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Court of AppealPartially AllowedAppeal from Mombasa ELC Petition No. 2 of 2022 (interlocutory ruling of Naikuni, J.)

Lalo & 227 others v Kahia Transporters Ltd & 6 others (Civil Appeal E078 of 2022) [2026] KECA 1583 (KLR)

Court of Appeal of Kenya
31 July 2026
5,798 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed 228 Kwale residents as proper parties in a land case but refused to cancel old court orders already overtaken by completed land adjudication.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Mombasa from an interlocutory ruling of Naikuni, J. in the Environment and Land Court at Mombasa (ELC Petition No. 2 of 2022). The 228 Appellants, residents of the Maji ya Chumvi Adjudication Section in Kwale County, had sought joinder as interested parties in Kahia Transporters Limited's constitutional petition concerning LR 32095 and LR 37122, and the setting aside of ex parte conservatory orders issued on 15th March 2022 restraining issuance of titles and interference with the 1st Respondent's claimed ownership. The trial court allowed joinder but declined to set aside the conservatory orders, holding that at the time of the application the Appellants were 'strangers' without locus standi, and that Order 45 review thresholds were unmet. The Court of Appeal condensed the appeal into four issues. It held that the learned Judge misapprehended the record: Dena, J. had already joined the Appellants as interested parties on 4th April 2022, so they were not strangers. On the conservatory orders, the Court departed from the trial Judge's reasoning but upheld the outcome: Certificates of Finality had issued on 27th November 2018 and titles had been issued, so the orders were a nullity, and setting them aside would be issuing orders in vain - the matter was moot. The Court found no contradiction in the Judge's concurrent recognition of the Land Adjudication Act's exhaustion framework and the ELC's jurisdiction under Article 162(2)(b) over constitutional and title issues, and held it was premature to determine the validity of the 1st Respondent's title at the interlocutory stage. In its final orders the Court allowed the appeal 'in part only to the extent of the Appellants joinder' but dismissed it as lacking merit, ordering each party to bear their own costs. The decision below was, in effect, affirmed in result.

Questions the Court framed

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

  1. 1.Whether the learned Judge was wrong in holding that the Appellants had not been joined to the Petition and were therefore strangers to the proceedings
  2. 2.Whether the learned Judge was wrong in declining to set aside, suspend or discharge the ex parte conservatory orders of 15th March 2022
  3. 3.Whether the learned Judge made contradictory findings regarding jurisdiction, the land adjudication process, and the propriety of the Petition
  4. 4.Whether the learned Judge failed to determine the legality and validity of the 1st Respondent's title, and the effect of the completed adjudication process in Maji ya Chumvi Adjudication Section

Key legal issues

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01

Status of the Appellants after joinder by a differently constituted court

Holding

The trial Judge misapprehended the record in treating the Appellants as strangers; orders of Dena, J. of 4th April 2022 had already joined them as Interested Parties, entitling them to have their application considered on its merits.

Reasoning

The Court of Appeal found that Dena, J. at Kwale had, on 4th April 2022, ordered the Appellants and Affected Parties joined as Interested Parties in the proceedings. Once joined, they ceased to be strangers and acquired the right to participate and be heard. The Respondents' counsel conceded the orders had been granted. The trial Judge therefore misdirected himself by disregarding those orders, though this error did not alter the ultimate outcome because the conservatory orders were moot.

p. 7
02

Setting aside of ex parte conservatory orders overtaken by events

Holding

Although the trial Judge's reasoning (lack of standing and failure of Order 45 review thresholds) was wrong, the decision declining to set aside the conservatory orders was upheld because the orders were a nullity and setting them aside would be an exercise in vain.

Reasoning

Certificates of Finality were issued on 27th November 2018 and titles issued thereafter; by the time the conservatory orders were made, there was nothing left to restrain. Relying on Macfoy v United Africa Co., the Court held that a void act is a nullity needing no formal setting aside. Invoking the mootness doctrine from Okiya Omtatah Okoiti and Daniel Kaminja, the Court declined to issue orders with no practical effect. The appeal on this ground failed even though the Judge's reasoning was departed from.

p. 9
03

Alleged contradictory findings on jurisdiction and exhaustion

Holding

The trial Judge did not contradict himself: recognising the Land Adjudication Act's dispute-resolution framework while affirming the ELC's jurisdiction under Article 162(2)(b) over constitutional and title issues are not mutually exclusive findings.

Reasoning

The doctrine of exhaustion requires statutory remedies to be pursued first (Geoffrey Muthinja Kabiru), but it is not absolute where constitutional issues arise (Republic v NEMA ex-parte Sound Equipment). The Petition challenged alleged issuance of competing titles, infringement of constitutional property rights and the legality of actions by public authorities - matters within the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act. This ground of appeal failed.

p. 9
04

Failure to determine validity of the 1st Respondent's title at interlocutory stage

Holding

The trial Judge could not be faulted: title legality, validity of adjudication and double allocation are substantive matters for the full Petition, not an interlocutory application for joinder and discharge of conservatory orders.

