the case of Giella v Cassman Brown & Co. Ltd and Nguruman Limited v Jan Bonde Nielsen & 2 Others on the issue of temporary injunction. They submit that Applicant has not established a prima facie case. It is the Respondents position that the judgments relied upon by the Applicants did not involve them and their registered titles were not cancelled. The respondent relied the case of Munyu Maina v Hiram Gathiha Maina and submitted that where title is challenged, a party must prove the legality of its acquisition and cannot merely rely on a certificate of search.
20. The Respondent maintains that they continue to enjoy the protection accorded by Article 40 of the Constitution and sections 24, 25 and 26 of the Land Registration Act, as no court has ordered their cancellation or rectification. Further by omitting to make full disclosure by omitting to disclose the pending criminal proceedings relating to the alleged fraudulent acquisition of the suit property the Applicants have not approached the Court with clean hands.
21. On irreparable harm, the Defendant argued that the Applicants had not demonstrated any loss incapable of compensation by damages. The losses alleged by the Applicant have no backing of documentary evidence.
22. Lastly, the Respondent contends that that the balance of convenience favored preserving their rights as the registered proprietor, and urged the Court to uphold the Notices to Vacate and dismiss the application with costs.
ANALYSIS AND DETERMINATION
23. I have considered the application, supporting affidavit, replying affidavit thereto. The court has discretionary to grant temporary injunction. However, the same should be exercised judiciously and on legal principles. The court in granting temporary injunctions considers the following principles;
a) Whether the applicant has demonstrated a prima facie case with a probability of success.
b) Whether the applicant is likely to suffer irreparable harm if injunction is not granted.
c) Where the balance of convenience tilts if the court is in doubt.
24. Before a temporary injunction is issued, a prima facie case has to be established in favor of the Applicant. A Prima Facie case means that a serious question is to be tried in the suit and in the event of success, if the injunction be not granted the plaintiff would suffer irreparable injury. The Applicant therefore has to satisfy court through evidence that there exists a Prima Facie case in his favor. Both the Applicants and Respondent have presented before this court certificate of postal search. This raises the issue of ownership which cannot be conclusively determined at this stage. It can only be interrogated at the hearing of the suit. For the purposes of the instant application the court finds that the Applicants have presented an arguable ownership interest which is sufficient to establish a prima facie case.
25. Irreparable injury is one that cannot be adequately compensated by way of damages. The Applicant has to demonstrate to court that he will suffer irreparable injury in the event an injunction is not granted and that there is no other remedy through which he will protect himself in the event of the injury. The court finds that since the Applicants, have established arguable proprietary interest and are facing imminent eviction, they are likely to suffer irreparably if eviction proceeds before the suit is determined.
26. The court should issue an injunction where the balance of convenience tilts in favor of the Applicants. In essence; if an injunction is not granted and the suit is ultimately decided in favor of the Applicants, the inconvenience caused to the Applicant would be greater than that which would be caused to the Respondent if an injunction is granted but the suit is ultimately dismissed. This court finds that the balance of convenience tilts in favor of the Applicants. In the event the injunction is denied and the suit eventually succeeds, especially with the impending eviction from the suit property, the Applicants stand to suffer greater prejudice. The balance of convenience therefore favors preserving the status quo pending hearing and determination of the suit.
27. The upshot of the above I do grant an order of temporary injunction barring the Defendant from interfering with the plaintiff’s occupation and use of their parcel of land known as Plot No. 2799 pending the hearing and determination of this suit.
28. Furthermore, I do grant an order, pending the hearing and determination of this suit that the Notice of eviction dated 30th March 2026 with reference to Plot Numbers Plot Nos. 1080/V/MN (C.R. 23507), 1081/V/MN (C.R. 21702) and 1511/V/MN (C.R. 21678) is suspended forthwith.
29. Costs in the cause.
1. The Plaintiffs/Applicants, Mohammed Saleh Hassan and Mahmoud Abdalla Mahmoud, moved this Court through a Notice of Motion dated 24th April 2026 seeking, inter alia, orders cancelling the Notice to Vacate served upon them on 30th March 2026 in reference to the Defendants/ Respondents Plot Numbers 1081/V/MN (CR 21702), 1080/V/MN (CR 23507), and 1511/V/MN (CR 21678) and a temporary injunction restraining the Defendant from interfering with their occupation of the suit property known as Plot No. 2799/V/MN pending the hearing and determination of the suit.
2. The Applicants contend that they are the registered proprietors of Plot No. 2799/V/MN situated at Miritini along the Mombasa–Nairobi Highway. They aver that they purchased the property from Nazir Kasim Suleiman on 30th October 2018 for a consideration of Kshs. 4,000,000.Before purchase they conducted due diligence by obtaining title deed from the vendors advocate, one Mr. Shimekha Leonard of Marende Nechesa & Company Advocates and conducted official search at the Mombasa Lands Registry. They also established that the property was part of land affected by the judgment in ELC No. 194 of 2010, through which the original parcel, Plot No. 387/V/MN. The said Plot was subdivided, with portions allocated to squatters and the remaining 30 acres awarded to title holders.
