I. Introduction
1. Before the Honourable Court for its determination is the Notice of Motion application dated 22 nd July, 2025. It was instituted by MOHAMED SHEE MOHAMED AND 402 OTHERS, the Petitioners/Applicants herein, contemporaneously with the Petition dated 28 th May, 2025.
2. The application was based on the provisions of Articles 22(3), 40 and 162(2)(b) of the Constitution of Kenya, 2010, Sections 13 and 152 of the Land Act, No. 6 of 2012, Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
3. The matter was filed under certificate of urgency. Upon of it being certified urgent, the Honourable Court was granted interim orders ex - parte on 24 th July, 2025 restraining dealings on the suit parcels pending the inter partes hearing of the application. The said interim orders have remained in force to date.
4. Upon service, the application elicited the following responses:-
a) The 1 st Respondent opposed the Petition and the application through the filing of a Replying Affidavit sworn by BRIAN IKOL, its Director, Legal Affairs and Dispute Resolution, on 27 th October, 2025, in which it also prayed that its name be struck out of these proceedings.
b) ONESMUS MWANGI MURAGURI, who was enjoined to these proceedings as the 1 st Interested Party on 29 th September, 2025 pursuant to his Notice of Motion application filed in August 2025, filed a Replying Affidavit sworn on 30 th September, 2025 urging the discharge and/or variation of the interim orders as against his parcel of land known as Kwale/Shimoni/422.
c) HUMPHREY DAVID KAMAWE NUGI, who was joined as the 2 nd Interested Party pursuant to his application dated 24 th September, 2025, opposed the application and urged the discharge of the said orders as against his parcel of land known as Kwale/Shimoni/36.
5. The contents of the said responses will be expounded on later in this ruling.
II. The case by the Petitioners/Applicants
6. The Applicants sought for the following orders:-
a. Spent.
i. That pending the hearing and determination of this Petition, a temporary injunction be issued restraining the Respondents, their agents, employees, or any person claiming through them from: -
ii. Transferring, leasing, charging, subdividing, disposing of, or in any way dealing with the following land parcels (but are not limited to): Kwale/Shimoni Village Squatter Scheme/30, /35, /18, /17, /1028, /263, /780; Settlement Scheme Plots Nos. 470, 769, and all plots listed in Sheet 2, Sheet 3, and Sheet 4 annexed to the Petition; • Leasehold Lands LR Nos. 1084, 5030, 1082.
iii. Carrying out any construction, excavation, or development on the said parcels.
iv. Evicting, harassing, or interfering with the Petitioners' peaceful occupation of the suit lands.
b. THAT the Officer Commanding Station (OCS), Shimoni Police Station, ensure compliance with Orders above.
c. THAT costs of this Application be provided for.
d. Such further and/or other orders be granted as the court may deem fit and expedient.
7. The application was premised on the grounds, testimonial facts and the averments made out under the Supporting Affidavit sworn on 22 nd July, 2025 by MOHAMED SHEE MOHAMED. The deponent averred as follows that: -
a) He was the 1 st Petitioner herein, who swore the affidavit on his own behalf and on behalf of all the other Petitioners in support of the prayers sought therein
b) The Petitioners were 403 indigenous residents of Shimoni Sub-Location, the County of Kwale, who had brought the Petition to challenge the unlawful, irregular and discriminatory allocation of their ancestral community land under the Shimoni Village Squatter Settlement Scheme.
c) Between the years 1991 and 1993, the Government of Kenya initiated the said Scheme, being a Land Adjudication and Settlement scheme allocation exercise aimed at settling squatters and long-term residents, and a community verification committee was established to oversee the fair identification of the genuine beneficiaries. However, the said mandate was never brought to a proper conclusion.
d) Subsequently, the process was frustrated and compromised in that many indigenous residents were deliberately and unfairly excluded, while titles were irregularly issued to individuals with no presence in, or connection to, the County of Kwale.
e) Some parcels were fraudulently titled to absentee landlords while the actual long-term residents were denied titles, and multiple instances of double allocation and issuance of title deeds to non-existent or unknown persons had led to ongoing conflicts.
f) The annexures marked as “MSM - 2”, “MSM - 3” and “MSM - 4” provided extensive documentation of the said irregularities, including copies of titles issued to genuine community members, letters of complaint to the National Land Commission and the Governor of the County of Kwale spanning several years, and a letter from the Ministry of Lands dated 17 th June, 2013 directing the investigation of the complaints of the residents.
g) The Petition was premised on the violation of Articles 10, 40, 47 and 60(1)(a) of the Constitution of Kenya, 2010.
h) The interim injunction was sought and obtained to prevent the further dissipation of the suit properties and to protect the Petitioners from imminent eviction, failing which the Petitioners, being over 403 families in long-standing occupation, would be rendered homeless and landless and the substratum of the Petition destroyed.
8. In the main Petition, the Petitioners sought, inter alia: a declaration that the allocation and issuance of the Letters of Allotment to non-indigenous persons was unlawful, discriminatory and unconstitutional; an order cancelling the fraudulent or irregularly issued title deeds listed therein; an order directing the 1 st and 2 nd Respondents to conduct a free, transparent and participatory verification and allocation process; an injunction restraining any developments, transfers or dealings on the disputed parcels pending the determination of the Petition; and any other relief the Honourable Court would deem just and expedient in the circumstances.
