SAHARE KISUPI MWACHAMBE AND OTHERS VS NEXUS HOLDINGS LIMITED AND ZIMBARA DEVELOPERS LIMITED AND 1 Others

 I.   Introduction

1.   This Honourable Court was called upon to determine the Notice of Motion application dated 25th November, 2025 filed by Sahare Kisupi Mwichambe and 549 others, the Plaintiffs/Applicants herein. It was brought under the provisions of Articles 10, 23, 28, 40, 160, and 162(2) of the Constitution of Kenya, 2010, together with Sections 1A, 1B, and 3A of the Civil Procedure Act Cap. 21, Sections 7 and 38 of the Limitation of Actions Act, Cap. 22, and Order 37 and Order 40 Rules (1) and (2) of the Civil Procedure Rules, 2010. 

2.   Equally before the Court is the Preliminary Objection dated 17th February,  2026 filed by the 1st Defendant, Nexus Holdings Limited, challenging the competence of the Originating Summons on grounds of non-compliance with the provision of Order 1 Rule 8(1) & (2) and Order 37 Rule 7(2) of the Civil Procedure Rules, 2010, variance between pleadings and affidavit evidence, and failure to identify with certainty the portion of land alleged to have been adversely possessed.

3.   In addition, the Court is seized of the Notice of Motion application dated early 17th February, 2026 by Haki Yetu Charitable Trust, the Intended Interested Party herein. They sought for joinder to the proceedings on the basis of its mandate in land rights advocacy, its direct engagement with the residents of Shimoni Settlement Scheme, and its possession of material information relevant to compliance with subsisting court orders. The Application was premised under the provision of Article 22(3)(a) of the Constitution, Rule 2, 7(1) and 19 of the Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice & Procedure Rules 2015 and all other enabling provisions of the law.

4.   Upon service of the Plaintiffs’ application, the Defendants opposed the same through the Preliminary Objection and affidavits, while the Intended Interested Party filed a detailed supporting affidavit by its Executive Director, Peter Kiama, annexing registration documents and outlining its public interest role. The parties thereafter responded comprehensively by way of written submissions filed on record.

5.   This ruling therefore addresses the merits of the Plaintiffs’ motion for injunctive relief, the Preliminary Objection raised by the 1st Defendant, and the application for joinder by Haki Yetu Charitable Trust, guided by the applicable statutory provisions and judicial precedents.

II.   The Notice of Motion application dated 25th November, 2025 by the Plaintiffs

6.   The Plaintiffs/Applicants sought the following orders: -

a.   Spent.

b.   That this Honourable Court be pleased to issue temporary orders of injunction restraining the Defendants/Respondents and their agents, employees, and or messengers from threatening, warning, interfering, and or coercing the Plaintiff/Applicants to vacate the suit premises pending the hearing and determination of this suit.

c.   That pending the hearing and determination of this case suit, this Honourable Court do issue temporary injunction restraining the Defendants/Respondents and their agents, employees, and or messengers individually and or collectively from evicting, threatening to evict, ejecting and or otherwise forcefully removing or ordering, requiring the Plaintiffs/Respondents to leave and or vacate the suit property.

d.   That an order of injunction do issue restraining and prohibiting the Defendants/Respondents from entering into the suit property for purposes of effecting a forceful eviction, removal and or forceful ejection of the Plaintiffs/Applicants from the suit property pending the hearing and determination of this suit.

e.   That pending the hearing and determination of this suit, the OCS Shímoni Police Station be directed to forthwith cease and or stop directing, summoning, or in any way whatsoever threatening, warning and or cajoling the Plaintiffs/Respondents to vacate, leave, or quit their age-old premises in the suit property.

f.   That pending the hearing ad determination of this suit, an order of injunction do issue restraining the 3rd Defendant from further effecting changes, rectifications and or any dealings, dispositions, sales, or any dealing of whatsoever nature in respect of the Parcel file, specifically Volume M1 Folio 77/1.

g.   That Costs of this Application abide in the cause. 

7.   The application by the Applicants was premised on the grounds, facts and testimony on the face of the application and further supported by the 17 Paragraphed annexed affidavit of SAHARE KISUPI MWICHAMBE, the 1st Plaintiff herein. The Affiant averred that:-

i.   He was a resident of Land Reference No. 1082 (formerly Shimoni Number 13 of A 1910) situate in Shimoni, Kwale County.

ii.   He had been authorized to swear the Affidavit in support of the Petition by the Plaintiffs/Applicants, and that the list of Plaintiffs with their particulars and identification was annexed and marked as “SK – 1”.

iii.   He had been living on the suit property from birth, on or around the year 1945.

iv.   From those years up to date, he had lived, married, raised children, invested, and made developments on a portion of the suit property measuring 20 acres.

v.   He was equally a Village Elder and thus aware of the general and overall day-to-day ongoings in the suit property which covered the entire village under his oversight.

vi.   As he grew up, he had always known the suit property as his land by virtue of inheritance from his parents, and together with his siblings and family they apportioned the same into equal portions.

vii.   After inheriting the suit property, he entered into it peaceably, without evicting, forcing, or fighting any person, and thereafter utilized the land for his own use and made investments.

viii.   After many years, sometime in the year 2025, the Defendants/Respondents began visiting the suit property and claiming ownership thereof, which came as a shock to him and the residents who had always known it as their land.

ix.   When the Defendants began asserting ownership, they threatened him, his family, friends, and the entire residents of the suit property, of whom he was the Village Elder, with eviction.

x.   On diverse dates thereafter, the Defendants/Respondents approached administrative police, the Directorate of Criminal Investigations, and other offices in a bid to reach out to him, his fellow village elders, and the residents, with the intention of evicting them from the suit property.

xi.   Owing to the impending threat of eviction, he, his family, and the residents occupying the suit property—whose details were captured in the annexed list—risked grave prejudice and thus moved the Honourable Court.

xii.   There were clear indications that the Defendants/Respondents, claiming ownership interests with undefined instruments, were intent on evicting or ejecting them from the suit property.

xiii.   If the Defendants/Respondents were not prohibited from effecting their plans, the residents risked suffering lifetime losses and damages which might never be reimbursed or corrected.

xiv.   Having been in actual possession of the suit property for over fifty years, having entered peaceably, and having made substantial developments, his occupation was uninterrupted.

xv.   He swore the Affidavit in support of the Notice of Motion application seeking the Honourable Court’s intervention to grant temporary injunctions and interim protection measures within its inherent jurisdiction to avert grave injustice and imminent risks of unquantifiable losses and prejudice likely to befall them if eviction was not restrained.

III.   The Notice of Preliminary Objection

8.   The 1st Defendant raised a 5 Paragraphed Notice of Preliminary Objection dated 17th February, 2026 through the Law firm of Messrs. Sagana, Biriq & Muganda Advocate on the grounds that:-

a)   The Originating Summons was incompetent for violating the mandatory provisions of Order 1 Rule 8(1) and (2) of the Civil Procedure Rules. The suit, though framed as one by 550 named individuals, is in substance a representative action. However, no leave of Court was sought or obtained to institute the suit in a representative capacity; and no statutory notice was issued to all persons intended to be represented. Furthermore, the purported “Authority to Act” filed by the Plaintiffs was unknown to and unsupported by the Civil Procedure Rules and could not substitute compliance with Order 1 Rule 8.

b)   The Originating Summons was fatally defective for breach of the mandatory requirements of the provision of Order 37 Rule 7 (2) of the Civil Procedure Rules, 2010 which expressly requires that an Originating Summons for adverse possession be supported by an affidavit to which a certified extract of the title to the land in question is annexed. No such certified extract of title has been annexed to the Supporting Affidavit rendering the Originating Summons incurably defective and incompetent.

c)   The Originating Summons was incompetent for failure to identify with certainty the precise portion alleged to have been adversely possessed. It was a settled principle of law that a claim for adverse possession must relate to a defined, ascertainable parcel of land. A court could not grant orders over an undefined portion of a larger tract absent of clear demarcation, acreage, boundaries, or survey identification.

d)   The Originating Summons was fatally defective and incompetent due to a material and irreconcilable variance between the Summons and the Supporting Affidavit. While the Summons prays for adverse possession over the entirety of Land Reference Number 1082, measuring approximately 320.11 acres, the Supporting Affidavit limits the claim of actual occupation to a mere 20 acres

e)   The 1st Defendant therefore prayed that the Preliminary Objection be upheld and the Plaintiff’s Originating summons dated 25th November, 2025 be struck out with costs.

IV.   The Notice of Motion application dated 17th February, 2026 by the Intended Interested Party 

9.   Vide its application, the Intended Interested Party sought out for the following Orders:-

a.   That leave is granted to Haki Yetu Charitable Trust to be admitted as an Interested Party in this case.

b.   That the intended Interested Party, apart from submitting written or oral arguments be allowed to submit any information or evidence it may deem important and relevant to the just disposition of this matter.

c.   That this Honourable Court be pleased to issue such other orders and directions as it may deem fit for the just and effectual determination of this matter.

d.   That upon grant of leave, this Honourable Court be pleased to give directions on the manner and scope of participation of the Intended Interested Party in these proceedings as the Court may deem fit and just.

e.   That costs abide the cause. 

10.   The application by the Applicants was premised on the grounds, facts and testimony on the face of the application and further supported by the 30 Paragraphed annexed affidavit of PETER KIAMA, the Executive Director of Haki Yetu Charitable Trust and the Intended Interested Party herein. The Affiant averred that: -

f)   The proposed Interested Party was registered as a Trust under the Laws of Kenya, having been registered in 2022 under the Trustees Act (Cap 167) and Trustees Perpetual Succession Act (Cap 164). Annexed was a copy of the Registration Certificate No. 328409 marked as PK - 1.

g)   Haki Yetu was an organization with expertise in land matters, human rights advocacy, governance, and public accountability.

h)   Haki Yetu’s vision was “A Society that values human rights, democracy and the rule of law”, its mission was “To promote a peaceful society that respects the rule of law, human rights and democratic governance”, and its values were Human Dignity, Integrity, Accountability, Restorative Justice, Inclusivity and Courage.

i)   Haki Yetu had a strong track record of working with marginalized communities and was dedicated to advancing human rights, promoting good governance, and advocating for the interests of marginalized communities, particularly in coastal regions, through thematic programs of Access to Justice, Democratic Governance, and Land and Urban Development.

j)   Haki Yetu was dedicated to the implementation and protection of the Constitution of Kenya, particularly the right relating to access to justice and the obligation of state actors to respect and comply with court orders in land disputes.

k)   Haki Yetu had a direct and legitimate interest in the case arising from its engagement with residents of Shimoni Settlement Scheme (LR No. 1082) who were affected by the land dispute.

l)   The legal basis for enjoining Haki Yetu as an Interested Party rested on its direct stake in the subject matter, its possession of material information relevant to the proceedings, and the need to advance constitutional principles of access to justice, fair administrative action, and protection of vulnerable persons in litigation.