3. Further, the Applicants state that they discovered that, the property was occupied by China Road & Bridge Corporation, this prompted them to institute legal proceedings wherein they obtained orders for eviction which was executed on 24th November 2023, thereafter, they took possession and developed it and have remained in occupation ever since.
4. On 30th March 2026, the Applicants aver that they were served with a Notice to Vacate issued under Section 152E of the Land Act, which notice was issued in Triplicate referring to Plot Nos. 1081/V/MN (CR 21702), 1080/V/MN (CR 23507), and 1511/V/MN (CR 21678), by the Respondent herein.
5. Further, the applicants allege that the director of King'orani Investments Limited has instituted criminal proceedings against them with a view to arm-twist them to surrender ownership of the suit property. According to them, they are innocent purchasers for value without notice and have been in occupation of the property for over eight years. Therefore, the Respondent bears the burden of demonstrating how their titles were invalidated in ELC No. 194 of 2010.
RESPONDENTS CASE
6. In response to the application the respondent States that the applicants have not satisfied the threshold for grant of temporary injunctions. According to the Respondent they are the registered and beneficial proprietor of the suit properties. The Respondent allege that they acquired title on 1st March 1991, and has remained in peaceful, exclusive, and uninterrupted possession while undertaking various commercial activities on the land.
7. Further, the Respondent states that their proprietary rights have been infringed by Applicants whom Respondent suggests that they of fraudulently prepared and relied on forged Part Development Plans and other survey documents.
8. The Respondent contends that sometime in November 2023, the Applicants together with their agents, unlawfully entered the suit properties and forcefully evicted the Respondents caretaker after which they erected structures on the land. Following the invasion, the Respondent lodged a complaint with the Directorate of Criminal Investigations as result, Mombasa Criminal Case No. E506 of 2025 was instituted where the 1st and 2nd Applicants and others have been charged with offences relating to obtaining land registration by false pretenses and forgery and the Respondent is a witness in the pending criminal proceedings.
9. The Respondent also avers that it successfully sought the reinstatement of the original survey records from the Directorate of Survey and the same was confirmed by the Director of Survey via correspondence dated 16th January 2024. The Respondent maintains that their entries at the Lands Registry have never been cancelled or expunged and that official postal searches conducted on 20th March 2025 confirmed that they are the registered proprietor of the suit properties.
10. The Respondent disputes the authenticity of a letter allegedly issued by the Ministry of Lands dated 23rd December 2015.terming it a forgery. If anything, the purported cancellation process referred to therein could not have been completed without confirmation by the Chief Land Registrar that the affected titles had been expunged.
11. The Respondent states that the Applicants are trespassers and the Notice to Vacate were lawfully issued and the alleged registrations by the Applicants over Plot Nos. 2799 and 2715 were procured fraudulently. The respondent urges the Court to decline the injunctive orders sought as the Court cannot protect or enforce rights founded on illegality.
12. This matter came up for directions on 29th May 2026 where the parties were directed to canvass the same by way of written submissions.
APPLICANTS SUBMISSIONS
13. According to the Applicants, they have established a prima facie case with a probability of success. They have relied on the cates on Giella V Cassman Brown and maintain that the suit property was acquired lawfully through subdivision following an earlier court decision. It is their position that official records, including certificates of postal search and leasehold title documents, confirm that the Respondents' titles were cancelled and replaced with fresh subdivision titles following the court’s decision, therefore the titles relied upon by the Respondents are invalid.
14. It is the Applicants' case that the Respondents do not have valid legal interest in the property and if they had a problem, the same should have been pursued by appealing the judgment instead of relying on titles that had been cancelled. Consequently, they argue that the Respondents' continued occupation and interference with the property amounts to trespass.
15. As regards irreparable harm, the Applicants state that they face imminent eviction, which shall be borne by third parties who are tenants operating businesses on the land. They contend that eviction would occasion substantial losses, disrupt long-established businesses, affect employees and customers, and irreparably damage their goodwill and reputation. Such losses, according to them, cannot be adequately compensated by an award of damages.
16. On balance of convenience, the Applicants submit that it tilts in their favour since they possess the property, have developed it, and have existing contractual obligations with tenants. They urge the court to preserve the status quo and grant the interlocutory injunction pending the hearing and determination of the suit.