III. The response by the 1 st Respondent
9. As already indicated, the 1 st Respondent responded through the filing of a Replying Affidavit dated on 27 th October, 2025 and sworn by its Director, Legal Affairs and Dispute Resolution, one BRIAN IKOL. He averred as follows that: -
a) The 1 st Respondent was a constitutional Commission established under the provision of Article 67 of the Constitution of Kenya, 2010 in the year 2012 and could therefore not have been involved in the alleged actions of the years 1991 to 1993.
b) It denied any and all allegations of wrongdoing, liability or constitutional violation as pleaded against it, and contended that it was not a proper party to the suit.
c) The entire factual basis of the Petition related to the execution of the Shimoni Village Squatter Settlement Scheme, a function falling squarely under the Settlement Fund Trustees and the Department of Settlement, which were departments within the 2 nd Respondent's Ministry.
d) The Commission held no records, documents or information regarding the beneficiary list, the allocation criteria, or the specific titles cited by the Petitioners, as all such information was and had always been under the custody and control of the 2nd Respondent, who together with the 4 th Respondent were the proper parties to respond to the specific particulars of grievance.
e) The Commission's only interaction with the Petitioners was limited to their inquiry dated 20 th September, 2021 regarding the filing of a historical land injustice claim out of time.
f) The Historical Land Injustice framework had since been renewed for a period of five (5) years upon the signing into law of the National Land Commission (Amendment) Bill, 2023 in October, 2025, and the Commission was in the process of preparing a nationwide call for fresh applications for the investigation of historical land injustices as provided for under the National Land Commission Act.
g) The Honourable Court was therefore urged to strike out the name of the 1 st Respondent from the Petition with costs; in the alternative, to dismiss the Petition as against the 1 st Respondent with costs; or, further in the alternative, to stay these proceedings and refer the Petitioners to pursue their claim through the mechanisms provided under the Historical Land Injustice framework.
IV. The response by the 1 st Interested Party
10. The 1 st Interested Party opposed the application through the filing of his Replying Affidavit sworn on 30 th September, 2025. The Deponent averred as follows that:-
a) He was the Interested Party duly joined as such on 29 th September, 2025 and was competent to swear the affidavit. He had read the Petition filed in this court and the injunction order granted on 24 th July, 2025, which order affected all the parcels on Sheet 4 of the map of the Kwale/Shimoni Settlement Scheme.
b) He was the registered owner of all that parcel of land known as Kwale/Shimoni/422, measuring approximately 2.1 Hectares, which parcel fell within the said Sheet 4 and was therefore affected by the order. He annexed copies of his Title Deed issued on 9 th August, 2010 and a Certificate of Official Search showing him as the absolute proprietor with no inhibitions, cautions, restrictions or encumbrances registered against the title.
c) The said parcel was advertised for sale by Public Auction in the local edition of “The Standard” Newspaper of 15 th December, 2009, whereupon he proceeded to conduct due diligence at the Kwale Lands Office and discovered that the land initially belonged to the Settlement Fund Trustees;
d) It was allocated to an indigenous local person, namely SHEE HAMISI MWAMWINDI; that the said allottee sold and transferred the land to United Insurance Company Limited on 30 th April, 1998; There was a Prohibitory Order issued vide Migori Principal Magistrate's Court Civil Case No. 560 of 2002 to satisfy a monetary decree issued against United Insurance Company, the then registered owner.
e) Having satisfied himself, he decided to bid for the property, and at an auction held on 29 th December, 2009 conducted by Pave Auctioneers, he bid for and purchased the property as the highest bidder.
f) A Certificate of Sale of Land was issued to him on 26 th April, 2010 by the Senior Resident Magistrate, Migori, together with a Vesting Order issued on the same day, and the land was thereafter transferred to his name by a transfer dated 3 rd August, 2010 executed by the Executive Officer of the Migori Law Courts and registered on 9 th August, 2010, whereupon his Title Deed issued. He annexed the certified Green Card showing the entire history of the parcel.
g) He was desirous of developing his land and the injunctive order was oppressive and unjust to him, and the same ought to be vacated as against his parcel.
VII. The response by the 2 nd Interested Party
11. The 2 nd Interested Party swore an Affidavit where they deponed that:-
a) His case concerned the parcel of land known as Kwale/Shimoni/36, measuring approximately 1.8 Hectares, identified in the registry map Sheet No. 2.
b) It was listed in the Petition under the particulars of grievance. He gave the history of how he acquired his title, and contended that he had blissfully enjoyed all the rights appertaining to it, including an uninterrupted occupation.
c) The said occupation was until he discovered the existence of this Petition.
d) Thereupon he duly instructed his Advocates to take over the conduct of the matter on his behalf.
e) He contended that the only reason he had been forced to defend his land was that he was denied access to it by the local administration acting at the behest of the Petitioners.
V. Submissions
12. While all the parties were in Court, they were directed to dispose off the application by way of written submissions.
13. Some of them complied. Pursuant to that the Honourable Court reserved a date for the delivery of the Ruling accordingly.
A. The Written Submissions by the Petitioners/Applicants
14. Through the law firm of Messrs. Akanga Matende & Company Advocates, the Petitioners filed their Written Submissions dated 30 th March, 2026. Mr. Matende The Learned Counsel commenced the submissions by providing the Honourable Court with a brief background of the matter, and submitted that the core argument of the Petitioners was that if the root of a title was vitiated by illegality, fraud or a violation of the Constitution, then any subsequent acquisition, no matter how regular it may appear on the surface, is a nullity and could not stand.
15. In the process of submission, the Learned Counsel invoked the maxim “ nemo dat quod non habet ” — no one could give what they did not have — and submitted that if the original allocation to the first allottee (and, in the 1 st Interested Party's case, the subsequent transfer to United Insurance Company) was void for want of public participation, due process and compliance with the Constitution, then the subsequent purchasers could not acquire a valid title regardless of the procedure they followed, the title having been infected with illegality from its very inception.
16. The Learned Counsel placed reliance on the decision of the Court of Appeal in the case of: “ Munyu Maina – Versus - Hiram Gathiha Maina, Civil Appeal No. 239 of 2009 [2013] eKLR ” , where the Court stated as follows: -
“We state that when a registered proprietor's root of title is challenged, it is not enough for the proprietor to dangle the title deed as proof of ownership. He must go beyond the title and show that the title was lawfully and regularly acquired.”
17. Similarly, the Learned Counsel relied on the case of: “ Arun C. Sharma – Versus - Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR”, where the Court of Appeal reiterated that a title can be impeached if it is proved that it was obtained illegally, unprocedurally or through a corrupt scheme.
