Ashfam Enterprises Ltd & another v Ngalla & 3 others (Environment and Land Case 26 of 2025) [2026] KEELC 3408 (KLR)

2. 3. c. That pending the hearing and determination of this suit, a temporary injunction do issue restraining the Defendants, their servants, agents and/ or any persons acting under the Defendant’s authority from trespassing, encroaching, sub dividing, selling ofi, building on, constructing upon, alienating, damaging, wasting, disposing ofi, and or in any manner whatsoever continuing carrying out any activities or at all over the suit property to wit that property referenced Portion Number 1872 Orign. No. 793/3 and delineated on Land Survey Number 471449/ d. That the costs of this application be in the cause. The application is supported by the afidavit of Dilmua Mohamed Dilmua, the second plaintifi herein, and it is premised on the following grounds: a. That the 1st and 2nd Plaintifis/Applicants are the lawful registered owner of all that parcel of land referenced Portion Number 1872 Orig. No. 793/3 and delineated on Land Survey Number 471449 absolutely. b. That the Defendants are mere busy bodies with an aim to forcefully enter and retain the suit land despite having knowledge of the registration status of the land herein. c. That despite the Plaintifis/Applicants protests and in blatant disregard of the Plaintifis’ pleas warning against the said activities, the Defendants jointly and severally have now deliberately, illegally and unlawfully embarked on a series of serious and construction spree all over the Plaintifis land to the Plaintifis detriment. d. That in this regard, the Plaintifis/ Applicants are apprehensive that the Defendants either will jointly continue their illegal actions unless restrained by orders of this Honourable Court. e. That the Defendants have no legal claim or any color of right whatsoever over the suit property and is hell bent and keen on altering the face of the suit property to tilt the balance of convenience in their favor if at all this court does not move with speed to prevent injustices being occasioned. f. That unless the Defendants, their servants, assigns and representatives are stopped by an order of injunction from this Honourable Court, the Defendants have threatened to continue with the said illegal activities and thereby occasion great and irreparable loss to the Plaintifis/Applicants. g. That the Plaintifis/Applicants stands to sufier great/serious and/or irreparable loss as the Defendants are making physical attempt to stake and legitimize a non-existent claim over the Plaintifis/Applicants property. A replying afidavit sworn by one Joseph Mwandenge Mangi dated 26th March 2026 was filed. The deponent stated that the defendants herein are not sued in their individual capacity but as members of a Community Based Organization (CBO) referred to as Sabaki River Conservation and Development Organization (SARICODO) which was formed with the sole aim of conservation of the Sabaki River estuary, restoration of mangrove trees, forest patrols, advocacy on improved conservation and management of Sabaki river estuary, beach cleanups and so on; that its activities began in the year 2006; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3408/eng@2026-05-19 2

