Mohazo Ex-Impo Limited v Amri & 5 others (Environment and Land Case E013 of 2025) [2026] KEELC 617 (KLR) (29 January 2026) (Ruling)

Mohazo Ex-Impo Limited v Amri & 5 others (Environment and Land Case E013 of 2025) [2026] KEELC 617 (KLR) (29 January 2026) (Ruling) Neutral citation: [2026] KEELC 617 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Environment and Land Case E013 of 2025 LL Naikuni, J January 29, 2026 Between Mohazo Ex-Impo Limited Plaintiff and Juma Abdala Amri 1st Defendant Hamisi Juma Mwajao 2nd Defendant Omar R. Mwafaphana 3rd Defendant Bakari Mohamed Zimba 4th Defendant Adhumani Khamisi Bwika 5th Defendant National Environment Management Authority 6th Defendant Ruling I. Introduction 1.This Honourable Court was called upon to determine two ( 2 ) Notices of Motion application dated 26th February, 2025 by the Plaintiff/Applicant herein. While, the second Notice of Motion application is dated 30th March 2025 by the 1st – 5th Defendants/Respondents herein. 2.Upon service of the applications, they were responded to by the Respondents and the Honourable Court shall be dealing with each these applications and their responses simultaneously. II. The Notice of Motion application dated 26th February 2025 3.The application was brought under the provision of Sections 3A and 63 Order 40, Rule 1 & 2, Order 51 Rule 1 of the [Civil Procedure Act](/akn/ke/act/1924/3), Cap. 21 and Section 3(3 ) of the Environmental Management and Co - ordination Act (EMCA) Cap. 387 Laws of Kenya and all enabling provisions of the Law. 4.The Plaintiffs/Applicants sought for the following orders: -a.Spent.b.Spentc.Spentd.That temporary Orders of Injunction be issued restraining the Respondents whether by themselves, their agents, servants or anyone acting on their behalf or otherwise however from/in any way trespassing, excavating, fencing, gaining, accessing, selling, alienating, transferring, sub-dividing, constructing structures or otherwise dealing in any manner with the suit properties known as Kwale/Diani Complex/423 & 424 pending hearing and determination of this Suit.e.That O.C.S - Kwale Police Station does ensure compliance with the orders above.f.That any other Orders that this Court may deem fit and justg.That costs of this Application be in cause. 5.The application was premised on the grounds, testimonial facts and the averments made out under the 20 Paragraphed supporting affidavit of Mohamed Baraka a resident in Nairobi County. The affidavit was together with three (3) annextures marked as “MB - 1 to 14”. The Deponent averred that: -a.He was a male adult of sound mind and a Director of the Applicant herein, duly authorized to swear the affidavit on behalf of the Applicant in support of the present application.b.He had the authority of the Applicant to swear the affidavit on its behalf and was well versed with the facts of the case and hence competent to depose to the matters herein. A copy of the Certificate of Incorporation of the Applicant was annexed and marked as "MB - 1."c.The Applicant was the legally registered proprietor of all those parcels of land registered as Kwale/Diani Complex/423 and 424 (Hereinafter referred to as “The Suit Properties”). Copies of the title deeds, certificates of official searches, and certified copies of the green cards for the suit properties were annexed and marked as "MB - 2a” and “b," "MB - 3a” and b," and "MB-4a” and b" respectively.d.The Applicant acquired registration of the suit properties in the year 1998 and since then, the Applicant's Director enjoyed quiet, peaceful, and uninterrupted possession of the properties until on or around the year 2024, when the 1st to 5th Defendants/Respondents, jointly through their agents, servants, employees, relatives, and proxies, trespassed and invaded the suit properties without any authority from the Applicant's Director and commenced excavating building blocks and harvesting sand for sale to neighbouring contractors and hardware stores. A bundle of photographs of the suit properties was annexed and marked as "MB-5."e.He further asserted that as a result of the excavations on the suit properties, the land has been wasted, its economic value has depreciated, and the illegal activities have posed an environmental hazard to the neighbourhood.f.The Respondents, their agents, proxies, and servants have ignored the Applicant Director's pleas to vacate and cease the excavations and mining activities on the suit properties, even despite the Applicant having held a meeting with the representatives of the 1st to 5th Defendants/Respondents and the Local Authorities with a view to resolving the impasse. Minutes of the meeting held on 15th December 2024 were annexed and marked as "MB - 6."g.Despite his complaints to the Local Administration through the Area Chief and Tiwi Police Station, the Applicant has not received any assistance to have the trespassers charged with the criminal offences of trespass and forcible detainer, and the 1st to 5th Defendants/Respondents had blatantly refused to vacate and cease the illegal excavations and mining activities on the suit properties.h.Also he engaged a Private Surveyor to confirm the beacons and boundaries of the suit properties at the behest of the 1st to 5th Defendants/Respondents, which prompted him to write an email dated 20th December 2024 to the County Commander, Kwale County, requesting security for the exercise to be conducted on 15th January 2025.i.On that day, the 1st to 5th Defendants/Respondents prevented the exercise from being conducted and insisted that any such exercise had to be conducted by a Government Surveyor and not a Private Surveyor. A copy of the email dated 20th December 2024 to the County Commander, Kwale County, was annexed and marked as "MB - 7."j.After the 1st to 5th Defendants/Respondents insisted on a Government Surveyor, he made the requisite payment with the Survey Office and booked a date for 3rd February 2025. The survey was conducted on the same day, and the boundaries were confirmed by the Government Surveyor, establishing that the excavation and mining of stones was within the suit properties.k.The 1st to 5th Defendants/Respondents prevented the Surveyor from fixing the beacons. Copies of payment receipts dated 15th January 2025 and a letter dated 28th January 2025 were annexed and marked as "MB - 8" and "MB - 9" respectively.l.As a result of the illegal activities on the suit properties, the development of the proposed road from Shelly Beach in Likoni to Diani Beach has stalled due to hostilities, threats on the persons involved in the survey exercise, and huge holes and bunkers that have been left exposed by the 1st to 5th Defendants/Respondents. Copies of letters dated 26th January 2022 and 1st March 2022 were annexed and marked as "MB - 10" and "MB - 11" respectively.m.In addition to refusing to vacate the suit properties, on 11th February 2025, the 1st to 5th Defendants/Respondents physically and violently caused a breach of peace by stopping the Applicant's Director from erecting a perimeter wall.n.The Respondents stole all the building materials in his presence, demolished part of the wall that had been erected, and further threatened him, his agents, and representatives with dire consequences if they continued to develop the suit properties, thereby denying them access, quiet and uninterrupted enjoyment of their land, and a source of earning their livelihood. A bundle of photographs of the Respondents and their agents disrupting and stopping the construction of the wall and the Respondents stealing cement was annexed and marked as "MB - 12."o.The incident of 11th February 2025 was reported at Kwale Police Station and recorded as Occurrence Book Number 28/11/2/2025, but no action had been taken against the Respondents and their agents for the criminal acts committed and threats to life made upon the Applicant's Director. A photograph of the OB Number from the Sub-County DCI Officer, Matuga, was annexed and marked as "MB - 13."p.Subsequently, he erected a perimeter wall and gate despite the Respondents' threats and resistance, and on 24th