m)   The subject matter of the suit concerned a long-standing land dispute affecting residents of Shimoni, involving threats of eviction, tenure insecurity, and allegations of interference with subsisting interim and status quo court orders.

n)   The dispute affected over 549 households representing an estimated population of over 3,000 residents within Shimoni Settlement Scheme, thereby raising significant public interest considerations.

o)   Following the filing of the case and issuance of court orders dated 1st December, 2025, Haki Yetu received reports from affected community members regarding intimidation, persistent summons, unwarranted home visits, pressure to record statements, and threats of arrest during the subsistence of the said court orders, raising concerns about adherence to due process and the authority of the Court.

p)   On 26th January, 2025, the Intended Interested Party convened a fact-finding and community engagement meeting with residents of Shimoni affected by the dispute, during which concerns relating to summons, investigative actions, and security of litigants were documented.

q)   On 1st February, 2026, the Intended Interested Party convened a targeted community meeting with selected litigants, during which nine affected residents swore affidavits documenting their experiences. Annexed and marked PK-2 were copies of those affidavits.

r)   According to information received from affected residents, as particularized in sworn affidavits in their possession and without making any definitive findings, the following officers were mentioned during the reported engagement:-

a.   Mr. Moses Ouma, in charge Shimoni Directorate of Criminal Investigations.

b.   Mr. Moses Okello, identified as a DCI officer during engagements with community members.

c.   Mr. Felix Nzauka, an investigator attached to the DCI Headquarters, Land Fraud Investigations Unit

d.   Mr. Adini Mgeni, Assistant Chief, Shimoni Sub-Location

e.   Mr. Bakari Cosmas, Assistant Chief, Mzizima Sub-Location and

f.   Mr. Christopher Sima Slere Deputy County Commissioner, Lungalunga Sub-County

s)   Following the receipt and documentation of the concerns raised by the affected residents, the Intended Interested Party formally engaged the Directorate of Criminal Investigations to seek an explanation and to promote adherence to due process and the subsisting court orders. Annexed and marked as PK – 3 was a copy of the Intended Interested Party’s letter dated 8th February, 2026 and received on 9th February, 2026 by the Directorate of Criminal Investigations regarding the concerns raised by the affected residents.

t)   The intended Interested Party was taken by surprise to note that the beaconing exercise commenced on 11th February, 2026 and culminated in the erection of beacons on 17th February, 2026 during the subsistence of the court orders issued herein, thereby appearing to undermine the preservation of the status quo orders granted by this Honourable court. Annexed in the affidavit and marked as PK - 4 were copies of photographic and documentary evidence relating to the said beaconing exercise including erected beacons.

u)   Some officers involved in the beaconing exercise were:

i.   Mr. Moses Ouma, in charge Shimoni Directorate of Criminal Investigations.

ii.   Mr. Felix Nzauka, an investigator attached to the DCI Headquarters, Land Fraud Investigations Unit

iii.   Mr. Adini Mgeni, Assistant Chief, Shimoni Sub-Location

iv.   Mr. Bakari Cosmas, Assistant Chief, Mzizima Sub-Location and

v.   Mr. Christopher Sima Slere Deputy County Commissioner, Lungalunga Sub-County

vi.   Sub-County Police Commander-Lungalunga Sub-County

v)   The time of swearing this Affidavit, the Intended Interested Party had received reports from affected residents that a motor vehicle without registration number plate has been observed moving within and around LR No. 1082 on several occasions, which residents have expressed concern may be connected to ongoing investigative activities and that some of the deponents and other residents have expressed fear of possible arrest following the arrest of certain community members. Annexed in the affidavit and marked as “PK – 5” were copies of photographic evidence relating to the said motor vehicle.

w)   Haki Yetu's role in this case as an Interested Party is limited to assisting the Court by placing before it information on concerns and adherence to court orders and shall not introduce new causes of action.

x)   As an agent of human rights and advocate for vulnerable communities. Haki Yetu was committed to ensuring that the principles enshrined in the Constitution are upheld and that the voices of those we represent ore heard in the pursuit of justice and accountability.

yz)   The work and the mandate of Haki Yetu was in support of the issues raised in the Petition as follows:

)   Haki Yetu was committed to promoting accountability in land governance, with particular emphasis on the protection of affected communities, lawful administrative conduct and strict compliance with Interim and status quo court orders in contested land matters such as the Shimoni land dispute.

)   Haki Yetu had information and documentation arising from its engagement with the Shimoni community which no other party was positioned to place before the Court and which was relevant to the just determination of the matter.

)   In the absence of joinder, Haki Yetu would have been unable to place before the Honourable Court the material information in its possession relating to compliance with subsisting interim and status quo orders and developments affecting litigants during the pendency of the proceedings, which would have prejudiced its mandate and impaired its ability to support access to justice.

)   The Intended Interested Party’s participation would had assisted the Honourable Court to appreciate the protection dimensions affecting long-standing settlement communities involved in active land disputes.

)   Haki Yetu’s role in the case as an Interested Party was to provide guidance to the Honourable Court and to articulate its position on the protection of litigants in active land disputes, adherence to interim and status quo court orders, fair administrative action, due process, and the consequential implications of intimidation or unlawful interference on access to justice for vulnerable communities.

)   It was on this basis that Haki Yetu sought to be joined as an Interested Party in the case.

)   Haki Yetu did not wish to delay the proceedings and would abide by the timelines set in the Court’s directions.

)   Haki Yetu requested the Honourable Court to grant an order enjoining it as an Interested Party in the proceedings, noting that its involvement was not merely a matter of procedural formality but was intended to assist the Court by providing relevant public-interest information on community security concerns, compliance with court orders, and adherence to due process in the resolution of the Shimoni land dispute.

)   The application ought to have been granted so that the Honourable Court could benefit from the Intended Interested Party’s experience and insights on community protection, adherence to interim and status quo court orders, fair administrative action, and due process in the context of the Shimoni land dispute.

V.   Replying Affidavit by the 1st Defendant

11.   The 1st Defendant responded to the Notice of Motion application dated 25th November, 2025 and 17th February, 2026 through a 59 paragraphed Replying Affidavit sworn by ERIC KIVUVA, the Director of the 1st Defendant herein on 9th April, 2026 wherein the Affiant deponed as follows:-

a.   The Affiant stated that the facts deponed to therein were derived partly from his own knowledge acquired in that capacity, partly from official records in the possession of the 1st Defendant, and partly from information received from their Advocates on record, which information he verily believed to be true.

b.   He had read and understood the Plaintiffs’ Notice of Motion dated 25th November, 2025 and the Supporting Affidavit sworn by Sahare Kisupi Mwichambe on even date. He had also read and perused the Notice of Motion application and the Supporting Affidavit of Peter Kiama dated 17th February, 2026, and swore the Affidavit in categorical opposition to the two applications.

On the Notice of Motion application dated 17th February, 2026

c.   The Affiant deponed that he was advised by Counsel on record, which advice he verily believed to be true, that joinder as an Interested Party was not a right but a matter of judicial discretion, to be exercised sparingly and strictly within the parameters settled by the Supreme Court in “Francis Karioki Muruatetu & Another – Versus - Republic & 5 Others” and “Trusted Society of Human Rights Alliance – Versus - Mumo Matemu (2014) eKLR”.

d.   The Intended Interested Party had wholly failed to meet the threshold for joinder.

e.   The suit concerned a narrow and well‑defined proprietary question, namely whether the Plaintiffs had satisfied the legal threshold for acquisition of title by adverse possession over L.R. No. 1082. The Intended Interested Party had not demonstrated any proprietary, possessory, or legally enforceable interest in the suit property, as it neither claimed ownership nor occupation, nor sought any relief capable of crystallizing into a recognizable legal right over the suit land.

f.   From a review of the averments in the application, the asserted mandate as a human rights trust was general, diffuse, and peripheral, and did not constitute the direct and proximate stake required to warrant joinder.

g.   In the premises, the Intended Interested Party was a stranger to the core dispute and lacked the legal standing necessary to participate in the proceedings.

h.   He was advised by Counsel that an Interested Party could not introduce new causes of action or reframe the dispute beyond the pleadings of the principal parties. A careful reading of the application revealed an attempt to introduce extraneous matters relating to alleged conduct of investigative and administrative bodies.

i.   Such matters fell outside the scope of the present suit and were wholly unrelated to the determination of rights accruing under adverse possession. Permitting such joinder would improperly expand the scope of the proceedings and divert the Court from the real issues in controversy.

j.   If the Intended Interested Party was aggrieved by alleged violations of constitutional or administrative rights, the appropriate recourse lay in instituting separate proceedings before a competent constitutional forum.

k.   No distinct or specialized contribution had been demonstrated that would aid the Court beyond what was already before it.

l.   The intended joinder was therefore duplicative, unnecessary, and added no probative value to the proceedings.

m.   The Intended Interested Party would suffer no legal prejudice whatsoever if the application was declined. Its general advocacy mandate remained intact and was not contingent upon participation in the suit. On the contrary, the 1st Defendant stood to suffer substantial prejudice through unwarranted delay in determination of the suit, escalation of costs, and dilution and obfuscation of the real issues for determination.

n.   He was advised by Counsel, which advice he verily believed to be sound, that the application was speculative, misconceived, and an abuse of the process of the Honourable Court. It was a calculated attempt to convert a private land dispute into a generalized public interest platform, contrary to settled principles governing joinder.

o.   He was also advised by the 1st Defendant’s Counsel on record that Courts had cautioned against such expansion of proceedings in matters not instituted as public interest litigation.

p.   Owing to the above, he prayed that the Honourable Court dismiss the Intended Interested Party’s motion dated 17th February, 2026 with costs to the 1st Defendant.

q.   The Intended Interested Party had wholly failed to meet the threshold for joinder.

r.   The suit concerned a narrow and well‑defined proprietary question, namely whether the Plaintiffs had satisfied the legal threshold for acquisition of title by adverse possession over L.R. No. 1082. The Intended Interested Party had not demonstrated any proprietary, possessory, or legally enforceable interest in the suit property, as it neither claimed ownership nor occupation, nor sought any relief capable of crystallizing into a recognizable legal right over the suit land.

s.   From a review of the averments in the application, the asserted mandate as a human rights trust was general, diffuse, and peripheral, and did not constitute the direct and proximate stake required to warrant joinder.

t.   In the premises, the Intended Interested Party was a stranger to the core dispute and lacked the legal standing necessary to participate in the proceedings.

u.   He was advised by Counsel that an Interested Party could not introduce new causes of action or reframe the dispute beyond the pleadings of the principal parties. A careful reading of the application revealed an attempt to introduce extraneous matters relating to alleged conduct of investigative and administrative bodies.

v.   Such matters fell outside the scope of the present suit and were wholly unrelated to the determination of rights accruing under adverse possession. Permitting such joinder would improperly expand the scope of the proceedings and divert the Court from the real issues in controversy.

w.   If the Intended Interested Party was aggrieved by alleged violations of constitutional or administrative rights, the appropriate recourse lay in instituting separate proceedings before a competent constitutional forum.

x.   No distinct or specialized contribution had been demonstrated that would aid the Court beyond what was already before it.

yz.   The intended joinder was therefore duplicative, unnecessary, and added no probative value to the proceedings.

