S/O & 22 others v Kanyi & another (Environment & Land Case E065 of 2024) [2025] KEELC 5200 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside ex parte orders that had lapsed due to improper service, confirming a possessor of disputed land can keep occupying it pending full trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st Defendant/Applicant has made out a case for the varying, reviewing and setting aside of ex parte injunctive orders issued on 15th July, 2024 and to vacate the same as they have automatically lapsed for failure to effect service within the mandatory period of 3 days from the date of issue.
- 2.Whether prayers numbers 3, 4 and 5 in the Notice of Motion application dated 24th July, 2024 can be issued in the interim.
- 3.Who will bear the costs of the Notice of Motion application dated 24th July, 2024.
Key legal issues
#Whether the ex parte interim injunction of 15th July 2024 should be varied, reviewed or set aside
Yes; the Applicant was in possession at the time the interim orders were made and the orders were varied to allow her continued possession without construction or permanent development.
The court found the Applicant in possession of the suit property on which she had cultivated wheat and that she was in possession when the Plaintiff's application was determined. Since a party in possession cannot be restrained from occupying the land, the interim injunction was varied to preserve the property, permitting possession but restraining construction or permanent developments pending hearing of the suit.
Whether the OCS Nyali Police Station should be ordered to remove security guards and occupiers so the Applicant can occupy the property (Prayer 3)
Granted in the interim on the strength of the Applicant's evidence of possession, transfer, restriction and payment of land rates.
The Applicant demonstrated current possession, occupation following a lawful transfer, a restriction placed on the property since January 2023, and consistent payment of land rates to the County Government of Mombasa. On this material the court found it appropriate to grant the prayer in the interim without subjecting the evidence to a full hearing.
Whether the court should order DCI investigation of the Power of Attorney (Prayer 4)
Refused; the court will not descend into the arena and the Applicant failed to lay a firm legal and factual foundation.
Invoking Sections 107, 108 and 109 of the Evidence Act on burden of proof, the court held that in an adversarial system parties must adduce their own evidence; the court is an umpire. Orders that may intrude on constitutionally protected rights such as bodily integrity and privacy require a firm foundation, which was absent. The Applicant may also seek the DCI's assistance without a court order.
Legal principles established
#- A party already in possession of disputed property cannot be restrained from entering, using or occupying the land, but can be restrained from developing, transferring, leasing, charging, letting, assigning or dealing with the land adversely pending determination of the ownership dispute.
- A court in an adversarial system should not descend into the arena by seeking evidence for parties; orders potentially intruding on constitutionally guaranteed rights require a firm legal and factual foundation.
- Costs follow the event under Section 27(1) of the Civil Procedure Act, and the successful party is typically entitled to costs unless there are compelling reasons to decide otherwise.
Court orders
#- 1.The Notice of Motion application dated 24th July, 2024 is found to be partially merited and allowed with respect to prayers No. 2 and 3 without costs.
- 2.An order varying, reviewing and setting aside the orders issued ex parte on 15th July, 2024 and vacating the same as they have automatically lapsed for failure to effect service upon the 1st Defendant/Applicant within the mandatory period of 3 days from the date of issue.
- 3.An order directing the OCS Nyali Police Station to effect the removal of all security guards deployed to the suit property and the people in illegal occupation of the suit property CR NO. 37967, and ordering the 1st Defendant/Applicant to immediately occupy the same pending hearing and determination of the suit.
- 4.Mention of the matter on 24th July, 2025 before Justice Hon. Olola or any other Judge sitting at the ELC Mombasa for further directions.
- 5.There shall be no orders as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 63(e) and 80(a),(b) of the Civil Procedure Act Cap. 21 and Order 51 Rule 1, Order 45 Rule 2(1), Order 10 Rule 11 of the Civil Procedure Rules 2010
Relief refused
#Prayer 4: order directing DCI Mombasa to investigate the Power of Attorney dated 5th June, 2024 and other documents used by the Plaintiff to claim ownership
The Applicant failed to lay a firm legal and factual foundation for the orders; the DCI may investigate without a court order.
Prayer 5: declaration that the invasion of the suit property by the Plaintiff and her agents was unlawful
It is a permanent order which can only issue after evidence has been adduced at a full hearing.
Costs of the application
The court exercised its discretion not to award any costs.
Costs
There shall be no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a party who is already in possession of disputed property cannot efiectively be restrained from entering, using or occupying the land. However, such person can be restrained from developing, transferring, leasing, charging, letting, assigning or dealing with the land in an adverse manner pending the hearing and determination of the ownership dispute.
That an order do and is hereby issued varying, reviewing and setting aside the orders issued ex – parte on 15th July, 2024 by this Honourable Court and to vacate the same as they have automatically lapsed for failure to efiect service upon the 1st Defendant/Applicant within the requisite mandatory period of 3 days from the date of issue.
That an order do and is hereby issued directing the OCS Nyali Police Station to efiect the removal of all the security guards deployed to the suit property and the people who were in illegal occupation of the suit property CR NO. 37967 and to order the 1st Defendant/ Applicant to immediately occupy the same pending hearing and determination of this suit.
That there shall be no orders as to costs.
Issues in the judgment
#The judgment inconsistently records the date of the Applicant's alleged lawful transfer, stating 13th September, 2024 in a matter where ex parte orders had already issued on 15th July, 2024 and the Applicant deponed to placing a restriction in January 2023.
Costs provision is cited as the Proviso of Section 27(1) of the 'Civil Procedure Rules Cap. 21' although Section 27 is a provision of the Civil Procedure Act.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "S/O & 22 others v Kanyi & another (Environment & Land Case E065 of 2024) [2025] KEELC 5200 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5200/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.