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ELCPartially AllowedMSA. ELCE. E087 OF 2025 (OS)

Charo & 9 others v Ebrahim & another (Enviromental and Land Originating Summons E087 of 2025) [2026] KEELC 3307 (KLR)

Environment and Land Court
26 May 2026
1,968 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Mombasa occupants facing eviction won a court order protecting their occupation until their adverse possession land ownership claim is fully heard.

What this practically means

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Executive summary

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By a Notice of Motion dated 30th July 2025, ten applicants sought an interlocutory injunction restraining the respondents from evicting them from, or interfering with their occupation of, Plot No.16807/1/MN (CR.47008) at Kongowea, Mombasa, pending the hearing of their Originating Summons in which they claim ownership of portions of the suit land by adverse possession, having allegedly occupied and developed it for periods ranging from 15 to 35 years. The 1st Respondent, the registered proprietor since 2009, opposed the motion, asserting the land was vacant until recent trespass and that the application was frivolous and an abuse of process. The 2nd Respondent, the County Government of Mombasa, filed Grounds of Opposition contending that the court lacked jurisdiction because grievances over enforcement notices must first be appealed to the County Physical and Land Use Planning Liaison Committee under Section 72(3) of the Physical and Land Use Planning Act, 2019. The court rejected the jurisdictional objection, holding that the applicants' true claim - declaration of ownership by adverse possession under the Limitation of Actions Act, Cap 22 - can only be determined by the Environment and Land Court. Applying the Giella -v- Cassman Brown principles, as elaborated in Mrao -v- First American Bank and Nguruman Limited -v- Jan Bonde Nielsen, the court found a prima facie case with probability of success, noting the 1st Respondent admitted the applicants were on the land, with the duration of occupation a matter for trial. The balance of convenience favoured the applicants, who faced eviction. The motion was allowed in terms of prayer (c), with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court lacks jurisdiction by reason of the doctrine of exhaustion under Section 72(3) of the Physical and Land Use Planning Act, 2019
  2. 2.Whether the Applicants have established a prima facie case with a probability of success for an interlocutory injunction
  3. 3.Whether the Applicants would suffer irreparable injury not compensable by damages / where the balance of convenience lies

Key legal issues

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01

Jurisdiction / exhaustion of statutory remedies

Holding

The jurisdictional objection was misplaced; the applicants' real dispute is a claim for adverse possession against the registered proprietor, which lies within this Court's jurisdiction.

Reasoning

The 2nd Respondent argued that grievances over enforcement notices must first go to the County Physical and Land Use Planning Liaison Committee under Section 72(3) of the Physical and Land Use Planning Act, 2019. The court held that although the eviction notices prompted the filing of the Originating Summons, the applicants' core claim is for declaration of ownership by adverse possession against the 1st Respondent, a claim the Liaison Committee cannot entertain and which only the ELC can determine under the Limitation of Actions Act.

p. 7
02

Prima facie case for interlocutory injunction

Holding

The Applicants established a prima facie case with a probability of success; the dispute over the duration of occupation is a matter for full trial.

Reasoning

The Applicants claimed occupation for periods of 15 to 35 years and exhibited photographs of shops and kiosks. The 1st Respondent, though disputing the length of occupation, admitted the Applicants are on the land and have built structures. The court found that the duration of occupation can only be tested by the rules of evidence at trial, but on the material presented the applicants demonstrated a prima facie case.

p. 10
03

Irreparable injury and balance of convenience

Holding

The balance of convenience tilts in favour of the Applicants, who face eviction from land they claim to have long occupied.

Reasoning

Applying Nguruman, the court considered the risk of eviction faced by the Applicants. It found that if no injunction issued and the suit ultimately succeeded, the inconvenience to the Applicants would exceed that caused to the Respondents if the injunction issued and the suit ultimately failed.

p. 11

Legal principles established

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  • A claim for declaration of ownership by adverse possession is a matter for the Environment and Land Court under the Limitation of Actions Act, and the statutory appeal mechanism for enforcement notices does not divest the Court of jurisdiction over such a claim.
  • The Giella -v- Cassman Brown conditions govern the grant of interlocutory injunctions: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience.
  • A prima facie case is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party.

Court orders

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  1. 1.The Notice of Motion dated 30th July 2025 is allowed in terms of prayer (c) - an injunction restraining the Defendants from evicting or interfering with the Applicants' occupation of Plot No.16807/1/MN (CR.47008) at Kongowea, Mombasa pending the hearing and determination of the suit
  2. 2.Costs of the application shall be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction under the Limitation of Actions Act, Cap 22 (adverse possession claims)

Relief refused

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Alternative prayer for maintenance of status quo

The court granted prayer (c) instead and did not make any order on the alternative status quo prayer

Costs

The Costs of the application shall be in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is this Court which is clothed with jurisdiction to hear and determine such a claim under the Limitation of Actions Act, Cap 22 of the Laws of Kenya.
p. 7Jurisdiction over adverse possession claims
In my considered view the issue of how long the Applicants have been on the suit property can only be tested by the rules of evidence in a full trial. Otherwise I am persuaded that the Applicants have established a prima facie case with a probability of success at the trial.
p. 10Prima facie case for interlocutory injunction
Accordingly, I am persuaded that there is merit in the Motion dated 30th July 2025. I allow the same in terms of prayer No. (c) thereof.
p. 12Final orders of the court
The Costs of the application shall be in the cause.
p. 12Costs

Issues in the judgment

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minor

The judgment refers to the Applicants as 'Appellants' in paragraphs 10 and 11 despite there being no appeal before the court.

minor

The judgment misspells 'Liaison Committee' as 'Liason/Lisason Committee' inconsistently.

minor

The ruling is delivered on 26th May 2026, more than nine months after the application of 30th July 2025, which is unusual but not internally contradictory.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Charo & 9 others v Ebrahim & another (Enviromental and Land Originating Summons E087 of 2025) [2026] KEELC 3307 (KLR)", Case Analysis (2026). MSA. ELCE. E087 OF 2025 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3307/eng@2026-05-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.