.   The Intended Interested Party would suffer no legal prejudice whatsoever if the application was declined. Its general advocacy mandate remained intact and was not contingent upon participation in the suit. On the contrary, the 1st Defendant stood to suffer substantial prejudice through unwarranted delay in determination of the suit, escalation of costs, and dilution and obfuscation of the real issues for determination.

.   The application was speculative, misconceived, and an abuse of the process of the Honourable Court. It was a calculated attempt to convert a private land dispute into a generalized public interest platform, contrary to settled principles governing joinder.

.   He was also advised by the 1st Defendant’s Counsel on record that Courts had cautioned against such expansion of proceedings in matters not instituted as public interest litigation.

.   He prayed that the Honourable Court dismiss the Intended Interested Party’s motion dated 17th February, 2026 with costs to the 1st Defendant.

 

On the Notice of Motion dated 25th November, 2025

.   The Affiant deponed that he reiterated the contents of the 1st Defendant’s Notice of Preliminary Objection dated 17th February, 2026 in response to the motion and urged the Honourable Court to uphold the grounds therein and dismiss both the application and the Originating Summons in limine.

.   Without prejudice to the foregoing, and having carefully reviewed the Notice of Motion and the Supporting Affidavit, it was apparent that the application was not a neutral request for preservation of the subject matter. Rather, it was an attempt to secure, through interlocutory orders, what the Applicants were required to strictly prove at trial, namely entitlement to the suit property by way of adverse possession.

.   In effect, the Applicants sought to restrain the 1st Defendant, the registered proprietor, from accessing and utilizing its own land, thereby conferring upon themselves de facto possession at an interim stage. Such orders would not preserve the status quo; they would fundamentally alter it.

.   He was advised by his Advocates, which advice he verily believed to be true, that the Plaintiffs were effectively asking the Honourable Court to validate their occupancy, if any, and quiet the title of the registered owner before a single piece of evidence had been tested in a full trial. If granted, those orders would not preserve the status quo; they would fundamentally alter the proprietary landscape by handing the Applicants a pre‑emptive win that they could not legally sustain under the Limitation of Actions Act.

No Prima Facie Case

.   The Affiant averred that at the outset, he questioned whether there was a competent and identifiable body of claimants before the Honourable Court. The suit was presented as one brought on behalf of 550 individuals; however, beyond a bare list of names, no verifiable material had been placed before Court to establish the identity, existence, or connection of those persons to the suit property.

.   The Affiant deponed that he was advised by his Advocates, which advice he verily believed to be true, that the purported representative suit was incompetent ab initio for several reasons:

i.   No national identification numbers were provided for the 549 individuals, making it impossible to verify if they were actual persons or fictitious names.

ii.   No signatures, thumbprints, or individual affidavits were provided. The Court was essentially being asked to grant extraordinary injunctive relief to an anonymous crowd.

iii.   No evidence linked the listed names to any actual physical occupation of the suit property.

.   A claim for adverse possession was inherently factspecific and personal to each claimant, requiring proof of exclusive, continuous, and hostile physical control over a defined portion of land. Such a right could not be sustained on the basis of anonymous or unverified persons who had failed to demonstrate their own individual animus possidendi.

.   The Affiant deponed that without proper identification, the 1st Plaintiff had failed to prove he had the legal mandate or authority to act for the individuals under Order 1 Rule 8 of the Civil Procedure Rules, 2010. By failing to provide individual proof of possession for twelve continuous years, the Applicants had failed to establish a prima facie case for any of the 549 members of the purported group.

.   In the circumstances, he invited the Honourable Court to find that the application was frivolous and vexatious, as it sought to protect the alleged rights of non‑identifiable persons, constituting a gross abuse of the court process.

.   Even if the issue of identification were overlooked, the Applicants had not placed before Court any cogent evidence of possession. There was no material demonstrating when the alleged occupation commenced, the nature of such occupation, or the specific acts undertaken on the land.

.   The Affiant deponed that, on the contrary, available records and prior proceedings suggested that the alleged occupation was recent and inconsistent. In prior litigation, including ELC Case No. 14 of 2021, it was testified that the suit property was unoccupied as at 2017. Further, the 1st Plaintiff himself admitted under oath that his entry and that of others onto the suit property occurred after that period.

.   The Affiant averred that these facts, which remained uncontroverted, were irreconcilable with the present assertion of long, continuous possession extending over decades. A claim internally inconsistent on duration could not found a prima facie case.

.   The Affiant deponed that he further brought to the attention of the Honourable Court that the Applicants were engaging in a calculated attempt to harass registered owners of different land parcels using a recycled, inconsistent narrative, as analyzed in the predatory litigation and factual inconsistencies between the averments made by the Plaintiffs in ELC Case No. 14 of 2021, related National Land Commission proceedings, and the Originating Summons filed herein. He invited the Court to take judicial notice of “ELC Case No. 14 of 2021 (Kiruwa & another – Versus - Weindaba & 7 others)”, where the 1st Plaintiff was the 2nd Defendant, and where he swore an affidavit and testified under oath to facts diametrically opposed to his current averments. Annexed and marked “EK‑1” was a copy of the Judgment in ELC Case No. 14 of 2021.

.   The Affiant deponed that he was advised by the 1st Defendant’s Counsel that a party could not simultaneously be an ancestral owner as claimed against Parcel L.R. No. 5041 and an adverse possessor claiming title by trespassing on someone else’s land for twelve years as against Parcel L.R. No. 1082. These theories were mutually exclusive. In ELC No. 14, the Court had found that the Plaintiffs failed to prove beneficial or legal interest in the suit property by dint of ancestral rights and concluded they were merely squatters. They were now attempting to bypass that failure by relitigating under the guise of adverse possession for a different parcel.

.   He was aware this sworn admission was fatal. One could not, as a matter of arithmetic or law, establish fifteen years’ continuous possession of land only entered after 2017. The Plaintiffs’ claim collapsed at the threshold of statutory limitation.

.   The credibility of the Plaintiffs’ case rested almost entirely on the testimony of the 1st Plaintiff, whose sworn statements across multiple forums were mutually destructive and irreconcilable. These were not peripheral discrepancies but went to the root of possession, continuity, ancestry, credibility, and motive. The Plaintiffs’ lead witness had perjured himself on material facts central to jurisdiction and relief.

.   He invited the Honourable Court to take judicial notice of the NLC Report where the Commission had conducted investigations and determinations regarding an alleged historical land injustice for the residents of Pongwe ‑ Kikoneni Ward pursuant to a Memorandum dated 6th June 2021.

.   The Claimants in the said Report sought intervention regarding a 1,000‑acre parcel of land known as L.R. No. 5041. A review of the report revealed damning evidence of the Plaintiffs’ inconsistent and fraudulent legal strategies, including:

i)   In the NLC Report over Parcel No. 5041, Sahare Kisupi Mwichambe appeared as an Interested Party claiming to be the registered owner of L.R. No. 5041/2, having been issued a Certificate of Lease in 2018. The NLC recommended cancellation of his title, finding it was acquired through fraud, corruption, and illegal means. Yet in the suit herein over L.R. No. 1082, Mwichambe appeared as a Plaintiff claiming to be a “Village Elder” who had lived on the parcel since 1945 without title. Annexed and marked as “EK ‑ 2” was a copy of the NLC Report.

ii)   The NLC noted that the Claimants, being the Plaintiffs herein, admitted they could not ascertain the existence of the Gunyu clan trust when attempting to verify it at the Mombasa lands registry. The NLC confirmed that the processing of land ownership for alleged settlers halted after issuance of offer letters in 2008 and was never completed.

iii)   The NLC Report relating to Parcel L.R. No. 5041 identified the land as “heavily squatted by past and recent entrants.” This aligned with testimony from the Kiruwa case (ELC No. 14 of 2021) where DW2 confirmed that as of 2017, there were no people residing on the land. This contradicted the Plaintiffs’ current averment of fifteen years of continuous possession.

.   He was aware that in 2017, the National Assembly prepared a report on the petition by residents of Pongwe Area, Lunga Lunga Constituency, on imminent eviction from L.R. No. 1083, Shimoni, Kwale. While the report focused on an adjacent parcel, its findings on the status of land in the Pongwe area provided critical historical and legal context that dislodged the Plaintiffs’ claims to L.R. No. 1082. Annexed and marked “EK‑3” was a copy of the National Assembly’s Report.

.   The Plaintiffs were engaged in predatory litigation, shifting their targets between L.R. No. 5041, L.R. No. 1083, and now L.R. No. 1082. They utilized a recycled template of evidence—graves, eighty years of occupation, and local schools—that had already been factually rejected by the ELC in 2024. The presence of a lead Plaintiff (Mwichambe), who had been judicially and administratively branded a fraudster in related land matters, rendered the suit a gross abuse of the court process warranting immediate dismissal.

.   In light of the two reports and the averments filed in ELC No. 14 of 2021, it was imperative for the Honourable Court to recognize that while the NLC Determination and the Kiruwa case formally concerned a separate parcel (L.R. No. 5041), the Plaintiffs’ sworn averments in those proceedings were fatal to their current claim over L.R. No. 1082. Having previously asserted, both before the NLC and under oath as DW - 1 in the Kiruwa case, that they were in actual, ancestral occupation of L.R. No. 5041, they could not now claim a simultaneous fifteen‑year period of exclusive possession over the 1st Defendant’s parcel.

.   He further invited the Court to take judicial notice of proceedings and findings (in ELC No. E041 of 2022 (Njoroge – Versus - Mwichambe), where the 1st Plaintiff herein was impleaded as the 1st Defendant. In those proceedings, it was disclosed that the 1st Plaintiff was the accused person in Kwale Chief Magistrates Court Criminal Case No. E277 of 2021 (Republic – Versus - Sahare Kisupi Mwichambe). The judicial record revealed that the 1st Plaintiff was charged with obtaining land registration by false pretence and obtaining money by false pretence regarding another parcel of land known as Kwale/Shimoni ADJ/635. He was specifically accused of using forged and fraudulent documents to create a “fraudulent parallel Green Card” and title to facilitate the illegal sale of property that did not belong to him.

.   These facts demonstrated that the 1st Plaintiff was not a simple ancestral settler as he portrayed himself in the current motion; he was a notorious serial land grabber and fraudster well‑known to the criminal justice system for manufacturing false claims of ownership.

.   The cumulative effect of the foregoing was that the Applicants had failed to demonstrate any clear, arguable right over the suit property capable of protection by way of injunction. He was advised by the 1st Defendant’s Advocates that an injunction should not issue where there was no proven possession and thus no harm to be suffered. Any alleged harm claimed by the Plaintiffs was self‑inflicted, arising from their documented recent trespass and coordinated mass entry onto the land after litigation commenced.