Reasoning

All Respondents agreed the application was interlocutory. The Court's mandate was limited to joinder and the interim status of the conservatory orders pending hearing of the Petition. It was premature to require a pronouncement on the 1st Respondent's title or the effect of the completed adjudication process at that stage. This ground of appeal also failed.

p. 10

Legal principles established

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  • A party properly joined as an interested party in proceedings is not a stranger to the proceedings and is entitled to have their applications considered on their merits.
  • Conservatory orders granted after the events they seek to restrain have already occurred (here, after completion of adjudication and issuance of Certificates of Finality) are a nullity; a void act needs no formal setting aside.
  • A matter is moot where events have removed any actual controversy and a ruling would have no practical impact; courts decline to issue orders in vain.
  • The doctrine of exhaustion under the Land Adjudication Act is not absolute; the Environment and Land Court retains jurisdiction under Article 162(2)(b) over constitutional issues, alleged violations of property rights and the legality of competing titles, and these findings are not contradictory.
  • On a first appeal, the Court of Appeal must re-evaluate all the evidence and reach its own independent conclusions while making due allowance for the fact that it did not see or hear the witnesses.

Court orders

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  1. 1.Appeal allowed in part only to the extent of the Appellants' joinder as parties to the Notice of Motion dated 17th March 2022, but otherwise dismissed for lack of merit
  2. 2.Each party to bear their own costs

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court at Mombasa
ELC Petition No. 2 of 2022
Jurisdiction invoked
First appeal to the Court of Appeal under its appellate jurisdiction (the judgment identifies the matter as a first appeal from the Environment and Land Court); underlying jurisdiction of the trial court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act.

Relief refused

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Setting aside, suspension or discharge of the ex parte conservatory orders of 15th March 2022

The conservatory orders were a nullity because the adjudication process had concluded with Certificates of Finality issued on 27th November 2018; setting them aside now would be issuing orders in vain (mootness)

p. 9

Determination of the legality and validity of the 1st Respondent's title at the interlocutory stage

The application before the trial court was interlocutory; the legality of titles and competing ownership claims are substantive matters for the Petition itself

p. 10

Declaration that the ex parte orders were null and void, dismissal of the Petition and striking out of the 1st Respondent's application (sought by Appellants)

The appeal lacked merit beyond the finding on joinder; the decision declining to set aside the conservatory orders was upheld

p. 9

Costs

Each party to bear their own costs - "We order each party to bear their own costs."

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.

In sum, the appeal succeeds and is hereby allowed in part only to the extent of the Appellants joinder as parties to the Notice of Motion dated 17th March 2022, but lacks merit and is hereby dismissed. We order each party to bear their own costs.
p. 10Final orders and disposition
while we therefore depart from the reasoning adopted by the learned Judge, we ultimately uphold the decision declining to set aside the conservatory orders.
p. 9Outcome on conservatory orders
If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set aside.
p. 8Nullity of void acts (Macfoy)
A matter is moot if further legal proceedings with regard to it can have no efiect, or events have placed it beyond the reach of the law.
p. 9Doctrine of mootness
An interested party is one who has a stake in the proceedings, though he/she was not a party to the cause ab initio.
p. 7Interested parties
the learned Judge correctly held that the Environment and Land Court possessed jurisdiction to entertain the petition.
p. 9Jurisdiction of the ELC
Having been joined on 4th April 2022, they were properly joined as Interested Parties; and that the learned Judge misdirected himself in so finding.
p. 8Effect of joinder

Issues in the judgment

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material

Internal contradiction in the final orders: the Court simultaneously allows the appeal 'in part' and dismisses it, stating both that it 'succeeds and is hereby allowed in part' and that it 'lacks merit and is hereby dismissed'.

minor

The ruling under appeal records conservatory orders of '15th March 2022', but the judgment quotes trial court orders dated '7th March 2022' containing the conservatory terms, without reconciling the dates.

minor

The quoted order misstates the title numbers ('Plot No.CR. 72F836 (sic)', '37422 (sic)') compared with CR 72836 and LR 37122 elsewhere in the judgment.

minor

The judgment is dated '31ST DAY OF JULY, 2026' and includes a certification by the Deputy Registrar within the copy provided.

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, "Lalo & 227 others v Kahia Transporters Ltd & 6 others (Civil Appeal E078 of 2022) [2026] KECA 1583 (KLR)", Case Analysis (2026). Appeal from Mombasa ELC Petition No. 2 of 2022 (interlocutory ruling of Naikuni, J.). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1583/eng@2026-07-31

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