Mohamed & 19 others v Kajoji & 21 others (Environment & Land Case 99 of 2019 & 139 of 2015 & 28 of 2020 (Consolidated)) [2025] KEELC 2854 (KLR)
The bottom line
#A Kenyan court allowed a deceased defendant's family to join a long-running land case, found the other side in contempt, and let the ownership fight finally be heard on its merits.
What this practically means
#Executive summary
#Key legal issues
#Res judicata vis-à-vis the application dated 17/6/2021
The objection fails because the earlier application sought different reliefs and the Plaintiffs did not substantiate the objection.
Section 7 CPC requires that the matter directly and substantially in issue was heard and finally decided in a former suit between the same parties. The 17/6/2021 application sought only leave to amend the originating summons, which is not similar to the present prayers for contempt compliance and leave to file defence. The Plaintiffs also did not substantiate the objection.
Whether the Plaintiffs are in contempt of the orders of 23/3/2021 and 9/12/2021
Yes - the Plaintiffs are in disobedience of the court's orders which they were well aware of.
The 23/3/2021 ruling directed restoration of the status quo ante the 9/12/2019 orders, at which time no perimeter wall existed, so the Plaintiffs were expected to demolish it. The subsequent 28/4/2022 order permitted development except 2.4 acres, but the Plaintiffs have not demonstrated exclusion of the 2.4 acres; photographs show the wall surrounds the whole property.
Whether the deceased 8th Defendant's estate should be granted leave to file a defence and counter-claim
Yes - leave is granted; the claim raises adverse possession and illegality issues requiring determination on merits.
The court's discretion on extension of time must be exercised judiciously, considering the stage of the hearing and prejudice to the adverse party. The draft defence raises adverse possession and illegality, critical issues that cannot be wished away; the court should decide ownership of the suit property with finality on merits rather than impose discipline for default, applying Chemwolo v Kubende.
Legal principles established
#- To succeed in civil contempt proceedings, an applicant must prove the terms of the order, the respondent's knowledge of those terms, and the respondent's failure to comply.
- Contempt of court is criminal in nature and the standard of proof is higher than balance of probabilities; the applicant must prove wilful and deliberate disobedience.
- Blunders or defaults in filing pleadings can ordinarily be put right by payment of costs, so that a party's case is determined on its merits.
Court orders
#- 1.The application is allowed in terms of prayers 3, 4 and 5 as prayed
- 2.The applicant shall file defence and counterclaim and serve within 14 days of this order
- 3.The other parties shall respond thereto within 14 days of service
- 4.The plaintiffs shall file and serve their consolidated trial bundle duly indexed and paginated within 21 days of service of the defence and counterclaim upon them
- 5.The defendants shall file and serve their consolidated trial bundle duly indexed and paginated within 21 days of service of the plaintiff's bundle on them
- 6.The suit shall be mentioned on 11/6/2025 for issuance of a hearing date
- Jurisdiction invoked
- Sections 1B and 3A of the Civil Procedure Act; Order 24 Rules 1, 2, 4(1) and (2) and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed & 19 others v Kajoji & 21 others (Environment & Land Case 99 of 2019 & 139 of 2015 & 28 of 2020 (Consolidated)) [2025] KEELC 2854 (KLR)", Case Analysis (2025). Notice of Motion dated 8/11/2024 in ELC 139 of 2015 (formerly consolidated suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2854/eng@2025-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.