RESPONDENTS SUBMISSIONS
17. According to the Respondents, they are the registered proprietor of Plot Nos. 1080/V/MN (C.R. 23507), 1081/V/MN (C.R. 21702) and 1511/V/MN (C.R. 21678) and have been in peaceful possession and occupation of the properties since 1991.They contend that the respondents forcefully and unlawfully entered the suit properties in 2023 and forcefully, evicted the caretaker and took possession after which they erected structures thereon. Allegedly, the Applicants registration of Plot No. 2799/V/MN was fraudulently procured using forged survey documents and a falsified Part Development Plan. The same has culminated to criminal charges against the Applicants. The respondent maintains that, despite the alleged fraudulent activities, its titles have never been cancelled. It was on that basis that it issued the Notices to Vacate dated 30th March 2026 pursuant to the Land Act.
18. The issue for determination, according to the Respondent was whether the Notices to Vacate complied with sections 152E and 152F of the Land Act and whether the conditions for the grant of a temporary injunction have been satisfied by the Applicants. The Respondents’ position is that the Notices issued were lawful and the Applicants had not demonstrated any procedural irregularity or prejudice warranting their suspension or cancellation.
19. The Respondent cited the case of Giella v Cassman Brown & Co. Ltd and Nguruman Limited v Jan Bonde Nielsen & 2 Others on the issue of temporary injunction. They submit that Applicant has not established a prima facie case. It is the Respondents position that the judgments relied upon by the Applicants did not involve them and their registered titles were not cancelled. The respondent relied the case of Munyu Maina v Hiram Gathiha Maina and submitted that where title is challenged, a party must prove the legality of its acquisition and cannot merely rely on a certificate of search.
20. The Respondent maintains that they continue to enjoy the protection accorded by Article 40 of the Constitution and sections 24, 25 and 26 of the Land Registration Act, as no court has ordered their cancellation or rectification. Further by omitting to make full disclosure by omitting to disclose the pending criminal proceedings relating to the alleged fraudulent acquisition of the suit property the Applicants have not approached the Court with clean hands.
21. On irreparable harm, the Defendant argued that the Applicants had not demonstrated any loss incapable of compensation by damages. The losses alleged by the Applicant have no backing of documentary evidence.
22. Lastly, the Respondent contends that that the balance of convenience favored preserving their rights as the registered proprietor, and urged the Court to uphold the Notices to Vacate and dismiss the application with costs.
ANALYSIS AND DETERMINATION
23. I have considered the application, supporting affidavit, replying affidavit thereto. The court has discretionary to grant temporary injunction. However, the same should be exercised judiciously and on legal principles. The court in granting temporary injunctions considers the following principles;
a) Whether the applicant has demonstrated a prima facie case with a probability of success.
b) Whether the applicant is likely to suffer irreparable harm if injunction is not granted.
c) Where the balance of convenience tilts if the court is in doubt.
24. Before a temporary injunction is issued, a prima facie case has to be established in favor of the Applicant. A Prima Facie case means that a serious question is to be tried in the suit and in the event of success, if the injunction be not granted the plaintiff would suffer irreparable injury. The Applicant therefore has to satisfy court through evidence that there exists a Prima Facie case in his favor. Both the Applicants and Respondent have presented before this court certificate of postal search. This raises the issue of ownership which cannot be conclusively determined at this stage. It can only be interrogated at the hearing of the suit. For the purposes of the instant application the court finds that the Applicants have presented an arguable ownership interest which is sufficient to establish a prima facie case.
25. Irreparable injury is one that cannot be adequately compensated by way of damages. The Applicant has to demonstrate to court that he will suffer irreparable injury in the event an injunction is not granted and that there is no other remedy through which he will protect himself in the event of the injury. The court finds that since the Applicants, have established arguable proprietary interest and are facing imminent eviction, they are likely to suffer irreparably if eviction proceeds before the suit is determined.
26. The court should issue an injunction where the balance of convenience tilts in favor of the Applicants. In essence; if an injunction is not granted and the suit is ultimately decided in favor of the Applicants, the inconvenience caused to the Applicant would be greater than that which would be caused to the Respondent if an injunction is granted but the suit is ultimately dismissed. This court finds that the balance of convenience tilts in favor of the Applicants. In the event the injunction is denied and the suit eventually succeeds, especially with the impending eviction from the suit property, the Applicants stand to suffer greater prejudice. The balance of convenience therefore favors preserving the status quo pending hearing and determination of the suit.
27. The upshot of the above I do grant an order of temporary injunction barring the Defendant from interfering with the plaintiff’s occupation and use of their parcel of land known as Plot No. 2799 pending the hearing and determination of this suit.
28. Furthermore, I do grant an order, pending the hearing and determination of this suit that the Notice of eviction dated 30th March 2026 with reference to Plot Numbers Plot Nos. 1080/V/MN (C.R. 23507), 1081/V/MN (C.R. 21702) and 1511/V/MN (C.R. 21678) is suspended forthwith.
29. Costs in the cause.