18. On the threshold for the grant of the orders sought, the Learned Counsel submitted that the Petitioners had decisively met all the three limbs set out in the case of: “ Giella – Versus - Cassman Brown & Co. Limited [1973] EA 358 ”, in that: the Supporting Affidavit and the annexures thereto established “ a prima facie case” within the meaning ascribed in the case of: “ Mrao Limited – Versus - First American Bank of Kenya Limited & 2 Others [2003] KLR 125 ”; the Petitioners faced the imminent threat of eviction from the only land they had known for generations, being a loss of their ancestral home, cultural heritage and constitutional right to property which could not be compensated by an award of damages, in line with the holding in the case of: “ Paul Gitonga Wanjau – Versus - Gathuthi Tea Factory Co. Limited & 2 Others [2016] eKLR ” ; and the balance of convenience lay squarely with preserving the status quo, as the Petitioners were in current, long-standing occupation of the land, whereas the Interested Parties, if ultimately successful, could be compensated for any loss by an award of damages or the injunction lifted.
19. The Learned Counsel further submitted that the Interested Parties' root of title, which they claimed to be lawful, was precisely the subject matter of the main Petition, and that to discharge the injunction against them at this interlocutory stage would be to pre-judge the main issue in dispute — the legality of the entire allocation scheme — and would allow them to develop or alienate the land, thereby potentially rendering any final orders of this Honourable Court nugatory.
20. Finally, the Honourable Court was urged to dismiss the Interested Parties' applications with costs, to confirm the interim orders issued on 24 th July, 2025 pending the hearing and determination of the main Petition, and to award the Petitioners the costs of the application and of the responses thereto.
B. The Written Submissions by the 1 st Interested Party
21. Through the law firm of Messrs. Muraguri & Muraguri Advocates, the 1 st Interested Party filed submissions in support of his application. Mr. Muraguri Advocate urged the Honourable Court to find that the 1 st Interested Party, having demonstrated through a complete documentary chain that he acquired the parcel Kwale/Shimoni/422 through a lawful court-sanctioned process. That the parcel was sold at a public auction to satisfy a Decree against the previous registered owner, United Insurance Company. That the said parcel was originally allocated to an indigenous local person, Shee Hamisi Mwamwindi. The said legal owner was entitled to the discharge of the injunction as against his parcel.
22. In that case, the Court should find that the Petitioners had not established a prima facie case with a probability of success as against him.
C. The Written Submissions by the 2 nd Interested Party
23. While opposing the application, the 2 nd Interested Party, through the law firm of Messrs. Mwaniki Gitau & Company Advocates, filed his Written Submissions dated 12 th , May, 2026. The Learned Counsel submitted that the principles for granting an injunction were well established in the case of: “ Giella – Versus - Cassman Brown & Co. Limited (Supra) ” , and that the Petition's cause of action was founded solely on a generalised claim against all the plots listed in Sheets 2, 3 and 4 annexed to the Petition, with no grounds set out to actualise a claim capable of being defended as pertains to the parcel in issue.
24. The Learned Counsel submitted that the evidence presented showed that the District Land Adjudication and Settlement Office in Kwale, through a letter dated 13 th April, 1994, directed the Director of Land Adjudication and Settlement to effect the transfer of the parcel from the seller, SERIKALI HUSSEIN HASSAN, to the 2nd Interested Party; that the Land Control Board consent was granted by the Msambweni Land Control Board on 10 th June, 1992; that a scrutiny of the Petition and the authority to sign the pleadings did not disclose the name of the said vendor or his representative as being among the aggrieved; and that the vendor received the total purchase consideration and duly appended his signature to the Ministry of Lands and Housing transfer forms without any demurrer.
25. The Learned Counsel placed reliance on the case of:- “ Republic – Versus - National Land Commission, Cabinet Secretary Ministry of Lands & Housing Physical Planning & Urban Development, Attorney General & County Government of Kwale Ex - Parte; Diani Scheme Resource Centre [2021] KEELC 4317 (KLR) ” , where the Court stated that applicants were under a duty to ensure that all persons who are likely to be affected by the orders sought are enjoined in the proceedings in order to be afforded an opportunity of being heard before any decision is taken. The Counsel further relied on the celebrated case of: “ Anarita Karimi Njeru – Versus - Republic [1979] KEHC 30 (KLR); [1979] KLR 154 ” , where it was long established that:-
“…if a person is seeking redress from the high court on a matter which involves a reference to the constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
26. For the above reasons, the Honourable Court was urged to dismiss the application for injunction and the Petition in limine.
VI. Analysis and determination
27. I have carefully read and considered the Notice of Motion application dated 22 nd July, 2025, the Constitutional Petition filed contemporaneously therewith, the Supporting Affidavit together with the annextures thereto, the Replying Affidavits filed by the 1 st Respondent and the Interested Parties, the rival written submissions by Learned Counsel, the authorities relied upon, and the applicable provisions of the Constitution of Kenya, 2010, the Land Registration Act, No. 3 of 2012, the Land Act, No. 6 of 2012, the National Land Commission Act, No. 5 of 2012, the Environment and Land Court Act, No. 19 of 2011 and all other relevant statutory provisions.
28. In order to arrive at an informed, fair, just and legally sound determination, this Honourable Court has framed the following five (5) issues for determination:-
a. Whether the Notice of Motion application dated 22 nd July, 2025 has merit.
b. Whether the Petitioners have established a basis for the grant of conservatory and interlocutory injunctive orders pending the hearing and determination of the Petition.
c. Whether the applications by the 1st and 2nd Interested Parties seeking discharge and/or variation of the interim orders are merited.
d. Whether the 1st Respondent's name should be struck out of these proceedings at this stage; and
e. Who should bear the costs of the application.
ISSUE No. a) Whether the Notice of Motion application dated 22 nd July, 2025 has merit.
29. Under this sub-heading, the Honourable Court shall examine the legal foundation upon which the Petitioners seek the preservation of the disputed parcels of land pending the hearing and determination of the Constitutional Petition. The principal relief sought is the grant of conservatory and interlocutory injunctive orders restraining any transfer, alienation, subdivision, charge, lease, development or any dealings whatsoever in respect of the parcels forming part of the Shimoni Village Squatter Settlement Scheme.