.   Even if the Plaintiffs had any valid interest, such interests would be purely economic and compensable by damages, failing the test for irreparable harm. On the flip side, granting the orders sought would cause immediate and irreversible prejudice to the 1st Defendant, the lawful, registered, and indefeasible proprietor of L.R. No. 1082, with a title issued in 1997. That title enjoyed absolute statutory protection under the Land Registration Act and constitutional protection under Article 40 of the Constitution.

.   Restraining a registered owner from utilizing its property based on perjured testimony of recent trespassers was a gross violation of the rule of law and constitutional guarantees of property ownership. He urged the Honourable Court to find that the balance of convenience tilted heavily in favour of protecting a registered proprietor against a fluid, unverified, and contradictory group of claimants.

.   Following issuance of status quo orders on 28th November, 2025, the Plaintiffs, under orchestration of the 1st Plaintiff, engaged in coordinated mass entry onto the suit property, deliberately altering the factual substratum with an intention to manufacture possession. This raised concern that the Court’s orders were being used not for preservation but to create or reinforce a factual basis for the claim.

.   In view of the foregoing, it was his respectful position that the Applicants had failed to satisfy the threshold for the grant of an interlocutory injunction. The application was unsupported by credible evidence, raised serious issues of consistency and identification, and sought to obtain, at an interim stage, what ought properly to be determined at trial.

.   It was in the interest of justice that this vexatious suit and the application 25th November, 2025 and 17th February, 2026 be dismissed with costs.

VI.   Submissions

12.   On 24th February, 2026 while the Parties were present in Court, they were directed to have the Notice of Motion Applications dated 25th November, 2025,  17th February, 2026 and the Notice of Preliminary Objection dated 17th February,  2026 be disposed of by way of written submissions and all the parties complied.

13.   Pursuant to that all the parties obliged and a ruling date was reserved on 5th May, 2026 by Court accordingly.

 

 

A.   The Written Submissions by the Plaintiff

14.   The Plaintiff through the Law firm of Messrs. Mbwiza and Company Advocates filed their written submissions dated 11th May, 2026.  Mr. Mwanjama Advocate submitted that these submissions were filed in support of the Plaintiffs/Applicants’ Notice of Motion Application dated 25th November, 2025 seeking preservatory and injunctive reliefs against the Defendants/Respondents pending the hearing and determination of the suit herein. This is a dispute concerning human occupation, generational possession, constitutional protection of property rights, dignity, and the deliberate weaponization of title documents to unlawfully uproot families who have occupied the suit property for decades.

15.   The Applicants have demonstrated that they have been in open, continuous, uninterrupted, notorious and exclusive possession of the suit land for an extensive period of time sufficient to found a claim for adverse possession under Section 38 of the Limitation of Actions Act. Despite the Applicants' long occupation, the Respondents have embarked on an aggressive campaign of intimidation through: threats of forceful eviction, coercion, interference with quiet possession, attempts to alter records, unlawful dealings with the suit property, and attempts at alienation designed to defeat the Applicants’ claim. This Honourable Court rightly appreciated the urgency of this matter and issued interim status quo orders on 28th November, 2025. The Applicants now urged this Honourable Court to convert the said interim preservation into formal injunctive protection pending determination of the suit. 

16.   The Learned Counsel relied on the following issues for determination:-

a.   Whether the Applicants have established a prima facie case with overwhelming chances of success.

b.   Whether the Applicants stand to suffer irreparable harm

c.   Whether the balance of convenience tilts in favour of preserving the Applicants’ possession.

d.   Whether the Respondents should be restrained from defeating the suit through transfers, developments or interference.

17.   On whether the Applicants have established a prima facie case, the Learned Counsel submitted that the principles governing grant of injunctions were settled in: “Giella – Versus - Cassman Brown & Co. Ltd”, Where the Court held that an applicant must establish:

•   a prima facie case;

•   irreparable injury;

•   balance of convenience.

18.   The Court of Appeal in the case of:- “Nguruman Limited – Versus -  Jan Bonde Nielsen & 2 Others” reaffirmed that once a prima facie case is shown, the court must preserve the substratum of the dispute. The Applicants have demonstrated: long occupation, possession spanning decades, developments on the land, familial settlement, continuous use, absence of interruption. The Respondents cannot wake up after decades and attempt to violently assert dormant paper rights. In the case of:- “Kweyu – Versus – Omuto” the Court held that adverse possession crystallizes where occupation becomes inconsistent with the title holder's rights. Similarly, in “Mtana Lewa – Versus - Kahindi Ngala Mwagandi”, the Court of Appeal held:

“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action.”

19.   This authority is directly on point. Further in “Kasuve – Versus - Mwaani Investments  Limited & 4 Others” the Court affirmed that long possession extinguishes registered ownership rights. The Applicants’ claim is therefore far from speculative-it is legally anchored.

20.   The Learned Counsel on the Respondents acting in bad faith submitted that what was deeply troubling is the Respondents’ calculated conduct. Even after becoming aware of this suit, they continue, threatening residents, issuing warnings, interfering with occupation, attempting construction, altering the character of the land and frustrating justice. This conduct amounts to an abuse of court process. In “Mrao Ltd – Versus - First American Bank of Kenya Ltd & 2 Others” the Court defined a prima facie case as one showing clear infringement requiring rebuttal. The Respondents’ conduct clearly meets that threshold. Further in “Olympic Sports House Ltd – Versus - School Equipment Centre Ltd” the Court condemned parties who alter disputed property during active litigation. This Court must not reward impunity.

21.   On irreparable harm, the Learned Counsel submitted that the Applicants reside on the suit property. Their homes, livelihoods, family structures and dignity are tied to the land. Eviction would result in: homelessness, destruction of homes, loss of livelihood, displacement of families and violation of dignity, such damage cannot be compensated by damages. In “Joseph Siro Mosioma – Versus -  Housing Finance Co. of Kenya Ltd & 3 Others” the Court held that loss of one’s home constitutes irreparable injury. Likewise, in “Virginia Edith Wambui Otieno – Versus - Joash Ochieng Ougo & Another” the court emphasized preservation where irreparable disruption may occur.

22.   On balance of convenience, the Learned Counsel submitted that the Applicants were already in possession. The Respondents lose absolutely nothing by waiting for the matter to be heard. The Applicants, however, stand to lose everything. In “Films Rover International Ltd – Versus - Cannon Film Sales Ltd”, the Court emphasized preserving the lower risk of injustice. Further in “Kenleb Cons Ltd – Versus - New Gatitu Service Station Ltd & Another” the Court held that where possession exists, preservation is critical.

23.   On the doctrine of lis pendens, the Learned Counsel submitted that the Respondents must not transfer the property to third parties. In “Mawji – Versus - US International University & Another”, the Court upheld the doctrine of lis pendens and restrained dealings during litigation. Likewise in “Naftali Ruthi Kinyua – Versus - Patrick Thuita Gachure & Another”, the Court protected disputed land from alienation pending trial. 

24.   On the constitutional dimension, the Learned Counsel submitted that the Respondents’ conduct threatened constitutional rights under:

•   Article 28-dignity,

•   Article 40-property rights,

•   Article 47-fair administrative action,

•   Article 50-fair hearing, and

•   Article 159-substantive justice.

25.   According to the Learned Counsel, the Court cannot sit back while powerful entities weaponize title documentation against vulnerable occupants. This Court exists to shield citizens from precisely this type of injustice.

26.   On why this court must act firmly, the Learned Counsel submitted that if this Court declined to intervene:

•   homes may be demolished

•   families displaced

•   evidence destroyed

•   third party rights created

•   the suit rendered nugatory

27.   The Respondents appear determined to create irreversible chaos before trial. This Honourable Court must send a clear message that litigants cannot defeat justice through intimidation, speed, and economic might.

28.   On the prayers, the Learned Counsel humbly prayed that this Honourable Court be pleased to:

a.   Allow the Notice of Motion dated 25th November 2025.

b.   Confirm and extend the status quo orders issued on 28th November 2025.

c.   Issue temporary injunction orders restraining the Respondents pending hearing and determination of this suit from:

•   evicting the Applicants

•   threatening them

•   interfering with possession

•   selling the land

•   transferring the land

•   constructing on the land

•   alienating the land

•   altering land records

d.   Direct the Land Registrar to place restrictions/cautions over the suit property.

e.   Award costs to the Applicants.

29.   In conclusion, the Learned Counsel submitted that the Applicants had lived on this land for decades. The Respondents slept on their alleged rights. They now seek to violently reclaim what the law may already have extinguished. Equity aids the vigilant-not land speculators who emerge after decades armed with title documents and intimidation tactics. This Court must protect the rule of law, preserve the suit property, and stop what appears to be a calculated land grab disguised as lawful ownership.

B.   The Written Submissions by the Indented Interested Party

30.   The Intended Interested Party by M/s. Munira Ali Omar from Haki Yetu  filed their written submissions dated 11th May, 2026. M/s Omar submitted that the Applicant, Haki Yetu Charitable Trust, sought joinder as an Interested Party in these proceedings on the basis that the issues before this Honourable Court raise matters of significant public interest concerning land rights, access to justice and the protection of vulnerable communities. The dispute before this Court directly affects the residents of Shimoni Settlement Scheme (LR No.1082), a vulnerable community whose access to justice are implicated in the present dispute. The dispute affects over five hundred and forty-nine (549) households residing within Shimoni Settlement Scheme.

31.   The Applicant was a human rights organization working on democratic governance, access to justice and land and urban development. In relation to the present dispute, it has been actively engaged with the affected residents of Shimoni Settlement Scheme (LR No.1082) through fact-finding meetings, legal awareness initiatives and documentation of emerging concerns relating to investigative and administrative actions occurring during, the pendency of this case. The Applicant therefore has an identifiable interest, a legitimate stake and a duty in these proceedings, particularly in ensuring that vulnerable litigants/plaintiffs can pursue their land rights without intimidation, unlawful interference or disregard of subsisting court orders. Its participation will assist this Honourable Court to receive relevant public interest information concerning compliance with court orders. protection of litigants/plaintiffs and adherence to lawful administrative processes arising from land disputes.

32.   Through its engagement with the affected residents, the Applicant has also documented concerns raising important constitutional questions touching on the right to access justice under Article 48. the right to fair administrative action under the provision of Article 47 and the protection of dignity and security of persons under the provision of Articles 28 and 29 of the Constitution. These concerns place the Applicant in a distinct position to assist this Honourable Court in appreciating the constitutional obligations arising from developments affecting litigants during the pendency of these proceedings, particularly as the issues in dispute extend beyond the immediate interests of the parties and raise matters of significant public interest relating to the enforcement and protection of constitutional rights.

i.   The Learned Counsel averred that on applicable principles stating that the Supreme Court laid down the guiding principles applicable in determining an application to be joined as an interested party in the case:-  “Trusted Society of Human Rights Alliance (Supra)”. The principles were later affirmed in “Francis Karioki Muruatetu & Another (Supra)” where the Court stated that sufficient grounds must be laid before the court on the basis of the following elements:-

ii.   The personal interest or stake that the party had in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough to stand apart from anything that is merely peripheral.

iii.   The prejudice to be suffered by the intended interested demonstrated to the satisfaction of the Court.

iv.   Lastly, a party must in its application set out the case and/or submissions it intends to make before the Court and demonstrate the relevance of those submissions. It must also demonstrate that the submissions are not merely a replication of what the other parties will be making before the Court.