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that the portion of land involved is title number 793 (CR 58108); that a significant portion of the said land was historically underneath river water and within the riparian zone; that the river channel has migrated over time thus altering boundaries and therefore the area the suit land is in qualifies as a river channel, fiood plain or wetland; that it is not true that the applicant has been developing the suit land; that the actual situation is that it has never been developed by anyone; that following the marking and pegging of the wetland area by the water resources management authority warmer was established that the area occupies the Sabaki River estuary and following a stakeholder meeting held at the NEMA ofices in Kilifi a report thereon was compiled. That report is exhibited in the afidavit as “JMM 5”. It is further deponed that the CBO has heavy invested in the conservation of the mangrove forest and restoration of the land on which the parcel lies in which activity has been supported by all government institutions and leaders national and locally and it has hosted many events in education on conservation of the mangroves. Preliminary Objection to The Replying Afidavit 4. A Preliminary Objection to the replying afidavit was filed by the plaintifis, dated 4th May 2026 on the basis that it is sworn by a non-party who lacks any locus standi and who should not thus be allowed to address the court and also that it is in violation of order one order 51 rule 10 13 and 14 and that it is full of hearsay. 5. However, this court is of the view that the matters raised in that Replying Afidavit relates to portion of land number 793 title numbers CR 58108 which seems to be the original plot number that gave birth to plot number 1872. Plot number 1872 is the one that is claimed by the plaintifis herein and the court thus finds the two plot numbers are related, with one being the larger predecessor of the other. Besides, the organization called SARIKODO appears to be a registered organization which, according to the letters dated 8th August 2022 and 12th September 2022 from the local administration ofice of the Chief and the local KWS Warden respectively, is recognized by the local administration and conservation organizations as operating in the area around the Sabaki River estuary. 6. From the text of the Report on Geospatial Assessment of Land Parcel Number 793 Mambrui Kilifi Sabaki Estuary which is attached to the Replying Afidavit, it appears that the existence of parcel no 793 within the estuarine system elicited so much interest to the extent that its history had to be traced. That report, if confirmed to be authentic in any latter proceedings in this case, would confirms that a significant part of the land known as plot number 793 was historically under river water and within the riparian zone. 7. Due to the revelation of the above information that was not disclosed by the plaintifis, I find that it is quite evident that the plaintifis omitted or failed, whether by default or by design, to join the proper parties to the suit as well as to provide very critical information on the Sabaki River estuary ecosystem within which the plot is situated, without which information or joinder of parties true justice may not be done in either the suit or the application. Further, the activities of the organization known as SARIKODO of which the defendants are said to be part, having been classified as conservational in nature, this court finds no ground in the present application to grant the present application which would have the result of barring those activities unless they are shown to be not geared towards conservation, or that they are deleterious to the local ecosystem. 8. This court is aware that this country has ratified a number of international instruments geared towards environmental conservation including the Convention on Biodiversity and the Ramsar Convention. Other than that, Kenya has an adequately comprehensive municipal law, including the Environmental Management and Coordination Act, the Water Act and the Forests Act which is crafted for the protection and management of the environment in Kenya. Those Acts have created responsible https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3408/eng@2026-05-19 3

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institutional structures for inter alia, environmental management, and it would be strange that two ordinary citizens would be fighting over what is prima facie riparian land without the insight of the responsible institutions being sought and/or considered. 9. The plaintifis’ pleading not having touched on any environmental concerns, and the filed afidavit having raised such concerns, it behoves this court to examine this matter not as an ordinary land dispute but as a suit that may eventually raise ecological concerns pertinent to the Sabaki Estuary. 10. In our judicial system which is now guided by global environmental litigation trends, the Constitution of Kenya 2010 as well as the Environment Management and Coordination Act 1999, to be alert to and respond to current environmental conservation issues afiecting society expeditiously under the precautionary principle, and to reject any challenge to environmental litigation premised on lack of locus standi, and to where in doubt rule in favour of protecting the environment - the in dubio pro natura principle- this Court would be acting out of tune if it dismissed the replying afidavit ofJoseph Mwandenge Mangi dated 26th March 2026 on the basis that is filed by a non-party. It would even be more amiss to do so in the face of prima facie evidence placed before it that the concerned environmental institutions may have dealt with the matter and arrived at conclusions that would help the court come to a just and fair determination of the present dispute. On those considerations, the preliminary objection of the plaintifi is hereby summarily dismissed with costs. 11. This court notes that what is sought in an injunction application is usually the discretion of the court, and it will apply its discretion and make an observation that the environmental authorities concerned as well as the local administration, whose correspondence and participation has been noted from the attachments to the replying afidavit, may be possessed of better information than that provided by the plaintifi which does not include any insight as to whether the plot number 1872 falls within the riparian reserve. 12. What I have stated above is suficient to dispose of the application before me, and I find not only that it lacks merit, but also that the plaintifi is guilty of material non-disclosure, and I dismiss the same with costs to the defendants. 13. The present suit shall be mentioned on 19th June 2026 for pretrial directions. DATED, SIGNED AND DELIVERED AT MALINDI VIRTUALLY THIS 19TH DAY OF MAY 2026. MWANGI NJOROGE JUDGE, ELC MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3408/eng@2026-05-19 4

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