30. Before determining whether such relief ought to issue, it is necessary to appreciate the legal principles governing preservatory orders. The jurisprudence of our superior courts has consistently emphasized that the purpose of interlocutory relief is neither to determine ownership nor to confer final rights upon any party. Rather, its object is to preserve the subject matter of litigation so that the Court's eventual judgment is not rendered nugatory.
31. The Black’s Law Dictionary, Butter Worth’s 9 th Edition, defines “ Status Quo” simply as a Latin word which means ‘the situation as it exists’ . The purpose of an order of status quo has been reiterated in a number of decisions. This Court has occasionally deliberated on this issue expansively. For instance, it addressed it in the following cases as cited in “ Fatuma Abdi Jillo – Versus - Kuro Lengesen & another [2021] eKLR”;
32. In the case of: “Republic – Versus - National Environment Tribunal, Ex - Parte Palm Homes Limited & another [2013] e KLR” , Odunga J. on the subject matter stated as follows:-
“When a court of law orders or a statute ordains that the status quo be maintained, it is expected that the circumstances as at the time when the order is made or the statute takes effect must be maintained. An order maintaining status quo is meant to preserve existing state of affairs...Status quo must therefore be interpreted with respect to existing factual scenario..."
33. While in he case of:- “ Kenya Airline Pilots Association (KALPA) – Versus - Co-operative Bank of Kenya Limited & another [2020] eKLR” , the purpose of a status quo order was explained as follows: -
“By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.”
34. Justice Bashaija Andrew in the Ugandan case of: “ Makerere University – Versus - Omumbejja Namusisi Farida Naluwembe Namirembe Bwanga IICMA NO. 658 OF 2013” , defined the term “Status Quo” to mean; the existing state of affairs existing before a given particular point in time. In case of land, status quo is purely a question of fact, and the relevant consideration is the point in time at which the acts complained of as affecting or likely to affect or threatening to affect the existing state of things occurred.
35. Thus, unlike ordinary injunctions founded purely on equitable principles, conservatory orders issued within constitutional litigation derive their legitimacy from the Constitution itself. Their primary purpose is to preserve constitutional rights, uphold the rule of law and ensure that the Court's eventual decision is not rendered merely academic.
36. In the instant Petition, the Petitioners allege that the Government's implementation of the Shimoni Village Squatter Settlement Scheme resulted in the unlawful exclusion of genuine indigenous residents while land was allegedly allocated to persons who did not qualify as beneficiaries. They further allege widespread constitutional violations involving Articles 10, 40, 47 and 60 of the Constitution.
37. These allegations are neither idle nor speculative. They raise fundamental constitutional questions touching on historical land injustice, administration of public land, constitutional protection of community rights and the legality of title acquisition under a Government settlement programme.
38. At this interlocutory stage, the Court is not called upon to determine whether those allegations have been proved. Rather, the Court must determine whether the Petition discloses sufficiently weighty constitutional issues deserving preservation pending full hearing.
39. The material placed before the Court demonstrates that the Petitioners have exhibited numerous documents, correspondence and historical records alleging irregular implementation of the settlement scheme and persistent complaints made to various Government agencies over several years. Whether those documents ultimately establish the Petitioners' case is a matter reserved for trial. Nevertheless, they disclose a dispute that cannot be dismissed as frivolous.
40. The Court is equally mindful that the Petition concerns hundreds of Petitioners and numerous parcels of land. It therefore transcends an ordinary ownership dispute between private individuals and assumes a significant constitutional and public law dimension.
41. The Court has also considered the rival position advanced by the Interested Parties. The 1 st Interested Party maintains that he lawfully acquired Kwale/Shimoni/422 through a judicial sale conducted pursuant to execution proceedings, while the 2 nd Interested Party asserts lawful acquisition from an original allottee after obtaining the requisite statutory consents.
42. There is no doubt that both Interested Parties have presented documents evidencing registered titles. Under the provision of Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012 registration ordinarily vests absolute ownership in a registered proprietor. However, the same statute recognizes that title may be impeached where acquired through fraud, illegality, procedural impropriety or a corrupt scheme.
43. The Petitioners' case is founded precisely upon those statutory exceptions. They contend that the root of the impugned titles was itself tainted by constitutional and statutory violations. That issue cannot be conclusively resolved upon affidavit evidence alone.
44. Indeed, to pronounce upon the legality or otherwise of the Interested Parties' titles at this interlocutory stage would amount to conducting a trial before the trial itself, contrary to established judicial principle.
45. The Court therefore finds that the application raises substantial constitutional and legal issues requiring preservation of the subject matter pending the hearing of the Petition.
46. Consequently, this Court finds and holds that the Notice of Motion application dated 22 nd July, 2025 is not frivolous, vexatious or an abuse of the Court process. On the contrary, it raises serious triable constitutional issues warranting judicial investigation after a full hearing.
47. Accordingly, this Court holds that the Notice of Motion application dated 22 nd July, 2025 is prima facie meritorious. Therefore, it proceeds to consider whether the Petitioners have satisfied the legal threshold for the grant of the conservatory and interlocutory orders sought.
ISSUE No. b) Whether the Petitioners have established a basis for the grant of conservatory and interlocutory injunctive orders pending the hearing and determination of the Petition.
48. Under this sub-heading, the Honourable Court shall now endeavour to apply the foregoing legal principles to the peculiar circumstances of this case. As already stated, the principal relief sought by the Petitioners is the preservation of the numerous parcels of land comprised within the Shimoni Village Squatter Settlement Scheme pending the hearing and final determination of the Constitutional Petition.
49. The Court appreciates that although the Petitioners have described the relief sought as a temporary injunction, the proceedings herein are constitutional in nature and concern allegations of historical land injustice, unlawful allocation of public land, violation of community land rights and infringement of various constitutional guarantees. Consequently, the Court must consider both the principles governing interlocutory injunctions in ordinary civil proceedings and those applicable to conservatory orders in constitutional litigation.