February 2025, the 1st to 5th Defendants/Respondents trespassed and demolished part of the wall and destroyed the gate. A bundle of photographs of the demolished wall and gate was annexed and marked as "MB - 14."q.As a law-abiding and peaceful citizen, he had utilized all avenues and exhausted all available mechanisms to have the 1st to 5th Defendants/ Respondents vacate the suit properties without resorting to the Court process, but the 1st to 5th Defendants/Respondents remained adamant and continued forcefully making use of the properties by excavating and mining, in addition to denying him access through threats, intimidation, and use of force.r.Unless the Court intervened, there was likely to be a breach of peace, as the 1st to 5th Defendants/Respondents had demonstrated an intention not to vacate the suit properties peacefully.s.Additionally, unless the 1st to 5th Defendants/Respondents were restrained by the Honourable Court, he was bound to suffer irreparable loss and damage should they be left to continue excavating and mining therein, as the Applicant was being denied use of its lands and the ability to derive livelihood from the same.t.Being the registered and lawful owner of the aforementioned land, the Respondents had no right to interfere with the quiet, uninterrupted, and peaceful enjoyment of the said properties by the Applicant.u.Temporary Orders of Injunction be issued restraining the 1st to 5th Defendants/Respondents with costs. III. The responses by the Defendants/Respondents to the Notice of Motion dated 26th February 2025 5.While opposing the application, the Defendants/Respondents filed Grounds of Opposition dated 30th March 2025. It was based on the following grounds that:-a).The suit is a non-starter and ought to be struck ought because the Plaintiff being a corporation failed to comply with the mandatory provisions of Order 4 Rule 4 of the Civil Procedure Rules, 2010 which state that:-Where the verifying affidavit shall be sworn by an officer of the company duly authorized under the seal of the company to do so.'b).The subject matter of this suit being the titles comprised in Kwale/Diani Complex/423 and 424 were the subject to litigation on their legality and legitimacy in the case of: “County Attorney of Kwale County & Others – Versus - National Land Commission & Others (Kwale ELC Petition NO. E003/2024)” as such making the issues in this suit sub judice and res judicata. IV. The Notice of Motion application dated 30th March 2025 6.The application was brought under the provisions of Sections 1A, 1B, 3A of the [Civil Procedure Act](/akn/ke/act/1924/3), Cap. 21, Order 4 Rule 4, Order 51 of the Civil Procedure Rules and all other enabling provisions. The Defendants/Applicants sought for the following orders: -a.Spent.b.Spentc.That the interim orders issued by Hon. Justice L.L Naikuni on the 28th day of February 2025 be set aside, discharged and or varied.d.That the suit be struck out.e.That in any event there be issued a temporary injunction restraining the Plaintiff by themselves, their agents, successors and or assigns from further dealing with the titles comprised in Kwale/Diani Complex/423 and 424 and interfering with the Defendants use and enjoyment of the same pending hearing and determination of the suit.f.That the costs be borne by the Plaintiff/Respondent. 7.The application was based on the grounds, testimonial facts and the averments made out under the 10 Paragraphed annexed supporting affidavit of JUMA ABDALLA AMRI a male adult residing in the Republic of Kenya. The affidavit was together with one (1) annexture marked as “JAA – 1”. The Deponent averred that: -a.He was the 1st Defendant/Respondent, a male adult of sound mind, residing in Diani within the Republic of Kenya, and well conversant with the facts of this matter.b.He was therefore competent to swear this affidavit in support of the present application.c.The ex - parte Orders issued on 28th February 2025 by Justice L. L. Naikuni ought to be stayed, set aside, and that the suit herein be struck out.d.It was a non-starter for failure to comply with the mandatory provisions of Order 4 Rule 4 of the Civil Procedure Rules, 2010 which required that where a Plaintiff was a corporation, the Verifying Affidavit must be sworn by an officer duly authorized under the seal of the company. The said Rule expressly provides:a.“Where the plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the company duly authorized under the seal of the company to do so.”b.The Defendant/Applicant submitted that the Plaintiff, being a corporate entity, failed to demonstrate such authorization at the point of filing suit, thus rendering the proceedings fatally defective.e.The substratum of this suit—being land titles registered as Kwale/Diani Complex/423 & 424, was already directly and substantially in issue in pending proceedings challenging their legality and legitimacy in the Petition “Kwale ELC Petition No. E003 of 2024) - the County Attorney of Kwale County & Others – Versus – National Land Commission”, thus rendering these proceedings “sub judice” and “res judicata”.f.As a direct consequence of the interim Ex - Parte orders, the Defendants/Applicants faced eviction from land which they asserted to have occupied peacefully and continuously since time immemorial, resulting in substantial prejudice prior to merits determination.g.The Defendants/Applicants had been in long-standing occupation and possession of the suit properties, and in order to vindicate and realize their asserted proprietorship rights, filed the Petition referenced in paragraph 2(b) herein.h.Despite the Plaintiff having full knowledge of the pendency of the said Petition, the Plaintiff elected not to seek joinder thereto as an Interested Party. Instead, the Plaintiff instituted this suit as a parallel proceeding, with the intention of obtaining interim Ex - Parte orders, which relief, would not likely have issued had the Plaintiff properly moved the Court within the Petition framework.i.He was aware that the Plaintiff misled the Honourable Court into issuing Ex - Parte orders which in effect sought to displace the Defendants/Applicants from land they had been openly using and occupying since time immemorial, even as they sought adjudication and validation of ownership through the said Petition.j.The Plaintiff had not approached the Court with clean hands, and that in view of its conduct which reflects non-disclosure and circumvention of existing proceedings, the Plaintiff had not met the threshold for grant or continuation of equitable and discretionary injunctive relief.k.Unless the interim Ex - Parte Orders were set aside and the suit struck out, there would be a duplicity and multiplicity of proceedings touching on the same subject matter, imposing parallel litigation and risk of inconsistent outcomes, in circumstances where the defenses herein mirror and substantially overlap with the issues framed for determination in the pending Petition.l.The Defendants/Applicants stood to suffer irreparable displacement, livelihood disruption, and attendant losses which had not been shown to be compensable by way of damages, unless the Court intervened by granting the reliefs sought in this application.m.It was in the interest of justice, fairness, procedural integrity, and orderly administration of legal process that the application be allowed. V. The responses by the Plaintiff/Respondent to the Notice of Motion dated 30th March 2025 8.The Plaintiff/Respondent opposed the Defendant’s application dated 30th March 2025 through a 11 Paragraphed Replying Affidavit sworn by Монамed N. Baraka on 23rd June 2025 where he stated that:-a).He was a male adult of sound mind and a Director of the Respondent herein, duly authorized to swear this affidavit on behalf of the Respondent.b).He had full authority of the Respondent to depose to this affidavit. Further, he was well acquainted with the facts of this matter, thereby rendering him competent to swear the present affidavit.c).He had read and carefully considered the Applicant’s application dated 30th March 2025 and he opposed it in