Agnes Nthenya Kilonzo t/a Kokomo Beach Bar and Restaurant & another v County Executive Committee Member for Lands, Physical Planning, Housing and Urbanization & another; Lion Beach Resort (Interested Party) (Environment & Land Petition E13 of 2024) [2025] KEELC 788 (KLR)
The bottom line
#A Malindi court temporarily stopped Kilifi County from demolishing a Watamu beach business, holding that businesses licensed by public authorities deserve a full hearing before removal.
What this practically means
#Executive summary
#Key legal issues
#Whether the application is res judicata the Petitioners' application in ELC Misc. Application No. 1 of 2024
The application is not res judicata because the parties in the former miscellaneous application were different.
Applying Section 7 of the Civil Procedure Act and the conjunctive elements set out in Kenya Commercial Bank v Benjoh Amalgamated Limited, the court noted that in ELC Misc. Application No. E001 of 2024 (Ignace Mchana Nyambu v Abudi Shoshi Abudi & Agnes Kilonzo) the dispute was between different parties from the present petition. Since identity of parties and title is a mandatory element of res judicata, the Interested Party's contention could not stand on that basis alone.
Whether the Petitioners established a case for conservatory orders pending the hearing of the Petition
Conservatory orders were granted in terms of Prayers 3 and 5 because serious issues of public law and governance arise, without a definitive finding on prima facie case.
Relying on Gatirau Peter Munya v Dickson Mwenda Kithinji, the court held that conservatory orders bear a public law connotation. Although the Petitioners admitted constructing structures on riparian reserve land without county development permission, the County Government had issued them a single business permit after charging various fees, and KWS had permitted a temporary banda. Questions of condonation, estoppel and rights of persons investing with regulatory authority could not be resolved at the interlocutory stage.
Legal principles established
#- The elements of res judicata are conjunctive and all must be present, including identity of parties litigating under the same title
- Conservatory orders are granted on the inherent merit of the case bearing in mind public interest and constitutional values, unlike interlocutory injunctions
- Where serious issues of public law and national values and principles of governance arise, a court may grant conservatory orders without making a definitive finding on prima facie case
Court orders
#- 1.A conservatory order restraining the Respondents, their agents, employees or servants from demolishing the Petitioners' business premises known as Kokomo Beach Bar & Restaurant at Watamu Marine Protected Area pending hearing and determination of the Petition (Prayer 3)
- 2.A conservatory order restraining the Respondents from implementing and/or enforcing the demolition order issued vide letter dated 9th October 2023 pending hearing and determination of the Petition (Prayer 5)
- 3.Costs of the motion in the cause
- 4.The hearing of the petition to be expedited; Respondents to file and serve responses within 14 days; parties to appear for directions on 11/3/2025
- Jurisdiction invoked
- Articles 22(1), 23 and 258(1) of the Constitution of Kenya, 2010 (enforcement of Bill of Rights before the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agnes Nthenya Kilonzo t/a Kokomo Beach Bar and Restaurant & another v County Executive Committee Member for Lands, Physical Planning, Housing and Urbanization & another; Lion Beach Resort (Interested Party) (Environment & Land Petition E13 of 2024) [2025] KEELC 788 (KLR)", Case Analysis (2025). Petition (ELC, Malindi) – Notice of Motion dated 2/9/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/788/eng@2025-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.