50. The law regarding grant of interlocutory injunctions is found in the provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010 which provide as follows:
“Where in any suit it is proved by affidavit or otherwise:
That any property in dispute in a suit is in danger of being wasted, damaged or aliena
[...truncated]
1. Before the Honourable Court for its determination is the Notice of Motion application dated 22 nd July, 2025. It was instituted by MOHAMED SHEE MOHAMED AND 402 OTHERS, the Petitioners/Applicants herein, contemporaneously with the Petition dated 28 th May, 2025.
2. The application was based on the provisions of Articles 22(3), 40 and 162(2)(b) of the Constitution of Kenya, 2010, Sections 13 and 152 of the Land Act, No. 6 of 2012, Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
3. The matter was filed under certificate of urgency. Upon of it being certified urgent, the Honourable Court was granted interim orders ex - parte on 24 th July, 2025 restraining dealings on the suit parcels pending the inter partes hearing of the application. The said interim orders have remained in force to date.
4. Upon service, the application elicited the following responses:-
a) The 1 st Respondent opposed the Petition and the application through the filing of a Replying Affidavit sworn by BRIAN IKOL, its Director, Legal Affairs and Dispute Resolution, on 27 th October, 2025, in which it also prayed that its name be struck out of these proceedings.
b) ONESMUS MWANGI MURAGURI, who was enjoined to these proceedings as the 1 st Interested Party on 29 th September, 2025 pursuant to his Notice of Motion application filed in August 2025, filed a Replying Affidavit sworn on 30 th September, 2025 urging the discharge and/or variation of the interim orders as against his parcel of land known as Kwale/Shimoni/422.
c) HUMPHREY DAVID KAMAWE NUGI, who was joined as the 2 nd Interested Party pursuant to his application dated 24 th September, 2025, opposed the application and urged the discharge of the said orders as against his parcel of land known as Kwale/Shimoni/36.
5. The contents of the said responses will be expounded on later in this ruling.
II. The case by the Petitioners/Applicants
6. The Applicants sought for the following orders:-
a. Spent.
i. That pending the hearing and determination of this Petition, a temporary injunction be issued restraining the Respondents, their agents, employees, or any person claiming through them from: -
ii. Transferring, leasing, charging, subdividing, disposing of, or in any way dealing with the following land parcels (but are not limited to): Kwale/Shimoni Village Squatter Scheme/30, /35, /18, /17, /1028, /263, /780; Settlement Scheme Plots Nos. 470, 769, and all plots listed in Sheet 2, Sheet 3, and Sheet 4 annexed to the Petition; • Leasehold Lands LR Nos. 1084, 5030, 1082.
iii. Carrying out any construction, excavation, or development on the said parcels.
iv. Evicting, harassing, or interfering with the Petitioners' peaceful occupation of the suit lands.
b. THAT the Officer Commanding Station (OCS), Shimoni Police Station, ensure compliance with Orders above.
c. THAT costs of this Application be provided for.
d. Such further and/or other orders be granted as the court may deem fit and expedient.
7. The application was premised on the grounds, testimonial facts and the averments made out under the Supporting Affidavit sworn on 22 nd July, 2025 by MOHAMED SHEE MOHAMED. The deponent averred as follows that: -
a) He was the 1 st Petitioner herein, who swore the affidavit on his own behalf and on behalf of all the other Petitioners in support of the prayers sought therein
b) The Petitioners were 403 indigenous residents of Shimoni Sub-Location, the County of Kwale, who had brought the Petition to challenge the unlawful, irregular and discriminatory allocation of their ancestral community land under the Shimoni Village Squatter Settlement Scheme.
c) Between the years 1991 and 1993, the Government of Kenya initiated the said Scheme, being a Land Adjudication and Settlement scheme allocation exercise aimed at settling squatters and long-term residents, and a community verification committee was established to oversee the fair identification of the genuine beneficiaries. However, the said mandate was never brought to a proper conclusion.
d) Subsequently, the process was frustrated and compromised in that many indigenous residents were deliberately and unfairly excluded, while titles were irregularly issued to individuals with no presence in, or connection to, the County of Kwale.
e) Some parcels were fraudulently titled to absentee landlords while the actual long-term residents were denied titles, and multiple instances of double allocation and issuance of title deeds to non-existent or unknown persons had led to ongoing conflicts.
f) The annexures marked as “MSM - 2”, “MSM - 3” and “MSM - 4” provided extensive documentation of the said irregularities, including copies of titles issued to genuine community members, letters of complaint to the National Land Commission and the Governor of the County of Kwale spanning several years, and a letter from the Ministry of Lands dated 17 th June, 2013 directing the investigation of the complaints of the residents.
g) The Petition was premised on the violation of Articles 10, 40, 47 and 60(1)(a) of the Constitution of Kenya, 2010.
h) The interim injunction was sought and obtained to prevent the further dissipation of the suit properties and to protect the Petitioners from imminent eviction, failing which the Petitioners, being over 403 families in long-standing occupation, would be rendered homeless and landless and the substratum of the Petition destroyed.
8. In the main Petition, the Petitioners sought, inter alia: a declaration that the allocation and issuance of the Letters of Allotment to non-indigenous persons was unlawful, discriminatory and unconstitutional; an order cancelling the fraudulent or irregularly issued title deeds listed therein; an order directing the 1 st and 2 nd Respondents to conduct a free, transparent and participatory verification and allocation process; an injunction restraining any developments, transfers or dealings on the disputed parcels pending the determination of the Petition; and any other relief the Honourable Court would deem just and expedient in the circumstances.