33.   On whether the Applicant had satisfied the threshold for joinder. The Learned Counsel asserted that the Applicant had a clear and the Applicant had demonstrated a direct and identifiable interest in the present proceedings arising from its engagement with residents of Shimoni Settlement Scheme (LR No.1082) who was directly affected by the dispute before this Court. As deponed in the Supporting Affidavit of Peter Kiama, the Applicant has undertaken fact finding meetings, legal awareness initiatives and documentation of issues affecting the affected residents during the pendency of these proceedings. Through these engagements, the Applicant has received and documented reports from residents concerning investigative and administrative activities including summons issued to litigants, investigative engagements within the settlement scheme and activities occurring on the suit land during the subsistence of the Court’s interim and status quo orders issued on 1st December 2025.

34.   These matters are supported by sworn affidavits of affected residents annexed to the Supporting Affidavit dated 17th February, 2026 and form part of the material information currently within the possession of the Applicant. These matters are not speculative but are supported by sworn affidavits of nine (9) affected residents of Shimoni Settlement Scheme, annexed to the Supporting Affidavit dated 17th February, 2026, in which the deponents document their experiences relating to the investigative and administrative actions complained of during the pendency of these proceedings. These affidavits form part of the material information currently within the possession of the Applicant.

35.   The Applicant’s interest therefore arose from its sustained engagement with the affected community and its possession of information relevant to the Court’s supervisory role over compliance with its orders. This interest was proximate and identifiable and therefore meets the threshold established by the Supreme Court.

36.   On whether the Applicant would suffer prejudice if it was not joined. The Learned Counsel asserted that if was not joined in these proceedings, it would be unable to place before the Court the material information it has obtained through its engagement with the affected community. This information relates to developments occurring on the ground during the pendency of this suit such as issues concerning the security of residents involved in the litigation and compliance with subsisting court orders.

37.   On whether the Applicant would advance distinct submissions that would assist the court. The Learned Counsel submitted that the Applicant did not seek to replicate the case advanced by the Plaintiffs. Rather, the Applicant intended to assist the Court by providing an Independent public interest perspective grounded in its engagement with the affected community. In particular, the Applicant intended to assist the Court on matters relating to:

i.   Whether the conduct of investigative and administrative officers in relation to the issuance of summons, home raids of affected residents' homes, arrests, movement and activities on the suit land and convening of informal meetings involving litigants amounts to interference with ongoing court proceedings and undermines the authority of this Honourable Court.

ii.   Whether the interim and status quo orders issued by this Honourable Court on 1st December 2025 have been complied with by all parties and state actors and in particular by investigative and administrative officers operating within Shimoni, Kwale and Nairobi Counties.

iii.   Whether the actions complained of by the affected community members violate the right to fair administrative action, access to justice, freedom of movement, right to dignity, the right to privacy, and the constitutional guarantee of security of the person.

iv.   Whether vulnerable community members involved in active land litigation are entitled to protection from harassment, misuse of investigative processes, intimidation or undue influence, particularly where the subject matter concerns land tenure and threatened evictions.

v.   Whether continued engagement with litigants outside the court process, in the presence of subsisting court orders, risks prejudicing the fair and orderly determination of the dispute before this Honourable Court.

vi.   Whether this Honourable Court should issue further directions to ensure compliance with its orders and to protect the integrity of the judicial process and the rights of the litigants.

vii.   Whether the participation of the Intended Interested Party will assist the Court by providing material information regarding community security concerns, administrative conduct and adherence to the rule of low in land related disputes.

38.   These perspectives was distinct from the positions of the existing parties and would assist the Court in appreciating the prevailing circumstances surrounding the dispute.

39.   The Learned Counsel argued on the response to the 1st Respondent’s objection, that the 1st Defendant had objected to the Applicant’s participation in these proceedings on the basis that the Applicant he allegedly failed to demonstrate a sufficient interest to warrant its joinder and had suggested that the Applicant should instead participate, if at all, as amicus curiae. It was the humble submissions of the Applicant that this objection was misconceived both in fact and in law. The 1st Defendant had suggested that the Applicant should participate as amicus curiae on the basis that the Applicant claims expertise in human rights with particular focus on land rights. With respect, the Applicant was not seeking to participate merely as a legal expert. The Applicant's interest arises from its direct engagement with the residents of Shimoni Settlement Scheme, its documentation of developments affecting litigants during the pendency of these proceedings and the material information in its possession relating to compliance with subsisting court orders. This places the Applicant within the definition of an Interested Party as articulated by the Supreme Court in “Trusted Society of Human Rights Alliance – Versus -Mumo Matemu & 5 Others (Supra)”, rather than an amicus curiae whose role is limited to offering neutral legal advice to the Court.

40.   The legal foundation for the participation of persons or entities in proceedings of this nature was anchored in the Constitution of Kenya, 2010, particularly Articles 3, 22 and 258 which impose a duty on every person to respect, uphold and defend the Constitution and permit any person acting in the public interest to move the Court in the protection and enforcement of constitutional rights. In addition, the principles governing the joinder of an Interested Party have been authoritatively settled by the Supreme Court in “Trusted Society of Human Rights Alliance case (Supra)” and “Francis Karioki Muruatetu case (Supra)”, where the Court held that an Interested Party must demonstrate a proximate and identifiable interest in the subject mater of the proceedings and the value that its participation will add to the determination of the dispute.

41.   The Supreme Court in this case defined an Interested Party as “one who has a stake in the proceedings, though he or she was not a party to the cause ab initio and who will be affected by the decision of the Court when it is made.” The Applicant's engagement with the residents of Shimoni Settlement Scheme and the material information in its possession demonstrate such a stake in the present proceedings. The Applicant had satisfied this threshold. As demonstrated in the Supporting Affidavit, the Applicant’s interest arose from its sustained engagement with residents of Shimoni Settlement Scheme(LR No.1082),through which it had undertaken fact finding engagements, legal awareness initiatives and documentation of developments affecting the affected residents during the pendency of these proceedings. Notably, nine (9) affected residents have sworn affidavits documenting these experiences, which are annexed to the Supporting Affidavit and form part of the material before this Honourable Court.

42.   Through this engagement, the Applicant had obtained material information relating to the experiences of residents involved in the litigation, the conduct of investigative and administrative engagements within the settlement scheme and developments occurring on the suit land during the subsistence of the Court's interim and status quo orders. This information was directly relevant to the issues before the Court and places the Applicant in a distinct position to assist the Court in appreciating the circumstances within which the dispute was unfolding. These sworn affidavits from affected residents further demonstrate that the Applicant possesses first-hand information relevant to the issues before the Court.

43.   The suggestion that the Applicant should instead participate as amicus curiae is therefore misplaced. An amicus curiae participates as a neutral advisor to the Court and did not possess any stake in the subject matter of the dispute. In contrast, an Interested Party was one who demonstrates a recognizable stake in the proceedings and whose participation assists the Court by placing relevant factual or material information before it. In the present case, the Applicant's role was grounded in its direct engagement with the affected community and the material information it has obtained concerning developments occurring during the pendency of these proceedings. The Applicant therefore possesses a proximate and identifiable interest in the issues before the Court. The Applicant’s participation will therefore assist this Honourable Court to better appreciate the circumstances affecting the litigants and the developments occurring on the ground during the pendency of this suit. In the circumstances, the Applicant submitted that its participation is properly suited to that of an Interested Party rather than amicus curiae and that its joinder will assist this Honourable Court in the just determination of the issues arising in this suit.

44.   On whether the Applicant’s participation would assist the Court. The Learned Counsel submitted that the central question for this Honourable Court was whether the Applicant's participation will assist the Court in the just determination of the dispute. The Applicant had demonstrated that through its fact-finding engagements, community forums and documentation of residents' experiences, it possesses material information relating to developments affecting the affected community during the pendency of the proceedings. In disputes involving large and vulnerable settlement communities, such perspectives often assist the Court in appreciating the practical realities surrounding the enforcement of court orders and the participation of litigants in judicial processes.

45.   It was now well recognized that civil society organizations and public interest actors play an important role in assisting courts to appreciate the lived realities of affected communities in disputes involving land rights and access to justice. Courts have acknowledged that such organizations, through their community support work, are often uniquely placed to bring before the Court information that may not otherwise be fully captured through the pleadings of the principal parties. In disputes affecting vulnerable settlement communities, such participation enhances the Court’s ability to arrive at a just and informed determination of the issues before it.

46.   Further, the Learned Counsel reiterated that it did not seek to introduce new causes of action or to expand the scope of the dispute but merely to assist the Court through an independent public interest perspective grounded in its engagement with the affected community. Its participation will therefore enrich the proceedings without occasioning prejudice to any party.

47.   In conclusion, the Learned Counsel argued that the Applicant had demonstrated that it satisfies the threshold established by the Supreme Court for joinder as an Interested Party. The Applicant had established a clear and identifiable interest in the dispute, the prejudice it would suffer if excluded and the distinct submissions it intends to advance before the Court. In the circumstances, the Applicant prays that this Honourable Court be pleased to allow the Application and admit Haki Yetu Charitable Trust as an Interested Party in these proceedings.

VII.   Analysis and Determination

48.   The Honourable Court carefully read and considered the Notice of Motion application dated 25th November, 2025 filed by the Plaintiffs/Applicants, the Notice of Preliminary Objection dated 17th February, 2026 filed by the 1st Defendant, and the Notice of Motion application dated 17th February, 2026 filed by the Intended Interested Party, Haki Yetu Charitable Trust. The Court also considered the supporting affidavits of Sahare Kisupi Mwichambe and Peter Kiama, the Replying Affidavits and objections filed by the Defendants, together with the relevant statutory provisions and authorities cited. In order to arrive at an informed decision, the Court framed the following issues for determination: -

a)   Whether the Plaintiffs/Applicants have established a prima facie case sufficient to warrant the grant of temporary injunctive relief restraining the Defendants from eviction or interference with occupation of LR No. 1082.

b)   Whether the Preliminary Objection dated 17th February 2026 is merited, particularly on grounds of non-compliance with Order 1 Rule 8 and Order 37 Rule 7 (2) of the Civil Procedure Rules, 2010 variance between pleadings and affidavit evidence, and uncertainty of the land claimed.

c)   Whether the Intended Interested Party, Haki Yetu Charitable Trust, has demonstrated sufficient legal interest and public interest mandate to warrant joinder to the proceedings.

d)   Whether the Plaintiffs/Applicants’ claim for adverse possession is properly before the Court notwithstanding the procedural objections raised.

e)   Whether the balance of convenience and constitutional rights of the parties favour preservation of the status quo pending full hearing.

f)   Who ought to bear the costs of the applications.

