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ELCPartially AllowedNot stated in the extract (Originating Summons dated 19/3/24)· [2025] KEELC 988 (KLR)

Kiathe & 38 others v Kajiado Central District Land Registrar (Enviromental and Land Originating Summons E020 of 2024) [2025] KEELC 988 (KLR)

Environment and Land Court
28 February 2025
3,075 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Nairobi's Environment and Land Court let 37 occupants stay on disputed Nairobi plots for up to 270 days, rejecting the land society's attempt to have the suit thrown out.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (J. G. Kemei, Judge) determined two interlocutory applications in a suit in which 37 Plaintiffs claim adverse possession of identified plots forming part of LR No. 11531/9, Nairobi, occupied since about 2009-2010. The Plaintiffs' Notice of Motion dated 19/3/24 sought a temporary injunction restraining the Defendant, a housing co-operative registered as proprietor since 2002, from alienating, subdividing, selling or evicting them. The Defendant's Notice of Motion dated 17/1/25 sought striking out of the entire suit as res judicata, relying on ELC No. 353 of 2009 (OS) and ELC Civil Case No. 994 of 2014, involving the Maili Saba Mwengenye Self-Help Group. The court held that res judicata was not established: the 2009 suit collapsed after its Defendants were struck out and was never determined with finality, and the Defendant failed to prove that the current Plaintiffs were members of the Self-Help Group party to the earlier litigation, there being no membership list. Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act, and the IEBC v Maina Kiai and John Florence Maritime Services authorities, were applied. On the injunction, applying Giella v Cassman Brown, the court held its task was to preserve the suit land, and ordered maintenance of status quo over the occupied plots for up to 270 days to enable prosecution of the suit. The Defendant's application was dismissed, the Plaintiffs' application allowed in those terms, with each party bearing their own costs. A preliminary objection on res judicata had earlier been overruled on 24/9/24.

Key legal issues

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01

Res judicata

Holding

The suit is not res judicata; ELC No. 353 of 2009 collapsed without final determination and the Plaintiffs were not shown to be members of Maili Saba Mwengenye Self-Help Group which was party to the prior suits.

Reasoning

The court required proof of all res judicata elements conjunctively. ELC 353 of 2009 was struck out on 14/7/14 and collapsed for lack of a Defendant, so it was never determined with finality. In ELC 994 of 2014, the Defendant bore the burden of showing the current Plaintiffs were members of the Self-Help Group sued there; no membership list was produced, so the court was unable to confirm identity of parties.

p. 6
02

Temporary injunction

Holding

Rather than a conventional temporary injunction, the court ordered maintenance of status quo over the occupied plots for up to 270 days pending hearing.

Reasoning

Applying Giella -vs- Cassman Brown, the court noted the claim was founded on adverse possession with occupation in excess of 12 years and construction of buildings unchallenged by photographic evidence. It held that at the interlocutory stage its role is not to determine the claim finally but to preserve the suit land, and that status quo was the appropriate order, time-bound to encourage prosecution of the suit.

p. 6

Legal principles established

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  • Elements of res judicata must be satisfied conjunctively
  • Purpose of res judicata doctrine per the Supreme Court
  • Giella principles for temporary injunction
  • Equity may withhold interlocutory injunction for unconscionable conduct

Court orders

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  1. 1.The Defendant's application dated 17/1/25 is dismissed
  2. 2.The Plaintiffs' application dated 19/3/24 is allowed in terms of status quo: maintenance of status quo over the named plots occupied by the Plaintiffs being part of LR No. 11531/9, to subsist for not more than 270 days within which the Plaintiffs ought to prosecute the suit to conclusion
  3. 3.Each party to meet their own costs

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21Section 7
  • Environment and Land Court ActSection 28
  • Civil Procedure Rules, 2010Order 40 Rule 1; Rule 6 (cited with a '?' in the judgment)

Cases cited (3)

  • The Independent Electoral and Boundaries Commission -vs- Maina Kiai & 5 Others
    [2017] eKLR
  • John Florence Maritime Services Ltd & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2021) eKLR, para 54
  • Giella -vs- Cassman Brown & Co. Ltd
    [1973] EA 358
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Section 28 of the Environment and Land Court Act cited for res judicata bar)

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, "Kiathe & 38 others v Kajiado Central District Land Registrar (Enviromental and Land Originating Summons E020 of 2024) [2025] KEELC 988 (KLR)", Case Analysis (2025). Not stated in the extract (Originating Summons dated 19/3/24). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/988/eng@2025-02-28

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