its entirety, contending that it amounted to an abuse of the court process.d).The Applicants had failed to establish any lawful or sufficient basis to warrant the discharge, variation, or setting aside of the Orders issued by this Honourable Court on 28th February 2025.e).The Applicants had not demonstrated any form of legal or beneficial interest in the suit properties capable of grounding the reliefs sought, whereas the Respondent had already established that it was the legally registered proprietor and was in actual and physical possession of the subject properties.f).The mere existence of a pending matter, being ELC No. E003 of 2024, never constituted a lawful basis for vacating the orders issued by this Honourable Court.g).The Respondent was not a party to the said Petition, and that the issues raised in the current SUBPARA suit could only be ventilated and determined within these proceedings and not in a separate matter where the Respondent had not been enjoined.h).The issues of sub judice or res judicata never arose in the circumstances, as there had never been any previous proceedings between the parties herein that were heard and determined by a competent court.i).If indeed the said Petition had any bearing on the validity of the Respondent’s title documents, the Applicants ought to have enjoined the Respondent as a party.j).The Applicants’ failure to do so demonstrated bad faith, rendering the said Petition incompetent and liable to dismissal.k).The Respondent’s Director denied the Applicants’ allegations of possession of the suit properties and put the Applicants to strict proof thereof.l).He concluded by stating that the matters deponed to herein was true to the best of his knowledge, information and belief. VI. Submissions. 9.On 24th June, 2025 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 26th February, 2025 and 30th March 2025 respectively be disposed of by way of written submissions. 10.Pursuant to that, it was only the Plaintiff/Applicant who complied as by the time the Honourable Court was penning down the Ruling, the Honourable Court had not been able to access written submissions from the Defendants/Respondents. However, the court has determined the notice of motion application based on merit, the Statement of Grounds of Opposition and the law. A. The Written Submissions by the Plaintiff/Applicant to the Notice of Motion dated 26th February 2025 11.The Counsels for the Plaintiff/ Applicant filed their written submissions dated 4th August 2025. The Counsel confirmed that the present application for determination was the Notice of Motion dated 26th February 2025. Through the said motion, the Applicant sought interim injunctive relief pending the hearing and determination of the suit, and relies on the Supporting Affidavit sworn on the same date. 12.The Learned Counsel submitted that the 1st to 5th Defendants Respondents had not filed any Replying Affidavit in opposition to the application despite express directions of the Court issued on 24th June, 2025 and reiterated on 15th July, 2025 requiring them to respond. Instead, the Respondents elected to file Grounds of Opposition dated 30th March 2025, raising objections on the principles of sub judice, res judicata, and non-compliance with procedural requirements. 13.The Learned Counsel further emphasized that the core issues raised in the motion fell squarely within the well-established principles governing the grant of injunctions as set out in the jurisprudence. The Learned Counsel cited the leading authority of:- “Giella – Versus - Cassman Brown & Co. (1973) E.A 358” which sets out the three guiding tests for grant of injunctions, namely:i.existence of a prima facie case with a probability of success;ii.the inadequacy of damages as a remedy; andiii.the balance of convenience in cases of doubt. 14.The Learned Counsel placed reliance on the exposition of a prima facie case in the case of “Mrao Limited – Versus - First American Bank of Kenya Limited & 2 others [2003] eKLR”, where it was defined as a case that established an apparently infringed right requiring explanation or rebuttal by the opposing party. 15.It was submitted that the Applicant had tendered cogent documentary evidence demonstrating that it was the lawful registered proprietor of the suit properties. These were annexed as exhibits within the Supporting Affidavit marked as “MB 1”, “2a”, “2b”, “3a”, “3b”, “4a” and “4b”. 16.The Learned Counsel cited the provision of Section 26(1) of the [Land Registration Act](/akn/ke/act/2012/3) No. 3 of 2012 which recognizes a Certificate of Title as prima facie proof of absolute and indefeasible ownership, subject only to challenge on grounds of fraud, misrepresentation, or illegality. It was further contended that beyond holding title, the Applicant was in actual, physical and uninterrupted possession of the suit properties. 17.On the question of corporate authority under the provision of Order 4 Rule 4 of the Civil Procedure Rules, 2010, the Learned Counsel submitted that the omission to file a company resolution at this stage was not fatal. He relied on the persuasive authority of “Mwilu (Suing as director and shareholder of Mikululo Ranching) – Versus - Nduulu [2024] KEELC 4479 (KLR)”, where the Court affirmed that a resolution may be filed or ratified at any time before the suit was fixed for hearing. 18.The Learned Counsel also argued that the Respondents’ claims of the suit being “Sub – judice” and “Res judicata” under the provision of Sections 6 and 7 of the [Civil Procedure Act](/akn/ke/act/1924/3), Cap. 21 respectively were unsubstantiated. This was because no previous pleadings, proceedings, or judgments had been produced before this Court by the Respondents to enable verification of identity of issues and parties. On this point, reliance was placed on the decision of:- “Christopher Orina Kenyariri t/a Kenyariri & Associates Advocates – Versus - Salama Beach Hotel Limited & 3 others [2017] eKLR” which underscored that the doctrine of “Res – Judicata” was meant to bar re - litigation of issues which had already been heard and finally determined between the same parties by a competent Court. Accordingly, Counsel urged Court to find that that the Applicant had established a strong, uncontested, and legally protected ownership right, thereby satisfying the prima facie threshold. 19.The Counsel submitted that the Respondents’ actions prior to the filing of the suit had been destructive, high-handed, and prejudicial. In particular, it was deposed that the Respondents demolished the Applicant’s perimeter wall and gate and undertook excavation, mining, and illegal extraction of building materials on the suit properties. It was argued that these actions had significantly degraded the properties, leaving behind huge holes and bunkers that could not reasonably be restored to their original condition—even by remedial back-filling. 20.To buttress on this point, the Counsel cited the case of:- “Waithaka – Versus - Industrial and Commercial Development Corporation [2001] eKLR” where the Court recognized that an injunction may still issue even where damages could, in normal circumstances, suffice—particularly where the violator acts oppressively or high-handedly. It was submitted that the Respondents had not demonstrated any financial or practical capacity to repair, restore, or compensate the Applicant if their harmful activities continue unabated prior to trial. Therefore, the Learned Counsel urged that the Applicant faced irreparable loss that could not be adequately quantified or remedied by damages alone. 21.Having demonstrated the existence of a strong proprietary right and the risk of irreparable harm, counsel submitted that the balance of convenience tilts overwhelmingly in favor of preservation of the suit properties and protection of the Applicant’s possessory rights pending determination of the main suit. 22.In light of the foregoing, the Learned Counsel prayed that the motion dated 26th February 2025 be allowed as sought, to preserve the substratum of the dispute and prevent the suit from being rendered nugatory prior to its hearing on the merits. VI. Analysis and Determination 23.I have keenly considered the two ( 2 ) Notice of Motion applications dated 26th February 2025 and 30th March, 2025, the Defendants/Respondents’ Grounds of Opposition dated 30th March 2025, the written submissions dated 4th August 2025, cited authorities, the replies, the relevant provisions of the [Constitution](/akn/ke/act/2010/constitution) of Kenya, 2010 and the statures. 