III. The response by the 1 st Respondent
9. As already indicated, the 1 st Respondent responded through the filing of a Replying Affidavit dated on 27 th October, 2025 and sworn by its Director, Legal Affairs and Dispute Resolution, one BRIAN IKOL. He averred as follows that: -
a) The 1 st Respondent was a constitutional Commission established under the provision of Article 67 of the Constitution of Kenya, 2010 in the year 2012 and could therefore not have been involved in the alleged actions of the years 1991 to 1993.
b) It denied any and all allegations of wrongdoing, liability or constitutional violation as pleaded against it, and contended that it was not a proper party to the suit.
c) The entire factual basis of the Petition related to the execution of the Shimoni Village Squatter Settlement Scheme, a function falling squarely under the Settlement Fund Trustees and the Department of Settlement, which were departments within the 2 nd Respondent's Ministry.
d) The Commission held no records, documents or information regarding the beneficiary list, the allocation criteria, or the specific titles cited by the Petitioners, as all such information was and had always been under the custody and control of the 2nd Respondent, who together with the 4 th Respondent were the proper parties to respond to the specific particulars of grievance.
e) The Commission's only interaction with the Petitioners was limited to their inquiry dated 20 th September, 2021 regarding the filing of a historical land injustice claim out of time.
f) The Historical Land Injustice framework had since been renewed for a period of five (5) years upon the signing into law of the National Land Commission (Amendment) Bill, 2023 in October, 2025, and the Commission was in the process of preparing a nationwide call for fresh applications for the investigation of historical land injustices as provided for under the National Land Commission Act.
g) The Honourable Court was therefore urged to strike out the name of the 1 st Respondent from the Petition with costs; in the alternative, to dismiss the Petition as against the 1 st Respondent with costs; or, further in the alternative, to stay these proceedings and refer the Petitioners to pursue their claim through the mechanisms provided under the Historical Land Injustice framework.
IV. The response by the 1 st Interested Party
10. The 1 st Interested Party opposed the application through the filing of his Replying Affidavit sworn on 30 th September, 2025. The Deponent averred as follows that:-
a) He was the Interested Party duly joined as such on 29 th September, 2025 and was competent to swear the affidavit. He had read the Petition filed in this court and the injunction order granted on 24 th July, 2025, which order affected all the parcels on Sheet 4 of the map of the Kwale/Shimoni Settlement Scheme.
b) He was the registered owner of all that parcel of land known as Kwale/Shimoni/422, measuring approximately 2.1 Hectares, which parcel fell within the said Sheet 4 and was therefore affected by the order. He annexed copies of his Title Deed issued on 9 th August, 2010 and a Certificate of Official Search showing him as the absolute proprietor with no inhibitions, cautions, restrictions or encumbrances registered against the title.
c) The said parcel was advertised for sale by Public Auction in the local edition of “The Standard” Newspaper of 15 th December, 2009, whereupon he proceeded to conduct due diligence at the Kwale Lands Office and discovered that the land initially belonged to the Settlement Fund Trustees;
d) It was allocated to an indigenous local person, namely SHEE HAMISI MWAMWINDI; that the said allottee sold and transferred the land to United Insurance Company Limited on 30 th April, 1998; There was a Prohibitory Order issued vide Migori Principal Magistrate's Court Civil Case No. 560 of 2002 to satisfy a monetary decree issued against United Insurance Company, the then registered owner.
e) Having satisfied himself, he decided to bid for the property, and at an auction held on 29 th December, 2009 conducted by Pave Auctioneers, he bid for and purchased the property as the highest bidder.
f) A Certificate of Sale of Land was issued to him on 26 th April, 2010 by the Senior Resident Magistrate, Migori, together with a Vesting Order issued on the same day, and the land was thereafter transferred to his name by a transfer dated 3 rd August, 2010 executed by the Executive Officer of the Migori Law Courts and registered on 9 th August, 2010, whereupon his Title Deed issued. He annexed the certified Green Card showing the entire history of the parcel.
g) He was desirous of developing his land and the injunctive order was oppressive and unjust to him, and the same ought to be vacated as against his parcel.
VII. The response by the 2 nd Interested Party
11. The 2 nd Interested Party swore an Affidavit where they deponed that:-
a) His case concerned the parcel of land known as Kwale/Shimoni/36, measuring approximately 1.8 Hectares, identified in the registry map Sheet No. 2.
b) It was listed in the Petition under the particulars of grievance. He gave the history of how he acquired his title, and contended that he had blissfully enjoyed all the rights appertaining to it, including an uninterrupted occupation.
c) The said occupation was until he discovered the existence of this Petition.
d) Thereupon he duly instructed his Advocates to take over the conduct of the matter on his behalf.
e) He contended that the only reason he had been forced to defend his land was that he was denied access to it by the local administration acting at the behest of the Petitioners.
V. Submissions
12. While all the parties were in Court, they were directed to dispose off the application by way of written submissions.
13. Some of them complied. Pursuant to that the Honourable Court reserved a date for the delivery of the Ruling accordingly.
A. The Written Submissions by the Petitioners/Applicants
14. Through the law firm of Messrs. Akanga Matende & Company Advocates, the Petitioners filed their Written Submissions dated 30 th March, 2026. Mr. Matende The Learned Counsel commenced the submissions by providing the Honourable Court with a brief background of the matter, and submitted that the core argument of the Petitioners was that if the root of a title was vitiated by illegality, fraud or a violation of the Constitution, then any subsequent acquisition, no matter how regular it may appear on the surface, is a nullity and could not stand.
15. In the process of submission, the Learned Counsel invoked the maxim “ nemo dat quod non habet ” — no one could give what they did not have — and submitted that if the original allocation to the first allottee (and, in the 1 st Interested Party's case, the subsequent transfer to United Insurance Company) was void for want of public participation, due process and compliance with the Constitution, then the subsequent purchasers could not acquire a valid title regardless of the procedure they followed, the title having been infected with illegality from its very inception.
16. The Learned Counsel placed reliance on the decision of the Court of Appeal in the case of: “ Munyu Maina – Versus - Hiram Gathiha Maina, Civil Appeal No. 239 of 2009 [2013] eKLR ” , where the Court stated as follows: -
“We state that when a registered proprietor's root of title is challenged, it is not enough for the proprietor to dangle the title deed as proof of ownership. He must go beyond the title and show that the title was lawfully and regularly acquired.”
17. Similarly, the Learned Counsel relied on the case of: “ Arun C. Sharma – Versus - Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR”, where the Court of Appeal reiterated that a title can be impeached if it is proved that it was obtained illegally, unprocedurally or through a corrupt scheme.
