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ELCPartially AllowedELC Suit over Plots 1210 and 695 (Kilifi-Pingilikani), Notice of Motion dated 1/4/2025· [2025] KEELC 4729 (KLR)

Chilengeli & 2 others v Mwangome & 9 others (Environment & Land Case E031 of 2025) [2025] KEELC 4729 (KLR)

Environment and Land Court
25 June 2025
1,839 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs moved the Environment and Land Court at Malindi by Notice of Motion dated 1/4/2025 seeking a temporary injunction restraining the Defendants from trespassing on or interfering with Plots 1210 and 695 (Kilifi-Pingilikani), an order compelling the Kilifi County Police Commander to provide security, and an order directing the Kilifi Land Registrar to demarcate boundaries. They claimed ownership under 2013 title deeds and alleged trespass, malicious damage and an assault on the 3rd Plaintiff. The Defendants filed a Preliminary Objection dated 28/4/2025 arguing the suit was sub judice, the subject matter being pending in Malindi ELC Petition No. 9 of 2014, and a Replying Affidavit asserting their own possession subject to a status quo order and a 2016 conservatory order. The court framed two issues: the sub judice objection and the injunction threshold. Applying Section 6 of the Civil Procedure Act, it found the parties in the Petition and the present suit are not the same — only the 3rd Plaintiff overlaps — and dismissed the Preliminary Objection. On the merits of the application, it found Plot 695 registered in the names of non-parties and Plot 1210 co-owned with only the 3rd Plaintiff before the court, with no authority from the 1st and 2nd Plaintiffs to litigate. Declining an injunction, the court ordered maintenance of the status quo on Plot 1210 and barred new developments, dismissed the Preliminary Objection, made costs in the cause, and gave document-filing timelines with a mention on 22nd October 2025 alongside the Petition.

Key legal issues

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01

Sub judice under Section 6 of the Civil Procedure Act

Holding

The Preliminary Objection fails because the parties in the present suit are not the same as those in Malindi ELC Petition No. 9 of 2014

Reasoning

Section 6 requires that the matter in issue be directly and substantially in issue in a previously instituted suit between the same parties or parties under whom they claim, litigating under the same title. Only the 3rd Plaintiff appears in both suits; the Defendants in this case do not appear in the Petition, and the Defendants did not demonstrate any relation with the Petition parties. All limbs must be satisfied, so the objection fails.

p. 4
02

Interlocutory injunction under the Giella test

Holding

Injunction declined; status quo ordered to be preserved on Plot 1210 pending full hearing

Reasoning

Although the Plaintiffs produced title deeds, Plot 695 is registered in the names of non-parties and Plot 1210 is co-owned, with only the 3rd Plaintiff being a party. The 1st and 2nd Plaintiffs lack title and authority to litigate for the 3rd Plaintiff, and co-proprietors were not joined. With proprietary interest insufficiently established, the court preserved the status quo instead of granting an injunction.

p. 4

Legal principles established

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  • Section 6 of the Civil Procedure Act requires that all three elements — same matter in issue, same parties or parties claiming under them, and a previously instituted suit pending — be satisfied before a suit is stayed as sub judice
  • A prima facie case is one which, on the face of it, discloses a genuine and arguable claim capable of succeeding at trial
  • At the interlocutory stage a court may preserve the status quo rather than grant an injunction where the applicant's legal interest in the whole property is unestablished

Court orders

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  1. 1.The status quo currently prevailing on Plot No. 1210 (Kilifi-Pingilikani), Kilifi County shall be maintained pending the hearing and determination of the main suit
  2. 2.No party shall commence new developments, including construction, ploughing, or any other activities that may alter the character of Plot No. 1210 until further orders
  3. 3.The Preliminary Objection dated 28/4/2025 is dismissed
  4. 4.Costs shall be in the cause
  5. 5.Plaintiffs to file and serve their bundle of documents within 30 days and Defendants within 60 days, timelines running concurrently
  6. 6.Suit to be mentioned on 22nd October 2025 together with ELC Petition No. 9 of 2014 for directions as to hearing

Authorities

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Legislation

  • Civil Procedure ActSection 6

Cases cited (7)

  • Njogu v Ndungu
    [2000] eKLR
  • Thiba Mini Hydro Co. Ltd v Josphat Karu Ndwiga
    [2013] eKLR
  • David Peterson Kiengo & 2 Others v Kariuki Thuo
    [2012] eKLR
  • Kinatwa Co-operative Savings & Credit Society Limited v Kinatwa Prestige Ltd
    [2021] eKLR
  • Kenya National Commission on Human Rights v AG, IEBC & 16 Others (Interested Parties)
    [2020] eKLR
  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd
    [supra]
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (inferred from court designation; not expressly quoted)

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, "Chilengeli & 2 others v Mwangome & 9 others (Environment & Land Case E031 of 2025) [2025] KEELC 4729 (KLR)", Case Analysis (2025). ELC Suit over Plots 1210 and 695 (Kilifi-Pingilikani), Notice of Motion dated 1/4/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4729/eng@2025-06-25

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