24.For the Honourable Court to arrive at an informed, fair and reasonable decision, it has framed the following five ( 5 ) issues for its determination. These are: -a.Whether the Plaintiff/Applicant complied with the mandatory provisions of Order 4 Rule 4 of the Civil Procedure Rules, 2010 regarding corporate authorization?b.Whether the suit is barred by the doctrines of sub judice and res judicata by virtue of the pendency of ELC Petition No. E003 of 2024.c.Whether the Plaintiff/Applicant has established the awarding of Injunctive orders.d.Whether the Notice of Motion application dated 30th March 2025 by the 1st to 5th Defendants/Applicants have made out a case of the review, setting aside, discharging and or varying of the orders of this Honourable Court issued on 2nd November, 2022?e.Who bears the cost of the two applications. Issue No. a). Whether the Plaintiff/Applicant complied with the mandatory provisions of Order 4 Rule 4 of the Civil Procedure Rules, 2010 regarding corporate authorization? 25.Under this sub – heading, the Honourable Court shall critically examine the legal rationale of the Corporate authorization of documents and/or pleadings for Corporate entities. The provision of Order 4 Rule 2 to 6 of the Civil Procedure Rules, 2010 provides as follows:-(2)The Plaint shall be accompanied by an affidavit sworn by the Plaintiff verifying the correctness of the averments contained in rule 1 (1) (f) above.(3)Where there are several plaintiffs, one of them, with written authority filed with the verifying affidavit, may swear the verifying affidavit on behalf of the others.(4)Where the Plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the company duly authorized under the seal of the company to do so.(5)The provisions of sub-rule (3) and (4) shall apply mutatis mutandis to Counter - Claims.(6)The court may of its own motion or on the application by the Plaintiff or the defendant order to be struck out any Plaint or Counter - Claim which does not comply with sub - rules (2), (3), (4) and (5) of this rule. 26.From the very onset, its significant to appreciate a few legal aspects which have a direct bearing to the instant case. Firstly, the issue of institution of legal actions in Court by parties. The provision of Section 2 of [Civil Procedure Act](/akn/ke/act/1924/3) states; “a suit” means all Civil Proceedings commenced in any manner prescribed.” Secondly, on the importance of a Board resolution while instituting any legal action in Court on behalf of a Corporate entities. I seek refuge from the provision of Order 4 Rule 4 of the Civil Procedure Rules, 2010 which is set in mandatory terms and the Applicant/Interested party has not complied. In the case of: “Affordable Homes Limited – Versus - Ian Henderson and 2 Others (2004) eKLR L. Njagi J. held:-“In the absence of a board resolution sanctioning the commencement of this action by the company, the company is not before court at all.” 27.Thirdly, the doctrine of Body Corporate and perpetual Succession and the lifting the veil. It is now well founded in the Company Law that an incorporated company is a separate and distinct legal personality away from its directors and shareholders. In the famous and celebrated cases of: “Salomon – Versus – Salomon & Company Limited (1896) ALL ER Rep 33” and “Foss – Versus - Harbottle (1843) 2 Hare 461” it was held that:-“The company and the company alone is the proper Plaintiff that can sue to redress the wrong.” 28.Further, in the case of:- “Shaw & Sons (Satford) Limited – Versus - Shaw Greer” L.J. held:-“A company is an entity distinct from its shareholders and its directors.’ 29.The Defendants/Respondents have contended that the suit is a non-starter and ought to be struck out on the ground that the Plaintiff failed to demonstrate that the deponent, Mohamed Baraka, was duly authorized under the seal of the company to swear the verifying affidavit on behalf of the Applicant company. 30.The Court has carefully examined the Verifying Affidavit accompanying the Plaint sworn at Diani on the 26th February 2025 by Mohamed Baraka a resident of Nairobi where he averred that:-1.That I am a Male adult of sound mind and a Director of the Plaintiff.2.That I have authority to swear this Affidavit on behalf of the Plaintiff herein hence competent to swear this Affidavit.3.That I have read and understood the contents of the Plaint filed herewith and do verify that the averments therein are true and correct.4.That I swear this Affidavit confirming the said contents.5.That what is deponed to herein is true and correct to the best of my knowledge, information and belief. 31.Additionally, the Court has also examined the Supporting Affidavit sworn by Mohamed Baraka on 26th February 2025. At paragraph 1 of the said affidavit, the deponent avers that he is a male adult of sound mind and a Director of the Applicant herein, duly authorized to swear the affidavit on behalf of the Applicant in support of the present application. Further, at paragraph 2, the deponent avers that he has the authority of the Applicant to swear the affidavit on its behalf and is well versed with the facts of the case. In support of this assertion, a Certificate of Incorporation was annexed and marked as "MB-1." However, the Court notes that while the deponent claims to be duly authorized, no Board Resolution or authorization under the seal of the company was annexed to demonstrate compliance with the express requirement of Order 4 Rule 4 of the Civil Procedure Rules, 2010. 32.Be that as it may, the herculean question that arises is whether this omission is fatal to the suit at this interlocutory stage. The Plaintiff/Applicant's counsel has submitted that the omission to file a company resolution at this stage is not fatal, relying on the case of “Mwilu (Suing as director and shareholder of Mikululo Ranching) (Supra)”, where the Court affirmed that a resolution may be filed or ratified at any time before the suit is fixed for hearing. From a legal view point, the Court fully agrees with this position. 33.While the provision of Order 4 Rule 4 is indeed a mandatory provision designed to ensure that corporate Plaintiffs act through properly authorized officers, the Courts have consistently held that procedural irregularities of this nature are curable and ought not to result in such draconian action of the striking out of a suit, particularly at an interlocutory stage where substantive rights have not yet been determined. In the famous case of:- “Microsoft Corporation – Versus - Mitsumi Computer Garage Limited [2001] eKLR”, Justice A. Ringera (as he then was) held that a suit instituted without proper authority of the company is incompetent. Similarly, in the case of:- “Bugerere Coffee Growers Limited – Versus - Sebaduka & Another [1970] EA 147”, it was held that where proceedings are instituted without a company resolution, they are null and void ab initio. The Court of Appeal in the case of:- “Assia Pharmaceuticals – Versus - Nairobi Veterinary Centre Limited [2007] eKLR” reiterated that a company, being a separate legal entity, can only act through resolutions of its directors and shareholders. This defect is not a mere technicality curable under the provision of Article 159 (2)(d) of the [Constitution](/akn/ke/act/2010/constitution) of Kenya, 2010. As held in the case of:- “Spire Bank Limited – Versus - Land Registrar & 2 Others [2019] eKLR”, the Court cannot sanitize a suit that is fundamentally defective for want of authority. The Plaintiff’s suit is therefore incompetent, and the verifying affidavit fatally defective. The legal consequence of this is fatal to the Plaintiff's suit. In the case of “Malta Imports Limited – Versus - W. M. Spry & another [2001] KLR 512”, the Court of Appeal held:-“The requirement of a verifying affidavit is not a mere technicality… if the affidavit is not sworn by a competent person, then the Plaint is incompetent and must be struck out.” 34.Similarly, in the case of:- “Krystalline Salt Limited – Versus - Krystalline Solutions Limited & 4 others [2019] eKLR”, the Court emphasized that a Plaint filed without a properly sworn verifying affidavit is incurably defective. 