ISSUE No. a).         Whether the Plaintiffs/Applicants have established a prima facie case sufficient to warrant the grant of temporary injunctive relief restraining the Defendants from eviction or interference with occupation of LR No. 1082.

49.   Under this sub – title, the main issue here is whether the Plaintiffs is entitled to be granted the relief of an interlocutory injunction. The application herein is premised under the provision of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law.  Which provides as follows: -

Order 40, Rule 1

Where in any suit it is proved by affidavit or otherwise—

a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or

b) that the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.

50.   Fundamentally, the principles applicable in an application for an injunction were laid out in the celebrated case of “Giella – Versus - Cassman Brown & Co Limited (1973) EA 358”, where it was stated: -

“First an applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

51.   The three conditions set out in “Giella (supra)”, need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR”: -,

“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent.  It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.  See Kenya Commercial Finance Co. Limited -  Versus -  Afraha Education Society [2001] Vol. 1 EA 86.  If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable.  In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage.  If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.  The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”.

52.   In dealing with the first condition of prima facie case, the Honorable Court guided by the definition melted down in the famous case “MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) KLR 125” of: -,

“So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter” 

53.   As the Court has previously observed in this ruling, the Plaintiffs/Applicants have demonstrated that they have been in open, continuous, exclusive, and uninterrupted occupation of LR No. 1082 (Shimoni Settlement Scheme) for over fifty years. They have established homesteads, cultivated perennial crops, and buried family members on the land. These acts are consistent with permanent settlement and assertion of proprietary rights..

54.   In the case of “Mbuthia – Versus -  Jimba credit Corporation Ltd 988 KLR 1”, the court held that;

“In an application for interlocutory injunctions, the court is not required to make final findings of contested facts and law and the court should only weigh the relative strength of the party’s cases.”

55.   Similarly, in the case of “Edwin Kamau Muniu – Versus -  Barclays Bank of Kenya Ltd” the court held that;

“In an interlocutory application to determine the very issues which will be canvassed at the trial with finality All the court is entitled at this stage is whether the applicant is entitled to an injunction sought on the usual criteria.”

56.   The Plaintiffs’ claim is anchored on Sections 7, 13 and 38 of the Limitation of Actions Act, Cap. 22 which extinguish the registered owner’s title after twelve years of adverse possession and vest enforceable rights in the possessor. The Plaintiffs have therefore demonstrated a right that has apparently been infringed by the Defendants’ attempts to evict them. 

57.   The Defendants’ Preliminary Objection raises procedural defects, including lack of annexation of a certified extract of title and variance between the acreage claimed in the Summons and the Affidavit. While these are not trivial, they do not negate the substantive occupation and possession demonstrated by the Plaintiffs. Guided by Article 159(2)(d) of the Constitution, the Court is obliged to administer justice without undue regard to technicalities.

58.   Regarding this first condition though, the Plaintiffs have demonstrated a prima facie case with a probability of success at the trial as enunciated in the case of “Giella -Versus - Cassman Brown & Co. Ltd (Supra)” warranting the protection of interlocutory injunctive relief to preserve the substratum of the suit until final determination.

59.   The court has further considered the annextures on record against the second principle for the grant of an injunction, that is, whether the Plaintiff might suffer irreparable injury which cannot be adequately compensated by an award of monetary damages. With regards to the second limb of the Court of Appeal in “Nguruman Limited (supra)”, held that,

“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury.  Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant.  The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages.  An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”

60.   On the issue whether the Applicant will suffer irreparable harm which cannot be adequately compensated by an award of damages, the Applicant must demonstrate that it is a harm that cannot be quantified in monetary terms or cannot be cured. The Plaintiffs have shown that eviction would not only destroy their homes and livelihoods but also desecrate graves of kin. Such harm cannot be adequately compensated by damages. The Court notes that land, particularly ancestral land, carries unique cultural and sentimental value. The Plaintiffs’ occupation is not merely economic but also social and spiritual, tied to family heritage. Eviction would therefore cause harm that is irreparable and beyond monetary valuation.

61.   The judicial decision of “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (2018) eKLR” provides an explanation for what is meant by irreparable injury and it states;

“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.”

62.   On the facts, the Plaintiffs have demonstrated that their occupation of the suit property is deeply rooted in residence, livelihood, and family heritage. Eviction or alienation would cause harm that is actual, substantial, and incapable of adequate monetary compensation. Accordingly, the Honourable Court finds that the Plaintiffs have satisfied the second limb of the “Giella – Versus - Cassman Brown test (Supra)” by proving irreparable injury.

63.   Thirdly, the Applicant has to demonstrate that the balance of convenience tilts in his favour.  In the case of “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (Supra)” which defined the concept of balance of convenience as:

“The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer.

In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”.

64.   In the case of “Paul Gitonga Wanjau – Versus -  Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR”, the court dealing with the issue of balance of convenience expressed itself thus:-

“Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which  the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.”

65.   The Plaintiffs have been in settled occupation for decades, while the Defendants’ proprietary rights can be vindicated at trial if they succeed.

66.   If the injunction is denied and the Plaintiff ultimately succeeds at trial, the inconvenience and harm she would suffer—loss of home, livelihood, and desecration of graves—would be far greater than the inconvenience to the Defendants if the injunction is granted but the suit is dismissed. Land, as recognized in “Milly Glass Works Ltd – Versus - Kenya Railways Corporation [2026] KEELC 2248”, has a unique character, and its alienation cannot be adequately compensated by damages. The comparative mischief from withholding the injunction is greater than that which may arise from granting it. The Plaintiff’s occupation is longstanding and deeply rooted, while the Defendants’ rights as registered proprietors can be vindicated at trial if they succeed.

67.   Accordingly, the Honourable Court finds that the balance of convenience tilts in favour of the Plaintiffs, and preservation of the status quo through injunctive relief is the lower risk of injustice. The decision of “Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR” where the learned judge offered further elaboration on what is meant by “balance of convenience” and stated; -

“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”

68.   The balance of convenience lies with the Plaintiff in this case. Bearing this in mind, I am convinced that there is a lower risk in granting orders of temporary injunction than not granting him, as I wait to hear the suit on its merits. This is especially so because I have not had the opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the claim of the Plaintiffs and it will be in the interest of both the Plaintiffs and the Defendants that the suit property is preserved until the hearing and determination of the suit.

69.   In the case of:- “Robert Mugo wa Karanja – Versus -  Ecobank (Kenya) Limited & Another [2019) eKLR” where the court in deciding on an injunction application stated;

“circumstances for consideration before granting a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...”

70.    I am convinced that if orders of temporary injunction are not granted in this suit, the property in dispute might be in danger of being dealt in the manner set out in the application and apprehended by the Plaintiffs/Applicants.  In view of the foregoing, I strongly find that the Plaintiffs have met the criteria for grant of orders of temporary injunction.

ISSUE No. b).         Whether the Preliminary Objection dated 17th February 2026 is merited, particularly on grounds of non-compliance with Order 1 Rule 8 and Order 37 Rule 7(2) of the Civil Procedure Rules, variance between pleadings and affidavit evidence, and uncertainty of the land claimed.

71.   Under this sub‑title the Court shall examine I have considered the Notice of Preliminary Objection by the 1st Defendant and the submissions herein and two (2) issues fall for determination in the Notice of Preliminary Objection: -

a.   Whether the objection raises pure points of law?

b.   Whether the Notice of Preliminary objection is merited?

On the first issue:- Whether the objection raises pure points of law

72.   Under this Sub – heading, the Honourable Court will decipher on the substratum of the matter is whether the objection raised pure points of law. In determining this instant  Notice of Preliminary Objection, the Court will first consider what amounts to a Preliminary  Objection and then Juxtapose the said description herein and come up with a finding on whether what has been raised herein fits the said description.

73.   According to the Black Law Dictionary a Preliminary Objection is defined as being:

“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”

74.   According to Black’s Law Dictionary 11th Edition, a Preliminary Objection is an objection that if upheld would render further proceedings before the tribunal impossible or unnecessary. Courts have various defined Preliminary objection as one that consists of a point which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary point my dispose of the suit.

75.   The above legal preposition has been made graphically clear in the now famous case of “Mukisa Biscuits – Versus - Westend Distributor Ltd [1969] EA 696”, the court observed that: -

“A Preliminary Objection is in the nature of what used to be a demurrer.  It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.  It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.  The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue.”

76.   This statement of the law has been echoed time and again by the courts: see for example, “Oraro – Versus - Mbaja [2007] KLR 141”.

77.   The same position was held in the case of “Nitin Properties Ltd – Versus -  Jagjit S. Kalsi & another  Court of Appeal No. 132 of 1989[1995-1998] 2EA 257”  where the Court held that;

“A preliminary Objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any facts has to be ascertained or if what is sought is the exercise of Judicial discretion.”

78.   Similarly in the case of “United Insurance Company LTD – Versus  - Scholastica A Odera Kisumu HCC Appeal No. 6 of 2005(2005) LLR 7396”, the Court held that;

“A preliminary Objection must be based on a point of law which is clear and beyond any doubt and Preliminary Objection which is based on facts which are disputed cannot be used to determine the whole matter as the facts must be precise and clear to enable the Court to say the facts are contested or disputed .”

79.   Therefore from the above holdings of the Courts, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. See also the case of  “In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that;

“A Preliminary Objection cannot be raised if any facts has to be ascertained.”

80.    I have further relied on the decision of “Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR” as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia:-

(i) A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.

(ii) A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and

(iii) The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.

81.   In the present case, the 1st Defendant raises objections based on Order 1 Rule 8 (representative suits), Order 37 Rule 7(2) (requirement of certified extract of title in adverse possession claims), variance between pleadings and affidavit evidence, and uncertainty of the land claimed. These are matters of law and procedure, not factual disputes. In this case, I am satisfied that the objection raises pure points of law in that the preliminary objection.

On the second issue:- Whether the Notice of Preliminary objection is merited.

82.   The Honourable Court has considered the Notice of Preliminary Objection dated 17th February 2026 filed by the 1st Defendant, the grounds raised therein, and the submissions of counsel. The objection challenges the competence of the Plaintiffs’ Originating Summons on grounds of non-compliance with Order 1 Rule 8 and Order 37 Rule 7 (2) of the Civil Procedure Rules, 2010 variance between pleadings and affidavit evidence, and uncertainty of the land claimed.

83.   The provision of Order 1 Rule 8 of the Civil Procedure Rules, 2010 provides that as follows:-

1)   Where numerous persons have the same interest in any proceeding, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

2)   The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of person or any other cause such service is not reasonably practicable by public advertisement, as the Court in each case may direct.

