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ELCPartially AllowedELC Suit (Mombasa) - Interlocutory Applications dated 14th February 2025 and 21st February 2025· [2025] KEELC 1224 (KLR)

Kalu & 151 others v Kenya Petroleum Refineries (Land Case E017 of 2025) [2025] KEELC 1224 (KLR)

Environment and Land Court
12 March 2025
2,295 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Mombasa Environment and Land Court dismissed residents' bid to stop evictions because the Court of Appeal had already confirmed the landowner's title.

What this practically means

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Executive summary

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The plaintiffs, residents of Plot No. MN/V1/255/1 Mazunguka Community in Port Reitz ward, Changamwe Sub-County, Mombasa, moved the court by notice of motion dated 14th February 2025 seeking a temporary injunction to restrain the defendant, Kenya Petroleum Refineries Limited, from demolishing their houses or evicting them, contending the defendant had issued verbal eviction notices and marked their structures with red X, in breach of their constitutional property rights under Article 40. The defendant opposed the application and, by its own notice of motion dated 21st February 2025, sought discharge of the ex parte injunction and striking out of the suit as res judicata, relying on the High Court judgment in HCCC No. 544 of 2000, the ELC petition, and the Court of Appeal decision in Civil Appeal No. 70 of 2016, which had confirmed the defendant's ownership of the suit parcel. The court framed three issues: res judicata, the injunction threshold, and costs. It found the parcel in HCCC No. 544 of 2000 to be the same suit property, noted the unchallenged judgment ordering vacant possession, and held that the Court of Appeal's treatment of that judgment as a judgment in rem binds this court. The plaintiffs' application was dismissed as a non-starter; the status quo orders were vacated; and rather than striking out the entire suit, the court directed the striking out of all averments and prayers touching ownership and possession of MN/V1/255/1, leaving the plaintiffs liberty to amend and pursue the balance of their claim. The defendant was awarded costs in both applications.

Key legal issues

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01

Whether the suit and application are res judicata

Holding

The suit on ownership and possession of MN/V1/255/1 is res judicata, having been conclusively determined in HCCC No. 544 of 2000 and the subsequent petition and appeal.

Reasoning

The court perused the HCCC No. 544 of 2000 judgment which concerned the same parcel, found the defendant's title undisputed, and ordered the defendants to vacate. The Court of Appeal in Civil Appeal No. 70 of 2016 treated that judgment as a judgment in rem and dismissed the appeal. That decision binds this court, leaving the plaintiffs' injunction application a non-starter.

p. 4
02

Whether the plaintiffs met the threshold for an interlocutory injunction

Holding

The plaintiffs did not, because the res judicata finding means they cannot restrain the defendant from exercising its rights as proprietor.

Reasoning

Given the unchallenged prior judgments and the binding Court of Appeal decision, the plaintiffs could not demonstrate a prima facie arguable case over the suit property. The application to restrain the defendant from exercising proprietorship rights over MN/V1/255/1 was therefore without merit and the interim status quo orders were vacated.

p. 4
03

Whether the entire suit should be struck out for res judicata

Holding

Only the averments and prayers touching ownership and possession of MN/V1/255/1 are to be struck out, not the entire suit.

Reasoning

The court considered striking out the whole suit disproportionate and instead ordered the excision of the offending averments and prayers, leaving the plaintiffs free to pursue appropriate amendments to prosecute the remainder of their claim. The defendant remains at liberty to move the court if the plaintiffs fail to act.

p. 4

Legal principles established

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  • A decision of the Court of Appeal binds the trial court and, so long as it remains undisturbed, a claim contradicting it is a non-starter
  • Costs follow the event under section 27 of the Civil Procedure Act

Court orders

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  1. 1.The plaintiffs' amended notice of motion dated the 14th February 2025 is dismissed
  2. 2.The status quo order issued on 17th February 2025 and extended on 24th February 2025 is vacated
  3. 3.Striking out of all averments and prayers touching on the ownership and possession of land parcel MN/V1/255/1 from the plaintiffs' amended plaint
  4. 4.The defendant is awarded costs in both applications

Authorities

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Legislation

  • Civil Procedure Actsection 27

Cases cited (3)

  • Kenya Petroleum Refineries v Hassan Ngao & 53 Others
    HCCC No. 544 of 2000
  • John Omolo Oracha & 3 Others v Kenya Petroleum Refineries Limited & 3 Others
    ELCC Petition No. 250 of 2015
  • John Omolo Oracha & 3 Others v Kenya Refineries Limited & 3 Others
    Civil Appeal No. 70 of 2016
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (inferred; not expressly cited in the ruling)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kalu & 151 others v Kenya Petroleum Refineries (Land Case E017 of 2025) [2025] KEELC 1224 (KLR)", Case Analysis (2025). ELC Suit (Mombasa) - Interlocutory Applications dated 14th February 2025 and 21st February 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1224/eng@2025-03-12

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