35.In the case of “Owners of Motor Vessel "Lillian S" – Versus - Caltex Oil (Kenya) Ltd [1989] KLR 1”, the Court of Appeal held that:“The object of the rules of procedure is to ensure the proper and orderly administration of justice and their observance should never be allowed to defeat substantial justice." 36.Additionally, in the case of:- “Kenyatta University – Versus - Mbui [2014] eKLR”, the Court held that:-“Courts should guard against sacrificing substantive justice at the altar of procedural technicalities, especially where such defects are capable of being cured." 37.However, in the present case, fundamentally, I have noted that the defect complained of is procedural in nature. It is capable of being cured by the filing of a Board Resolution or other proper authorization. The Applicant has demonstrated through the Certificate of Incorporation (marked as “MB – 1”) that it is a duly incorporated company, and the deponent has identified himself as a Director with authority to swear the affidavit. 38.In the circumstances, this Court finds that it would be unjust and disproportionate to strike out the suit on this technical ground at this stage. Suffice it to say that, the Plaintiff/Applicant is hereby directed to file proper authorization of the two directors under the seal of the company within thirty (30) days from the date of this Ruling to regularize the position. 39.In a nutshell, although the Court finds that while there has been non-compliance with the provision of Order 4 Rule 4 of the Civil procedure Rules, 2010, the defect is not fatal at this stage. Indeed, its is curable. In the interest of Natural Justice, Equity and Conscience, the Plaintiff/Applicant is accorded an opportunity to cure the defect by filing proper authorization within the stipulated period. Issue No. b). Whether the suit is barred by the doctrines of sub judice and res judicata by virtue of the pendency of ELC Petition No. E003 of 2024. 40.Under this Sub – heading, the issue for determination is whether the present suit offends the doctrines of “Sub – Judice” and “Res - Judicata” by virtue of the pendency civil suit of:- “ELC Petition No. E003 of 2024 (County Attorney of Kwale County & Others – Versus - National Land Commission & Others)”. 41.The Black’s law Dictionary 10th Edition defines “Res - Judicata” as:-“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”The doctrine of “Res - judicata” is codified at Section 7 of the [Civil Procedure Act](/akn/ke/act/1924/3), Cap. 21 which provides as follows: -“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation. (2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation. (4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation. (5)—Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.Explanation. (6)—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 42.For a suit to be declared res-judicata, the following must be proved;(i)The former suit must have been decided.(ii)The competence of a court which decides the former suit must be determined irrespective of any provision as to right of appeal.(iii)The former suit must have been alleged by one party and denied or admitted expressly or impliedly by the other party.(iv)Any matter which might and ought to have made a ground of defence or attack in the former suit shall be deemed to have been directly and substantially in issue in the former suit.(v)The parties litigating must be the same. 43.For res judicata to apply in a particular matter, there must have been a previous suit in which the matter was in issue; the parties in both matters must be the same or litigating under the same title; the previous matter must have been heard and determined by a competent court and the issue is raised once again in the new suit. See “John Florence Maritime Services Limited & another – Versus - Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR”. Res judicata operates as a complete estoppel against any suit that runs afoul of it. See “Maithene Malindi Enterprises Limited – Versus - Kaniki Karisa Kaniki & 2 others [2018] eKLR”. 44.Res judicata operates as a bar to subsequent proceedings involving same issue which had been finally and conclusively decided by a competent court in a prior suit between the same parties. In case of:- “John Florence Maritime Services Limited (Supra)” the Court of Appeal stated:-“…. Res judicata is a subject which is not at all novel. It is a discourse on which a lot of judicial ink has been spilt and is now sufficiently settled. We therefore do not intend to re-invent any new wheel. We can however do no better than reproduce the re-indention of the doctrine many centuries ago as captured in the case of Henderson v Henderson [1843] 67 ER 313: -“…..where a given matter becomes the subject of litigation in and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time ….”…. Simply put res judicata is essentially a bar to subsequent proceedings involving same issue as had been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives.” 45.The Defendants/Respondents have contended that the subject matter of this suit, being the titles comprised in Kwale/Diani Complex/423 and 424, is already under litigation in the said Petition challenging their legality and legitimacy, and as such, the issues in this suit are sub judice and res judicata. 46.On the other hand, the concept of “sub – judice” is one that bars a Court from trying a matter that is in one way or other before another Court of competent jurisdiction by way of a previously instituted suit as long as it is between the same parties canvassing it under the same title. In essence, if both Courts were to proceed with the matters on merit and determine them, without deference to the former, they would arrive at similar or different results on the same rights claimed by the same parties and there would be a duplication of the reliefs or a conflict of them, which would be a recipe for confusion and chaos in the legal system. In the alternative of the scenario immediately above, where one of the Courts determined the matter before it the one still pending would be res judicata. It is governed under the provision of Section 6 of the [Civil Procedure Act](/akn/ke/act/1924/3), Cap. 21 which bars any court from engaging in matters sub judice before them. It provides as follows: -“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 47.In the case of:- “Republic – Versus - Paul Kihara Kariuki, Attorney General & 2 others Ex - Parte Law Society of Kenya [2020] eKLR” Justice Mativo (as he then was) stated as follows: -“………there exists the concept of sub judice which in Latin means “under Judgement.” It denotes that a matter is being considered by a Court or Judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding and such order can be made at any stage.” 