3)   Any person on whose behalf or for whose benefit a suit is instituted or defended under sub rule (1) may apply to the Court to be made a party to such suit.

84.   The issue was discussed by the court in the case of:- “Ahmed Dolal & 9 others (suing on their behalf and on behalf of 27 Members of Likoley Farmers) – Versus - Kengen & another [2018] eKLR” where it was held that:

“The purpose of that provision was well put in the case of Yiapas Ole Seese & 4 Others – Versus - Sakita Ole Narok & 2 Others [2008] eKLR where the court held:

“The whole purpose of the provisions of Order 1 Rule 8 is to ensure that all persons with unlitigated similar cause of action who are desirous of having their cause determined are included in the suit for their own convenience and to obviate a multiplicity of suits. Hence the need to notify them of the institution of the suit so that in case any of them wishes to take part he is given the opportunity to do so…….until notices under Order 1 Rule 8, Civil Procedure Rules, are served, one may not know whether or not they will accept being treated as Plaintiffs. Service of the notice as we stated earlier, is to give them an opportunity to make an election whether or not to become parties.

My plain reading of Order 1 Rule 8 is that such a notice is not a mandatory requirement that can render a suit fatally defective for non-compliance. The spirit of the law in requiring notice to be given to persons likely to be affected in the case of a representative nature is a procedural requirement that cannot be elevated to a fetish for non-compliance. The rule should not be treated as a rigid matter of principle but a flexible tool of convenience in the administration of justice to the parties.”

85.   I am persuaded by the case of “Jack Mukho Mukhongo Munialo -Versus - Nzoia Sugar Company Ltd & another (2017) eKLR” where the Court stated as follows:-

“…the above in my view is not a reason to strike out the entire suit taking into account that it is not fatal at this stage since the suit is still in its infancy stage and giving due regard to Article 159 of the Constitution. The Plaintiff still has opportunity to comply…”

86.   There is no doubt that the Plaintiffs’ suit is a representative suit. The Purpose of the provision of Order 1 Rule 8 of the Civil Procedure Rules, 2010 was to alert members who have a common interest in a suit to apply to be joined in the suit. It is my finding that the Plaintiffs failed to comply with Order 1 Rule 8. This ground is merited. 

87.   The provision of Order 37 Rule 7(2) of the Civil Procedure Rules, 2010 requires annexation of a certified extract of title in adverse possession claims. The Plaintiffs’ Supporting Affidavit did not annex such extract. In the case of:- “Kweyu – Versus -  Omuto [1990] KLR 709”, the Court emphasized that adverse possession must be supported by clear evidence of extinguishment of the registered owner’s title. Absence of a certified extract of title renders the Summons defective, as the Court cannot ascertain the registered ownership and the precise parcel claimed. The Plaintiffs failed to comply with Order 37 Rule 7(2). This ground is merited.

88.   The Originating Summons seeks adverse possession over the entire LR No. 1082 measuring 320 acres, while the Supporting Affidavit of Sahare Kisupi Mwichambe refers to occupation of only 20 acres. This inconsistency undermines the clarity of the claim. In the case of:- “Kibutiri – Versus - Kibutiri [1983] KLR 60”, the Court held that adverse possession must relate to a defined, ascertainable parcel. A claim that is inconsistent between pleadings and affidavit evidence is defective and incapable of sustaining relief. The variance between pleadings and affidavit evidence is material and renders the Summons defective. This ground is merited.

89.   A claim for adverse possession must relate to a defined parcel with clear boundaries. The Plaintiffs’ pleadings are vague, referring broadly to LR No. 1082 without survey particulars or demarcation. Likewise, in the case of:- “Mbira – Versus - Gachuhi [2002] 1 EALR 137”, the Court held that possession must be specific, open, and notorious. A claim that fails to identify the precise portion of land is uncertain and unenforceable. The claim lacks certainty and is defective. This ground is merited.

90.   The Preliminary Objection dated 17th February 2026 raises pure points of law and is merited on all the grounds advanced: non-compliance with the provision of Order 1 Rule 8, non-compliance with Order 37 Rule 7 (2) of the Civil Procedure Rules, 2010, variance between pleadings and affidavit evidence, and uncertainty of the land claimed. The Preliminary Objection is upheld in part.

91.   To cure the procedural defectiveness of the suit, the Court orders that the Plaintiffs are granted leave to amend the Originating Summons within thirty (30) days to cure the defects identified.

ISSUE No. c).         Whether the Intended Interested Party, Haki Yetu Charitable Trust, has demonstrated sufficient legal interest and public interest mandate to warrant joinder to the proceedings.

92.   Under this subtitle the Court examines whether the Intended Interested Party, Haki Yetu Charitable Trust, has demonstrated sufficient legal interest and public interest mandate to warrant joinder to the proceedings.

93.   The Honourable Court has considered the Notice of Motion dated 17th February, 2026 filed by the Intended Interested Party, Haki Yetu Charitable Trust, together with the supporting affidavit of Peter Kiama, the Executive Director of the Trust. The application seeks leave to be enjoined in these proceedings on the basis of its mandate in human rights advocacy, land governance, and public interest litigation. The Court has also considered the responses filed by the existing parties, the relevant statutory provisions, and the guiding jurisprudence.

94.   Although the Civil Procedure Act does not expressly provide for joinder of Interested parties to a suit, courts have used the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010 and precedents set giving the essentials that must be met before a party is joined as an interested party.

95.   The application for joinder is premised on the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010, which provides that:

“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined be struck out, and that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

96.   Further, the provision of Articles 22 and 258 of the Constitution of Kenya, 2010 permit any person to institute proceedings in the public interest for enforcement of rights and the Constitution. The provision Article 159 (2)(c) of the Constitution enjoins courts to promote alternative and inclusive forms of dispute resolution, while the provision Article 48 guarantees access to justice.

97.   In the case of:- “Lucy Nungari Ngigi & 128 Others – Versus - National Bank of Kenya Limited & Another [2015] eKLR” the Court stated as follows when considering whether to grant leave to join a party in proceedings: -

“Joinder of parties is governed by Order 1 of the Civil Procedure Rules. In law, joinder should be permitted of all parties in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally; or in the alternative, where if such persons brought separate suits, any common question of law of fact would arise. See also Order 7 Rule 9 of the Civil Procedure Rules. The court may even in its own motion add a party to the suit if such party is necessary for the determination of the real matter in dispute or whose presence is necessary in order to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. Therefore, joinder of parties is permitted by law and it can be done at any stage of the proceedings. But, joinder of parties may be refused where such joinder: will lead into practical problems of handling the existing cause of action together with the one of the party being joined; is unnecessary; or will just occasion unnecessary delay or costs on the parties in the suit. In other word, joinder of parties will be declined where the cause of action being proposed or the relief sought is incompatible to or totally different from existing cause of action or the relief. The determining factor in joinder of parties is that a common question of fact or law would arise between the existing and the intended parties.”

98.   Similarly in the case of:- “Judicial Service Commission – Versus - Speaker of the National Assembly & another [2013] eKLR”, the High Court defined an interested party as follows:-

“…..a person with an identifiable stake or legal interest in the proceedings hence may not be said to be wholly non-partisan as he is likely to urge the Court to make a determination favourable to his stake in the proceedings.”

99.   Further in the case of the case of:- “Francis Karioki Muruatetu & another – Versus - Republic & 5 others; Supreme Court Pet. 15 and 16 of 2015, [2016] eKLR” where the Supreme Court (Rawal, DCJ & V-P; Ibrahim, Ojwang, Wanjala & Njoki, SCJJ) established the tests for joinder of interested parties as follows:

“From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an Interested Party:

One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:

i)   The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.

ii)   The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.

iii)   Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.”

100.   In the case of “JMK – Versus - MWM & ano (2015) eKLR”, the court of Appeal had occasion to discuss a similar issue. I find it worthy quoting verbatim the holding of the court as follows:-

“We would however agree with the Respondent that Order 1 Rule 10 (2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the court. Sarkar’s Code (supra) quoting as authority, decisions of Indian courts on the provision, expresses the view that an application for joinder of parties can be filed only in pending proceedings. In the same vein, the Court of Appeal of Tanzania, while considering the equivalent of Order 1 Rule 10(2) of our Civil Procedure Rules, In Tang Gas Distributors Limited – Versus - Said & Others (2014) EA 448, stated that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings; that a party can be joined even without applying; that the joinder may be done either before or during the trial; that it can be done even after Judgement where damages are yet to be assessed; that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rules becomes inapplicable; and that a party can even be added at the appellate state.”

101.   Mutungi J, in the case of:- “Kimwele – Versus - Kubora & Another; Mwasya & 5 Others (interested Parties) {2025} KEELC 5636 KLR”, while agreeing with the above position further stated that:-

“Regarding the prayer for joinder as interested parties, the court in my view is functus officio in this matter as the matter was heard and concluded and a judgement was rendered. Order 1 Rule 10(2) of the Civil Procedure Rules allows for joinder, only during ongoing proceedings.”

102.   The Supreme Court of Kenya on its part in the case of:- “Everton Coal Enterprises Ltd – Versus - Rose Wakanyi Karanja & 5 others, Application No.E026 of 2023”, cited with approval, the Court of Appeal’s holding in “JMK – Versus - MWM & Another (Supra)”, stating that:-

“This question has been settled in a long thread of past decisions. For example, in JMK – VERSUS - MWM & Ano (2015) eKLR , the court stressed that;

“an application for joinder of parties can be filed only in pending proceedings; that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings either before, or during the trial; and that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable.”

103.   The Supreme Court of Kenya further pointed to a number of other decisions including the Court of Appeal decision in the case of:- “Kenya Airports Authority – Versus - Mutubell Welfare Society and 2 Others (2016) eKLR”, on the finality of a judgement as a judgement of the court resolving all the contested issues and settling the rights and liabilities of the parties before it as well as its own decision in “University of Eldoret & Another – Versus - Hosea Sitienei & 3 Others, Supreme Court application No. 8 of 2020; {2020} eKLR”, emphasizing the finality of the litigation process. It too noted its own pronouncement in the case of:- “CCK & 4 Others – Versus - Royal Media Services Limited & 7 Others (2014) eKLR”, relying on “Trusted Society of Human Rights Alliance – Versus - Mumo Matemo & 5 Others (2015) eKLR”, on the place of an interested party in any proceedings.

104.   The Affidavit of Peter Kiama demonstrates that Haki Yetu Charitable Trust is a registered entity under the Trustees Act (Cap 167) and the Trustees (Perpetual Succession) Act (Cap 164). The Trust’s mandate includes advocacy for land rights, democratic governance, and access to justice for marginalized communities. It has actively engaged with residents of Shimoni Settlement Scheme (LR No. 1082) through fact-finding missions, legal awareness programs, and documentation of alleged intimidation and administrative interference during the pendency of these proceedings.

