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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 8th July 2024)· [2025] KEELC 414 (KLR)

County Government of Kilifi v Mwenga & 3 others (Environment & Land Case E071 of 2024) [2025] KEELC 414 (KLR)

Environment and Land Court
5 February 2025
EME. K. Makori
1,432 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to block a land dispute case, ruling an old 1999 case didn't settle it, and ordered that nothing change on the property meanwhile.

What this practically means

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Executive summary

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The plaintiff filed a Notice of Motion dated 8th July 2024 seeking injunctive orders restraining the defendants, their agents and employees from dealing with Plot No. CR. No. 71879, LR. No. 5054/2529 Kilifi Township (the Suit Property). The 1st to 3rd defendants filed a Notice of Preliminary Objection and a replying affidavit, contending that the suit property belongs to the estate of the late Anthony Mwenga Mavua, of whose estate they are administrators, and that the suit is res judicata given the prior Mombasa High Court Civil Case No. 303 of 1999, in which Khaminwa J. issued injunctions concerning trespass on the property. The applicant and the interested party opposed the Preliminary Objection but supported the injunction, arguing that the prior suit concerned trespass while the present suit raises ownership, the legality of the respondents' title, and the alleged unlawful conversion of public land to private land. The court framed three issues: res judicata, entitlement to the orders sought, and costs. Applying Section 7 of the Civil Procedure Act and the Supreme Court's decision in John Florence Maritime Services Limited, the court held that res judicata was not established: the material from the former suit showed only a ruling and interim orders, with no evidence of a trial on merits, judgment or decree; and the issues in the present suit differ from those in the former suit. The Preliminary Objection was declined. In the spirit of active case management, and noting that the notice of eviction had long lapsed, the court ordered that the status quo as obtaining on the ground persist pending the hearing and determination of the suit, and awarded costs in the cause.

Key legal issues

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01

Whether the suit is res judicata by virtue of the prior Mombasa High Court Civil Case No. 303 of 1999

Holding

Res judicata does not apply; the Preliminary Objection fails

Reasoning

The court found that the material supplied from the former suit was only a ruling and an interim order of Khaminwa J; there was no evidence the matter was tried on its merits, that judgment was rendered or a decree issued. Further, the issues in the current suit - ownership, legality of title and alleged unlawful conversion of public land to private land - differ from the trespass issues in the former suit. Res judicata therefore could not be sustained.

p. 3
02

Whether the plaintiff has demonstrated grounds for the injunctive orders sought

Holding

The court ordered maintenance of the status quo as obtaining on the ground pending hearing and determination of the suit

Reasoning

In the spirit of active case management, and noting that the notice of eviction had long lapsed, the court disposed of the pending injunction application by directing that the status quo persist rather than granting the injunctive orders sought.

p. 3
03

Costs

Holding

Costs in the cause

Reasoning

The court made no final award of costs, reserving them to the cause.

p. 3

Legal principles established

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  • Res judicata under Section 7 of the Civil Procedure Act bars a court from trying a suit or issue directly and substantially in issue in a former suit between the same parties or their privies, heard and finally decided by a competent court
  • Res judicata applies only where the issue was finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives

Court orders

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  1. 1.Preliminary Objection declined
  2. 2.Status quo as obtains on the ground to persist pending the hearing and determination of the current suit
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Constitution of Kenya, 2010Article 27(1)
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 50(1)
  • Local Government (Adoptive By-laws) (Building) Order 1968Not specified (referenced in the prior orders of Khaminwa J)

Cases cited (2)

  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2021] eKLR
  • Anthony Mwenga Mavua v County Council of Kilifi, Gurundev Singh, and Town Council of Kilifi
    HCCC No. 303 of 1999 - Mombasa (orders of Khaminwa J)
Jurisdiction invoked
Not expressly stated; suit determined under the Civil Procedure Act (Section 7 on res judicata) and the Constitution (Articles 27(1), 40 and 50(1) referred to)

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, "County Government of Kilifi v Mwenga & 3 others (Environment & Land Case E071 of 2024) [2025] KEELC 414 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 8th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/414/eng@2025-02-05

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