48.The import of the concept is that as soon as the Court finds a matter sub - judice it stays immediately the proceedings until the prior one is heard and determined. On this point, the Supreme Court of Kenya in “Kenya National Commission on Human Rights – Versus - Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)”, stated therein as follows: -“(67)The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 49.In the present case, the Defendants/Respondents have alleged that ELC Petition No. E003 of 2024 is pending and challenges the legality and legitimacy of the titles Kwale/Diani Complex/423 and 424. However, the Court notes the following critical facts:a)The Plaintiff/Respondent in this suit is not a party to the said Petition No. E003 of 2024;b)The Defendants/Respondents have not produced any pleadings, proceedings, or court documents from the said Petition to enable this Court to verify the identity of issues and parties;c)The parties to the said Petition are the County Attorney of Kwale County & Others and the National Land Commission & Others, which are entirely different from the parties in the present suit. 50.In the present case, the Defendants/Respondents have failed to discharge this burden. They have not produced any evidence to show that the Plaintiff/Applicant is a party to the said Petition or that the issues in both proceedings are identical. Furthermore, the Plaintiff/Applicant's counsel has correctly submitted that even if the said Petition challenges the validity of the titles, the Plaintiff, not being a party to those proceedings, cannot have its rights determined in absentia. The Plaintiff is entitled to protect its registered interests in these proceedings. 51.From the foregoing surrounding facts and inferences, the Honourable Court holds that I hold that, in the present case, the Defendants/Respondents have not demonstrated that there has been any previous determination of the issues between these parties. The mere pendency of another suit does not trigger the doctrine of res judicata. Thus, the doctrines of “Res Judicata” nor “Sub – Judice” have no application in the present case. Issue No. c). Whether the Plaintiff/Applicant has established the awarding of Injunctive orders. 52.The Under this sub – heading the main substratum of the application is on whether to grant or not the interim injunctive orders. The application herein is premised under Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law cited. It provides as follows: -Order 40, Rule 1Where 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; orb)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. 53.These issues have been submitted so adequately by the Learned Counsel for the Plaintiff/Applicant herein. Nonetheless, in addition, it follows, therefore, that the principles applicable in an application for an injunction were laid out in the celebrated case of “Giella – Versus - Cassman Brown (Supra)” set the following conditions for the grant of a temporary injunction:-“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 adequately be compensated by an award of damages. Thirdly if the court is in doubt it will decide an application on the balance of convenience.” 54.As such, the three (3) 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 position has been reiterated in numerous decisions from Kenyan courts and more particularly in the case of:- “Nguruman Limited - Versus - Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR” where the Court of Appeal held that:-“in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a). establishes his case only at a prima facie level, b). demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour. These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states 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”. 55.Further, in the case of:- “Kenya Commercial Finance Co. Limited – Versus - Afraha Education Society [2001] Vol. 1 EA” (the court quoted in the case of: “Nguruman Limited (Supra)”, that the triple requirements in an interlocutory injunction application are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is instructive to note 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. Consequently, the parties ought to, first, establish a prima facie case. In dealing with the first condition of “prima facie case”, the Honorable Court guided by the definition melted down in the case of “MRAO Limited – Versus - First American Bank of Kenya Ltd (Supra)”, whereby it stated:-“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” 56.Similarly, under the same breathe, Court in the case of:- “Mbuthia – Versus - Jimba credit Corporation Limited 988 KLR 1”, 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.” 57.Additionally, in the case of:- “Edwin Kamau Muniu – Versus - Barclays Bank of Kenya Limited” the court stated 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.” 58.In the present case, the Applicant has produced the following evidence in support of its claim:a)A Certificate of Incorporation marked as "MB-1";b)Copies of title deeds for Kwale/Diani Complex/423 and 424 marked as "MB-2a and b";c)Certificates of official searches marked as "MB-3a and b";d)Certified copies of green cards marked as "MB - 4a” and “b";e)Photographs of the suit properties showing excavation activities marked as "MB - 5";f)Minutes of meeting held on 15th December 2024 marked as "MB-6";g)Email to County Commander dated 20th December 2024 marked as "MB - 7";h)Payment receipts and letter from Survey Office marked as "MB-8” and “MB - 9";i)Letters regarding road development marked as "MB -10” and “MB - 11";j)Photographs of demolished wall and stolen materials marked as "MB -12” and “MB-14";k)Photograph of OB Number marked as "MB - 13". 59.From a legal point of view, the provisions of Article 40 of the [Constitution](/akn/ke/act/2010/constitution) of Kenya, 2010, Sections 24, 25, 26 (1) of the [Land Registration Act](/akn/ke/act/2012/3) No. 3 of 2012 vests proprietary and indefeasible rights, interest and title to a registered proprietor of land in Kenya. Section 26 ( 1 ) provides:“A certificate of title shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme." 60.The Applicant has produced valid title documents showing that it is the registered proprietor of the suit properties. These documents constitute prima facie evidence of ownership and have not been challenged on any of the grounds specified in the provision of Section 26 (1) of the [Land Registration Act](/akn/ke/act/2012/3). Furthermore, the Applicant has produced documentary and photographic evidence showing:a)That the Respondents have invaded the suit properties and are conducting large-scale excavation and mining activities;b)That the Respondents demolished the Applicant's perimeter wall on two occasions (11th February, 2025 and 24th February, 2025);c)That the Respondents stole building materials and used violence and threats;d)That the matter was reported to the police (OB No. 28/11/2/2025);e)That efforts to resolve the matter through local administration have been unsuccessful;f)That a Government Surveyor confirmed the boundaries and that the excavation activities are within the Applicant's properties. 61.The Defendants/Respondents, on the other hand, have not challenged this position. They have not filed any Replying Affidavit disputing these facts or demonstrating any legal or beneficial interest in the suit properties. Their defense is premised solely on procedural objections and the alleged pendency of another suit. 62.In the case of:- “National Bank of Kenya Limited – Versus - Pipeplastic Samkolit (K) Limited [1996] eKLR”, the Court held:-“Where a Plaintiff produces a Certificate of Title in his favour and there is no serious challenge to the validity of that title, a prima facie case is established." 63.Therefore, the Honourable Court is fully satisfied that the Applicant has established a strong prima facie case with a probability of success. The Applicant has demonstrated legal ownership through valid title documents, actual possession prior to the invasion, and ongoing violation of its property rights by the Respondents. 64.On the second issue whether the Applicant will suffer irreparable harm which cannot be adequately compensated by an award of damages, the Applicants must demonstrate that it is a harm that cannot be quantified in monetary terms or cannot be cured. The evidence before this Court shows the following:a)The Respondents have conducted large-scale commercial excavation and mining activities on the suit properties, extracting building blocks and sand for sale;b)As a result of these activities, the land has been significantly degraded with huge holes and bunkers that cannot be easily restored;c)The economic value of the properties has depreciated;d)The illegal activities have created environmental hazards to the neighbourhood;e)The development of the proposed road from Shelly Beach to Diani Beach has been hampered by the holes and bunkers left by the Respondents;f)The Respondents have twice demolished the Applicant's perimeter wall and have used violence, threats, and intimidation;g)The Respondents have prevented survey exercises and refused to vacate despite interventions by local administration and police. 