18. On the threshold for the grant of the orders sought, the Learned Counsel submitted that the Petitioners had decisively met all the three limbs set out in the case of: “ Giella – Versus - Cassman Brown & Co. Limited [1973] EA 358 ”, in that: the Supporting Affidavit and the annexures thereto established “ a prima facie case” within the meaning ascribed in the case of: “ Mrao Limited – Versus - First American Bank of Kenya Limited & 2 Others [2003] KLR 125 ”; the Petitioners faced the imminent threat of eviction from the only land they had known for generations, being a loss of their ancestral home, cultural heritage and constitutional right to property which could not be compensated by an award of damages, in line with the holding in the case of: “ Paul Gitonga Wanjau – Versus - Gathuthi Tea Factory Co. Limited & 2 Others [2016] eKLR ” ; and the balance of convenience lay squarely with preserving the status quo, as the Petitioners were in current, long-standing occupation of the land, whereas the Interested Parties, if ultimately successful, could be compensated for any loss by an award of damages or the injunction lifted.
19. The Learned Counsel further submitted that the Interested Parties' root of title, which they claimed to be lawful, was precisely the subject matter of the main Petition, and that to discharge the injunction against them at this interlocutory stage would be to pre-judge the main issue in dispute — the legality of the entire allocation scheme — and would allow them to develop or alienate the land, thereby potentially rendering any final orders of this Honourable Court nugatory.
20. Finally, the Honourable Court was urged to dismiss the Interested Parties' applications with costs, to confirm the interim orders issued on 24 th July, 2025 pending the hearing and determination of the main Petition, and to award the Petitioners the costs of the application and of the responses thereto.
B. The Written Submissions by the 1 st Interested Party
21. Through the law firm of Messrs. Muraguri & Muraguri Advocates, the 1 st Interested Party filed submissions in support of his application. Mr. Muraguri Advocate urged the Honourable Court to find that the 1 st Interested Party, having demonstrated through a complete documentary chain that he acquired the parcel Kwale/Shimoni/422 through a lawful court-sanctioned process. That the parcel was sold at a public auction to satisfy a Decree against the previous registered owner, United Insurance Company. That the said parcel was originally allocated to an indigenous local person, Shee Hamisi Mwamwindi. The said legal owner was entitled to the discharge of the injunction as against his parcel.
22. In that case, the Court should find that the Petitioners had not established a prima facie case with a probability of success as against him.
C. The Written Submissions by the 2 nd Interested Party
23. While opposing the application, the 2 nd Interested Party, through the law firm of Messrs. Mwaniki Gitau & Company Advocates, filed his Written Submissions dated 12 th , May, 2026. The Learned Counsel submitted that the principles for granting an injunction were well established in the case of: “ Giella – Versus - Cassman Brown & Co. Limited (Supra) ” , and that the Petition's cause of action was founded solely on a generalised claim against all the plots listed in Sheets 2, 3 and 4 annexed to the Petition, with no grounds set out to actualise a claim capable of being defended as pertains to the parcel in issue.
24. The Learned Counsel submitted that the evidence presented showed that the District Land Adjudication and Settlement Office in Kwale, through a letter dated 13 th April, 1994, directed the Director of Land Adjudication and Settlement to effect the transfer of the parcel from the seller, SERIKALI HUSSEIN HASSAN, to the 2nd Interested Party; that the Land Control Board consent was granted by the Msambweni Land Control Board on 10 th June, 1992; that a scrutiny of the Petition and the authority to sign the pleadings did not disclose the name of the said vendor or his representative as being among the aggrieved; and that the vendor received the total purchase consideration and duly appended his signature to the Ministry of Lands and Housing transfer forms without any demurrer.
25. The Learned Counsel placed reliance on the case of:- “ Republic – Versus - National Land Commission, Cabinet Secretary Ministry of Lands & Housing Physical Planning & Urban Development, Attorney General & County Government of Kwale Ex - Parte; Diani Scheme Resource Centre [2021] KEELC 4317 (KLR) ” , where the Court stated that applicants were under a duty to ensure that all persons who are likely to be affected by the orders sought are enjoined in the proceedings in order to be afforded an opportunity of being heard before any decision is taken. The Counsel further relied on the celebrated case of: “ Anarita Karimi Njeru – Versus - Republic [1979] KEHC 30 (KLR); [1979] KLR 154 ” , where it was long established that:-
“…if a person is seeking redress from the high court on a matter which involves a reference to the constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
26. For the above reasons, the Honourable Court was urged to dismiss the application for injunction and the Petition in limine.
VI. Analysis and determination
27. I have carefully read and considered the Notice of Motion application dated 22 nd July, 2025, the Constitutional Petition filed contemporaneously therewith, the Supporting Affidavit together with the annextures thereto, the Replying Affidavits filed by the 1 st Respondent and the Interested Parties, the rival written submissions by Learned Counsel, the authorities relied upon, and the applicable provisions of the Constitution of Kenya, 2010, the Land Registration Act, No. 3 of 2012, the Land Act, No. 6 of 2012, the National Land Commission Act, No. 5 of 2012, the Environment and Land Court Act, No. 19 of 2011 and all other relevant statutory provisions.
28. In order to arrive at an informed, fair, just and legally sound determination, this Honourable Court has framed the following five (5) issues for determination:-
a. Whether the Notice of Motion application dated 22 nd July, 2025 has merit.
b. Whether the Petitioners have established a basis for the grant of conservatory and interlocutory injunctive orders pending the hearing and determination of the Petition.
c. Whether the applications by the 1st and 2nd Interested Parties seeking discharge and/or variation of the interim orders are merited.
d. Whether the 1st Respondent's name should be struck out of these proceedings at this stage; and
e. Who should bear the costs of the application.
ISSUE No. a) Whether the Notice of Motion application dated 22 nd July, 2025 has merit.
29. Under this sub-heading, the Honourable Court shall examine the legal foundation upon which the Petitioners seek the preservation of the disputed parcels of land pending the hearing and determination of the Constitutional Petition. The principal relief sought is the grant of conservatory and interlocutory injunctive orders restraining any transfer, alienation, subdivision, charge, lease, development or any dealings whatsoever in respect of the parcels forming part of the Shimoni Village Squatter Settlement Scheme.