105.   The Court notes that the subject matter of this suit concerns a long-standing land dispute involving over 549 households, raising significant public interest considerations. The Intended Interested Party has demonstrated possession of material information relevant to compliance with subsisting court orders and the protection of vulnerable litigants. Its participation is therefore not peripheral but central to the integrity of the judicial process.

106.   The Court is satisfied that Haki Yetu’s engagement with the affected community, its documentation of alleged breaches of court orders, and its advocacy for adherence to due process establish a sufficient legal and public interest stake. The Trust’s participation will not prejudice any party, nor will it delay proceedings. Instead, it will assist the Court in safeguarding the integrity of its orders and ensuring that the rights of vulnerable litigants are protected.

107.   Having considered the pleadings, affidavits, and authorities cited, the Court finds that the Intended Interested Party, Haki Yetu Charitable Trust, has demonstrated sufficient legal interest and public interest mandate to warrant joinder to these proceedings under the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules and Articles 22 and 258 of the Constitution.

ISSUE No. d).         Whether the Plaintiffs/Applicants’ claim for adverse possession is properly before the Court notwithstanding the procedural objections raised

108.   Under this sub‑title the Court shall examine whether the Plaintiffs/Applicants’ claim for adverse possession is properly before the Court notwithstanding the procedural objections raised. The Honourable Court has considered the Originating Summons dated 25th November 2025, the Supporting Affidavit of Sahare Kisupi Mwichambe, the Notice of Preliminary Objection dated 17th February 2026, and the submissions of counsel. The 1st Defendant challenges the competence of the Plaintiffs’ claim for adverse possession on grounds of non-compliance with Order 1 Rule 8 and Order 37 Rule 7 (2) of the Civil Procedure Rules, variance between pleadings and affidavit evidence, and uncertainty of the land claimed. The Court must determine whether, notwithstanding these objections, the Plaintiffs’ claim is properly before it. 

109.   The Plaintiffs’ claim is anchored on the provision of Sections 7 and 38 of the Limitation of Actions Act, Cap. 22. Section 7 provides that actions to recover land may not be brought after the expiry of twelve years from the date the right of action accrued while the provision of Section 38 empowers a person who has been in possession of land for twelve years or more to apply to the f Court for an order that they be registered as the proprietor in place of the registered owner. The procedural framework is governed by the provision of  Order 37 Rule 7 (2) of the Civil Procedure Rules, 2010 which requires that an Originating Summons for adverse possession be supported by an affidavit annexing a certified extract of the title to the land in question.

110.   In the case of:- “Kweyu – Versus -  Omuto (Supra)”, adverse possession is established where the claimant proves exclusive, open, and uninterrupted occupation for twelve years, inconsistent with the title of the true owner. The Plaintiffs have claimed through affidavit evidence that they have been in open, continuous, exclusive, and uninterrupted occupation of LR No. 1082 for over fifty years, with permanent structures, cultivation of perennial crops, and burial of family members. These acts are consistent with proprietary rights and meet the threshold for adverse possession under the provision of Sections 7 and 38 of the Limitation of Actions Act, Cap. 22.

111.   In the case of “Simba – Versus - Tulu [2025] KEHC 14130”,the Court held that even if an affidavit (like a verifying affidavit) is defective for non-compliance with the Oaths and Statutory Declarations Act, courts should consider whether it can be cured by amendment or supplementary filing rather than striking out the entire suit.

112.   The Court finds that while the Plaintiffs’ Originating Summons suffers from procedural defects, the claim for adverse possession is nonetheless properly before the Court. The defects are curable by amendment, and striking out the suit would occasion grave prejudice to the Plaintiffs, who have demonstrated long occupation and reliance on the suit property for livelihood and residence.

ISSUE No. e).          Whether the balance of convenience and constitutional rights of the parties favour preservation of the status quo pending full hearing

113.   Under this sub-title the Court shall examine whether the balance of convenience and the constitutional rights of the parties favour preservation of the status quo pending full hearing of the suit. The third limb of the celebrated “Giella – Versus - Cassman Brown & Co. Ltd (Supra)” test requires the Court, where in doubt, to determine an application for interlocutory injunction on the balance of convenience. This principle was elaborated in “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (Supra)”, where the Court held that balance of convenience means the comparative mischief or hardship likely to result from granting or refusing the injunction.

114.   Further, in “Paul Gitonga Wanjau – Versus - Gathuthis Tea Factory Co. Ltd & 2 Others [2016] eKLR”, the Court emphasized that where doubt exists as to the applicant’s right, the Court must weigh the inconvenience to each party and preserve the status quo to minimize risk of injustice. The guiding constitutional provisions include Article 40 which provides for the protection of the right to property; Article 43(1)(b) on the right to accessible and adequate housing; Article 28 which provides for the right to human dignity and Article 159(2)(d) which provides for justice to be administered without undue regard to technicalities.

115.   The Plaintiffs/Applicants have demonstrated occupation of LR No. 1082 (Shimoni Settlement Scheme) for over fifty years, with permanent homesteads, cultivation of perennial crops, and burial of family members. Eviction would not only deprive them of shelter and livelihood but also desecrate graves, thereby infringing their rights under the provision of Articles 40, 43(1)(b), and 28 of the Constitution.

116.   The Defendants, as registered proprietors, assert ownership rights and seek to evict the Plaintiffs. While proprietary rights are constitutionally protected under the provision of Article 40, such rights are not absolute and must be balanced against competing rights, particularly where claims of adverse possession are raised.

117.   If the injunction is denied and the Plaintiffs ultimately succeed at trial, the harm they would suffer—loss of homes, livelihoods, and desecration of graves—would be far greater than the inconvenience to the Defendants if the injunction is granted but the suit is dismissed. In the case of;- “Amir Suleiman – Versus - Amboseli Resort Limited (Supra)”, the Court held that in responding to prayers for interlocutory relief, the Court should always opt for the lower risk of injustice. Here, the lower risk lies in preserving the Plaintiffs’ occupation until the matter is fully heard.

118.   The Court finds that the balance of convenience and the constitutional rights of the parties favour preservation of the status quo. The Plaintiffs’ rights to property, housing, and dignity would be gravely prejudiced by eviction, while the Defendants’ proprietary interests can be vindicated at trial if they succeed.

ISSUE No. f).          Who ought to bear the costs of the applications

119.   Under this sub-title the Court shall examine who ought to bear the costs of the applications filed herein, namely:

a)   The Notice of Motion dated 25th November 2025 by the Plaintiffs/Applicants seeking injunctive relief.

b)   The Notice of Preliminary Objection dated 17th February 2026 by the 1st Defendant challenging the competence of the Originating Summons.

c)   The Notice of Motion dated 17th February, 2026 by the Intended Interested Party, Haki Yetu Charitable Trust, seeking joinder. 

120.   It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The governing provision is Section 27(1) of the Civil Procedure Act, Cap. 21, which provides:

“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”

121.   Thus, while the general rule is that costs follow the event, the Court retains discretion to depart from this principle where justice so demands.

122.   This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus -  Nairobi City County Government [2018] eKLR” and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR”, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances.

123.   The Plaintiffs/Applicants have succeeded in demonstrating a prima facie case and obtaining interim injunctive relief. The 1st Defendant’s Preliminary Objection has been upheld in part, but the Court has granted leave to amend the Originating Summons, thereby preserving the Plaintiffs’ claim. The Intended Interested Party, Haki Yetu Charitable Trust, has been successfully enjoined, its participation being in the public interest.

124.   Given the mixed outcome of the applications, it would not be just to saddle any party with costs at this interlocutory stage. The Plaintiffs have partially succeeded, the Defendants have partially succeeded, and the Interested Party has succeeded in its joinder application.

125.   The Court finds that the fairest order is that costs of all the applications shall abide the outcome of the main suit. This approach ensures that no party is prejudiced at the interlocutory stage and that costs are determined after the substantive issues of adverse possession and ownership are finally adjudicated.

VIII.   Conclusion and Disposition.

126.   Upon considering the Notice of Motion application dated 25th November, 2025 by the Plaintiffs/Applicants, the Notice of Preliminary Objection dated 17th February, 2026 by the 1st Defendant, and the Notice of Motion application dated 17th February, 2026 by the Intended Interested Party, Haki Yetu Charitable Trust, together with the supporting affidavits, submissions, and authorities cited, the Honourable Court makes the following findings and orders:-

a.   THAT the Plaintiffs/Applicants have established a prima facie case with a probability of success, demonstrated irreparable harm, and shown that the balance of convenience favours preservation of the status quo. The Notice of Motion application dated 25th November, 2025 be and is therefore found to have merit and is hereby allowed.

b.   THAT pending the hearing and determination of the suit, an order of temporary injunction is hereby issued restraining the Defendants/Respondents, their agents, employees, or servants from evicting, threatening to evict, interfering with, or otherwise disturbing the Plaintiffs/Applicants’ occupation of LR No. 1082 (Shimoni Settlement Scheme).

c.   THAT the Notice of Preliminary Objection dated 17th February 2026 is upheld in part. The Court finds that the Originating Summons suffers from procedural defects, namely non-compliance with Order 1 Rule 8 and Order 37 Rule 7 (2) of the Civil Procedure Rules, 2010 variance between pleadings and affidavit evidence, and uncertainty of the land claimed. However, in the interests of substantive justice under Article 159(2)(d) of the Constitution, the Plaintiffs/Applicants are granted leave to amend the Originating Summons WITHIN THIRTY (30) DAYS from this date to cure the defects identified. 

d.   THAT the application for joinder by the Intended Interested Party, Haki Yetu Charitable Trust, be and is hereby found to be merited. The Trust has demonstrated sufficient legal interest and public interest mandate under the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010 and Articles 22 and 258 of the Constitution. The application is therefore allowed, and Haki Yetu Charitable Trust be and is hereby enjoined as an Interested Party.

e.   THAT the Plaintiffs/Applicants’ claim for land adverse possession is properly before the Court notwithstanding the procedural objections raised, subject to compliance with the directions on amendment under Order (c) above.

f.   THAT there be a Mention on 22nd September, 2026 for conducting a Pre – Trial conference in accordance with the provision of Order 111 of the Civil Procedure Rules, 2010. There be a hearing 22nd October, 2026 preferably through physical means before ELC No. 1, Kwale to determine whether the Plaintiffs have acquired title by adverse possession.  

g.   THAT the balance of convenience and constitutional rights of the parties favour preservation of the status quo. The substratum of the suit, peace and tranquility shall therefore be maintained until final determination.

h.   THAT the costs of the applications shall abide the outcome of the main suit, given the mixed success of the parties and the public interest dimension of the dispute.

IT IS SO ORDERED ACCORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……18TH ……DAY OF ……JUNE……..……..2026.

Ruling delivered in the presence of:

(a)   Mr. Daniel Disii, the Court Assistant;

(b)   Mr. Mwanjama Advocate holding brief for Mr. Mbwiza Advocate for the Plaintiffs;

(c)   Mr. Sagana & M/s. Kinyua Advocates for the 1st Defendant

(d)   No appearance for the Interested Party.