65.The nature of the damage described above is not easily quantifiable in monetary terms. The degradation of land through excavation and mining creates permanent physical changes that cannot be adequately remedied by an award of damages. 66.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.” 67.Furthermore, the Respondents have not demonstrated any financial capacity to compensate the Applicant for the damage caused. There is no evidence that they have the means to restore the land to its original condition or to pay adequate compensation. 68.The Court also notes the high-handed and violent manner in which the Respondents have conducted themselves, including:a)Demolishing the Applicant's wall twice;b)Stealing building materials;c)Making threats to life;d)Preventing lawful survey exercises;e)Defying interventions by local authorities and police. 69.Such conduct demonstrates a blatant disregard for the rule of law and the rights of others, and militates in favour of granting injunctive relief. Additionally, the Applicant has been effectively denied access to and use of its own land. The right to property is a constitutional right protected under Article 40 of the [Constitution](/akn/ke/act/2010/constitution) of Kenya, 2010. The continuing violation of this right constitutes irreparable harm that cannot be adequately compensated by damages alone. 70.Therefore, the Court finds that damages would not be an adequate remedy in the circumstances. The Applicant faces irreparable loss in the form of permanent degradation of the land, loss of use and enjoyment, environmental damage, and violation of constitutional rights. The Respondents have not demonstrated capacity to compensate or restore the property. 71.On the third limb on granting an injunction – “the balance of convenience”. In the case of “Pius Kipchirchir Kogo (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”. 72.Further, in the case of:- “Paul Gitonga Wanjau – Versus - Gathuthis Tea Factor Company Limited & 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.” 73.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.” 74.In determining the balance of convenience, the Court must consider which party would suffer greater hardship if the injunction is granted or refused. If the injunction is granted:a)The Respondents will be restrained from further excavation and mining activities on the suit properties;b)The Respondents will be prevented from further degrading the land;c)The status quo will be preserved pending the hearing and determination of the suit;d)The Respondents' rights, if any, can be determined at trial. 75.If the injunction is refused:a)The Applicant will continue to be denied access to and use of its registered land;b)The Respondents will continue to excavate and mine, causing further irreversible damage to the land;c)The substratum of the suit may be destroyed, rendering any future judgment nugatory;d)The environmental hazard to the neighbourhood will continue and worsen;e)The Applicant's constitutional right to property will continue to be violated;f)The development of the proposed public road will continue to be hampered. 76.The Court notes that the Respondents claim to have been in occupation of the land "since time immemorial." However, they have produced no evidence of any legal or beneficial interest in the property. They have not produced:a)Any title documents;b)Any lease or tenancy agreements;c)Any adverse possession claims properly pleaded and supported;d)Any receipts for rent or rates paid;e)Any documentation showing improvements made to the land. 77.In contrast, the Applicant has produced clear documentary evidence of registered ownership since the year 1998 and evidence of possession until the recent invasion by the Respondents. Furthermore, the Respondents' activities are not merely residential occupation but large-scale commercial exploitation of the land through excavation and sale of building materials. This is not a case of indigent persons occupying land for shelter, but rather commercial operators engaged in destructive mining activities. 78.Given that the Applicant has produced empirical documentary evidence of ownership while the Respondents have produced none, the balance of convenience clearly favours the preservation of the status quo by restraining the Respondents from further interference with the property. 79.Additionally, granting the injunction serves the public interest by:a)Protecting the environment from further degradation;b)Enabling the development of the proposed public road;c)Upholding the integrity of the land registration system;d)Preventing a breach of the peace. 80.In the long run, the Honourable Court finds that the balance of convenience tilts overwhelmingly in favour of the Plaintiff/Applicant. Refusing the injunction would result in continued irreversible damage to the property, violation of the Applicant's constitutional rights, and potential destruction of the substratum of the suit, whereas granting the injunction merely preserves the status quo pending trial. Issue No. d). Whether the Notice of Motion application date 30th March 2025 by the 1st to 5th Defendants/Applicants have made out a case of the review, setting aside, discharging and or varying of the orders of this Honourable Court issued on 2nd November, 2022? 81.Under this Sub – heading, the main substratum is on causing the Honourable Court to consider review, setting aside, varying and/or discharging its orders. The application by the 1st Defendant/Applicant was brought under the provisions of Section 80 of the [Civil Procedure Act](/akn/ke/act/1924/3), Cap. 21 and Order 45 Rule 1 of the Civil Procedure Rules, 2010. These provisions provide as follows: - The principles governing review of Judgment are found in Section 80 [Civil Procedure Act](/akn/ke/act/1924/3) Cap 21 and Order 45(1) and (2) of the Civil Procedure Rules, 2010 and an appeal has been preferred. Therefore, this Honorable Court finds it significant to critically examine the provisions for review, setting aside and/or varying Court orders. These are found mainly under the provisions of law already stated herein. A clear reading of these provisions indicates that Section 80 is on the power to do so while Order 45 sets out the rules on doing it. 82.The provision of Section 80 of the [Civil Procedure Act](/akn/ke/act/1924/3) Cap 21 provides as follows: -“Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” 83.While the provision of Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -“1.(1)Any person considering himself aggrieved—a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” 84.Broadly speaking, in the case of “Republic – Versus - Public Procurement Administrative Review Board & 2 others [2018] e KLR” it was held: -“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.” 85.From the stated provisions, it is quite clear that they are discretionary in nature. Thus, the unfettered discretion must be exercised judiciously, not capriciously and reasonably. To qualify for being granted the orders for review, varying and/or setting aside a Court order under the above provisions to be fulfilled, the following ingredients, jurisdiction and scope are required.a.There should be a person who considers himself aggrieved by a Decree or order;b.The Decree or Order from which an appeal is allowed but from which no appeal has been preferred;c.A decree or order from which no appeal is allowed by this Act;d.There is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or the order made; ore.On account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree or order.f.The review is by the Court which passed the decree or made the order without unreasonable delay. 