30. Before determining whether such relief ought to issue, it is necessary to appreciate the legal principles governing preservatory orders. The jurisprudence of our superior courts has consistently emphasized that the purpose of interlocutory relief is neither to determine ownership nor to confer final rights upon any party. Rather, its object is to preserve the subject matter of litigation so that the Court's eventual judgment is not rendered nugatory.
31. The Black’s Law Dictionary, Butter Worth’s 9 th Edition, defines “ Status Quo” simply as a Latin word which means ‘the situation as it exists’ . The purpose of an order of status quo has been reiterated in a number of decisions. This Court has occasionally deliberated on this issue expansively. For instance, it addressed it in the following cases as cited in “ Fatuma Abdi Jillo – Versus - Kuro Lengesen & another [2021] eKLR”;
32. In the case of: “Republic – Versus - National Environment Tribunal, Ex - Parte Palm Homes Limited & another [2013] e KLR” , Odunga J. on the subject matter stated as follows:-
“When a court of law orders or a statute ordains that the status quo be maintained, it is expected that the circumstances as at the time when the order is made or the statute takes effect must be maintained. An order maintaining status quo is meant to preserve existing state of affairs...Status quo must therefore be interpreted with respect to existing factual scenario..."
33. While in he case of:- “ Kenya Airline Pilots Association (KALPA) – Versus - Co-operative Bank of Kenya Limited & another [2020] eKLR” , the purpose of a status quo order was explained as follows: -
“By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.”
34. Justice Bashaija Andrew in the Ugandan case of: “ Makerere University – Versus - Omumbejja Namusisi Farida Naluwembe Namirembe Bwanga IICMA NO. 658 OF 2013” , defined the term “Status Quo” to mean; the existing state of affairs existing before a given particular point in time. In case of land, status quo is purely a question of fact, and the relevant consideration is the point in time at which the acts complained of as affecting or likely to affect or threatening to affect the existing state of things occurred.
35. Thus, unlike ordinary injunctions founded purely on equitable principles, conservatory orders issued within constitutional litigation derive their legitimacy from the Constitution itself. Their primary purpose is to preserve constitutional rights, uphold the rule of law and ensure that the Court's eventual decision is not rendered merely academic.
36. In the instant Petition, the Petitioners allege that the Government's implementation of the Shimoni Village Squatter Settlement Scheme resulted in the unlawful exclusion of genuine indigenous residents while land was allegedly allocated to persons who did not qualify as beneficiaries. They further allege widespread constitutional violations involving Articles 10, 40, 47 and 60 of the Constitution.
37. These allegations are neither idle nor speculative. They raise fundamental constitutional questions touching on historical land injustice, administration of public land, constitutional protection of community rights and the legality of title acquisition under a Government settlement programme.
38. At this interlocutory stage, the Court is not called upon to determine whether those allegations have been proved. Rather, the Court must determine whether the Petition discloses sufficiently weighty constitutional issues deserving preservation pending full hearing.
39. The material placed before the Court demonstrates that the Petitioners have exhibited numerous documents, correspondence and historical records alleging irregular implementation of the settlement scheme and persistent complaints made to various Government agencies over several years. Whether those documents ultimately establish the Petitioners' case is a matter reserved for trial. Nevertheless, they disclose a dispute that cannot be dismissed as frivolous.
40. The Court is equally mindful that the Petition concerns hundreds of Petitioners and numerous parcels of land. It therefore transcends an ordinary ownership dispute between private individuals and assumes a significant constitutional and public law dimension.
41. The Court has also considered the rival position advanced by the Interested Parties. The 1 st Interested Party maintains that he lawfully acquired Kwale/Shimoni/422 through a judicial sale conducted pursuant to execution proceedings, while the 2 nd Interested Party asserts lawful acquisition from an original allottee after obtaining the requisite statutory consents.
42. There is no doubt that both Interested Parties have presented documents evidencing registered titles. Under the provision of Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012 registration ordinarily vests absolute ownership in a registered proprietor. However, the same statute recognizes that title may be impeached where acquired through fraud, illegality, procedural impropriety or a corrupt scheme.
43. The Petitioners' case is founded precisely upon those statutory exceptions. They contend that the root of the impugned titles was itself tainted by constitutional and statutory violations. That issue cannot be conclusively resolved upon affidavit evidence alone.
44. Indeed, to pronounce upon the legality or otherwise of the Interested Parties' titles at this interlocutory stage would amount to conducting a trial before the trial itself, contrary to established judicial principle.
45. The Court therefore finds that the application raises substantial constitutional and legal issues requiring preservation of the subject matter pending the hearing of the Petition.
46. Consequently, this Court finds and holds that the Notice of Motion application dated 22 nd July, 2025 is not frivolous, vexatious or an abuse of the Court process. On the contrary, it raises serious triable constitutional issues warranting judicial investigation after a full hearing.
47. Accordingly, this Court holds that the Notice of Motion application dated 22 nd July, 2025 is prima facie meritorious. Therefore, it proceeds to consider whether the Petitioners have satisfied the legal threshold for the grant of the conservatory and interlocutory orders sought.
ISSUE No. b) Whether the Petitioners have established a basis for the grant of conservatory and interlocutory injunctive orders pending the hearing and determination of the Petition.
48. Under this sub-heading, the Honourable Court shall now endeavour to apply the foregoing legal principles to the peculiar circumstances of this case. As already stated, the principal relief sought by the Petitioners is the preservation of the numerous parcels of land comprised within the Shimoni Village Squatter Settlement Scheme pending the hearing and final determination of the Constitutional Petition.
49. The Court appreciates that although the Petitioners have described the relief sought as a temporary injunction, the proceedings herein are constitutional in nature and concern allegations of historical land injustice, unlawful allocation of public land, violation of community land rights and infringement of various constitutional guarantees. Consequently, the Court must consider both the principles governing interlocutory injunctions in ordinary civil proceedings and those applicable to conservatory orders in constitutional litigation.
50. The law regarding grant of interlocutory injunctions is found in the provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010 which provide as follows:
“Where in any suit it is proved by affidavit or otherwise:
That any property in dispute in a suit is in danger of being wasted, damaged or aliena
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