86.In the case of “Sese (Suing as the Administrator of the Estate of the Late Shali Sese) – Versus - Karezi & 8 others (Environment and Land Constitutional Petition 32 of 2020) [2023] KEELC 17427 (KLR)” held that:-“The power of review is available only when there is an error apparent on the face of the record. Indeed, this Court emphasizes that a review is not an appeal. The review must be confined to error apparent on the face of the record and re – appraisal of the entire evidence or how the Judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is permissible.” 87.In the present case, the Court has found that:a)The Applicant has established a prima facie case with a probability of success;b)Damages would be inadequate and the Applicant faces irreparable loss;c)The balance of convenience favours the Applicant;d)There has been no demonstration of non-disclosure or suppression of material facts by the Applicant. 88.The Respondents' application to set aside the ex parte orders is premised on the same grounds as their opposition to the main application, namely:a)Non-compliance with Order 4 Rule 4 of the Civil Procedure Rules, 2010 (which the Court has found to be curable);b)Sub judice and res judicata (which the Court has found not to apply). 89.Having rejected these grounds, the Court finds no basis to set aside the ex parte orders. However, now that the matter has been argued inter partes and all parties have had an opportunity to be heard, it is appropriate to confirm the orders on an inter partes basis pending the hearing and determination of the suit. 90.The Court finds that there is no basis to set aside, discharge, or vary the ex parte orders issued on 28th February 2025. The orders are hereby confirmed on an inter partes basis pending the hearing and determination of the suit. 91.Having determined all the issues in favour of the Plaintiff/Applicant, and having found that the Applicant has satisfied all three tests for the grant of an injunction as set out in the case of “Giella v. Cassman Brown & Co. Ltd (supra)”, the Court is satisfied that the prayers sought in the Notice of Motion application dated 26th February 2025 ought to be granted. On the contrary, the Honourable Court finds that the Notice of Motion application dated 30th March 2025 by the Defendants/Applicants seeking to set aside the ex parte orders and strike out the suit has no merit. It must fail for the reasons stated above. Issue No e). Who will bear the Costs of the Notice of Motion application dated 26th February 2025 and 30th March 2025 92.It is now well established that the issue of Costs is a discretion of the Court. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 (1) of the [Civil Procedure Act](/akn/ke/act/1924/3), Cap. 21 holds that costs follow the events. By event it means the results or outcome of the legal action or proceedings. See the decisions of Supreme Court “Jasbir Rai Singh – Versus - Tarchalan Singh” eKLR (2014) and Cecilia Karuru Ngayo – Versus - Barclays Bank of Kenya Limited, eKLR (2014) where courts held:-“The basic rule on attribution of Costs is that Costs follow the events…..it is well recognized that the principles costs follow the events is not to be used to penalize the losing party rather it is for the compensating the successful party for the trouble taken in defending the case.. 93.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. 94.In the instant case, the Plaintiff/Applicant has succeeded in the Notice of Motion application dated 26th February 2025 while the 1st to 5th Defendants/respondents have failed in their Notice of Motion application dated 30th March 2025. Accordingly, the Court finds that the 1st to 5th Defendant/Respondents shall bear the costs of both applications. VII. Conclusion & Disposition 95.Ultimately, having caused the indepth and expansive analysis to the framed issues, the Honorable Court has carefully considered and weighed the conflicting parties’ interest as regards to the Preponderance of Probabilities and balance of convenience. Thus, it has specifically made the following orders: -a.That the Notice of Motion application dated 26th February 2025 be and is hereby found to be meritorious and hence allowed.b.That the ex - parte orders issued on 28th February 2025 be and are hereby confirmed and shall continue to operate on an inter partes basis.c.That temporary Orders of Injunction be and are hereby issued restraining the 1st to 5th Respondents, whether by themselves, their agents, servants, employees, relatives, proxies, or anyone acting on their behalf or under their instruction, from trespassing upon the suit properties known as Land Parcel Nos. Kwale/Diani Complex/423 & 424; excavating, mining, or extracting building blocks, sand, stones, or any other materials from the suit properties; fencing, constructing structures, or making any improvements on the suit properties; accessing, occupying, or remaining on the suit properties; selling, alienating, transferring, subdividing, or otherwise dealing in any manner with the suit properties; interfering with the Plaintiff/Applicant's quiet and peaceful possession and enjoyment of the suit properties; threatening, intimidating, harassing, or using violence against the Plaintiff/Applicant, its directors, officers, agents, employees, or representatives; demolishing or damaging any structures, walls, gates, or improvements erected or to be erected by the Plaintiff/Applicant on the suit properties; Otherwise dealing with or interfering with the suit properties in any manner whatsoever pending the hearing and determination of this suit.d.That the Officer Commanding Station (O.C.S.), Kwale Police Station, be and is hereby directed to ensure compliance with the above orders and to provide security to the Plaintiff/Applicant to enable it to access and use the suit properties without interference.e.That the 6th Respondent, National Environment Management Authority (NEMA), be and are hereby directed to take immediate action to stop the illegal excavation and mining activities on the suit properties, which activities constitute environmental degradation and a health hazard to the neighbourhood, pending the hearing and determination of this suit.f.That the Plaintiff/Applicant be and is directed to file and serve a Board Resolution of the Directors under proper authorization under the seal of the company demonstrating compliance with Order 4 Rule 4 of the Civil Procedure Rules, 2010 within thirty (30) days from the date of this Ruling.g.That the Notice of Motion application dated 30th March 2025 by the 1st to 5th Defendants/Applicants seeking to stay, set aside, discharge, or vary the ex parte orders issued on 28th February 2025 and to strike out the suit be and is hereby dismissed for lack of merit.h.That the prayer for a temporary injunction restraining the Plaintiff by themselves, their agents, successors, and assigns from further dealing with the titles comprised in Kwale/Diani Complex/423 and 424 is hereby DISMISSED as the Defendants/Applicants have failed to establish any legal or beneficial interest in the suit properties or any basis for such an order.i.That the main suit shall proceed to hearing on the merits and is hereby fixed for Mention on 16th April, 2026 for conducting of Pre – Trial Conference in accordance with the provision of Order 11 of the Civil procedure Rules, 2010. There shall be hearing on 29th September, 2026 preferably through Physical Means.j.That the costs of the Notice of Motion applications dated 26th February, 2025 and 30th March, 2025 shall be borne by the 1st to 5th Defendants/Respondents to be awarded to the Plaintiff/Applicant herein. It is so ordered accordingly. **RULING DELIVERED THROUGH THE MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT KWALE THIS 29 TH DAY OF JANUARY 2026.****…………………****HON. MR. JUSTICE L. L. NAIKUNI****ENVIRONMENT AND LAND COURT AT KWALE** Ruling delivered in the presence of:a). Mr. Daniel Disii the Court Assistant.b). M/s. Washalla Advocate holding brief for Mr. Mungai Kamau Advocate for the Plaintiff/Applicant.c). M/s. Moyae Advocate for the 6th Defendant/Respondent.No appearance for the 1st, 2nd, 3rd, 4th & 5th Defendants/Respondents.