Lawler & 2 others; Gregorio (Intended Interested Party) (Environment and Land Case E115 of 2024) [2025] KEELC 5039 (KLR)
The bottom line
#A Kenyan land court froze all dealings and construction on a disputed Kilifi property but refused to evict the current occupants, delay the case, or add the former owner as a party.
What this practically means
#Executive summary
#Key legal issues
#Whether an injunction should issue over the suit property
No injunction; instead preservation/status quo orders issued, with defendants remaining in possession and no further construction or dealings
The Deputy Registrar's report showed the 1st and 2nd defendants are in possession and carrying out construction. Granting an injunction against parties already in occupation would amount to an interlocutory mandatory injunction, inappropriate at that stage. Preservation orders protect the substratum of the dispute pending determination of title at the main hearing.
Whether proceedings should be stayed pending Malindi ELC No. 49 of 2022
Stay refused
Although both suits concern the same property and similar reliefs, the sub judice doctrine requires the same parties or persons claiming under them. The current 1st and 2nd defendants are not parties to the earlier suit; the earlier suit is effectively non-existent, subject to a pending dismissal motion for want of prosecution, and the stay applicant failed to disclose that motion.
Whether Antonio De Gregorio should be joined as a party
Joinder refused
Applying Muruatetu/Fanikiwa criteria and Order 1 Rule 10, the intended interested party demonstrated no present interest in the property since he transferred title to the 1st and 2nd defendants in 2024. His role is at most to support the title he transferred, making him a witness rather than a party; his defence of his title continues in ELC No. 49 of 2022, which remains active.
Legal principles established
#- The Giella v Cassman Brown sequential test governs interlocutory injunctions
- A prima facie case is a genuine and arguable case showing an apparent infringement of a right
- Sub judice requires identical subject matter and same parties or their representatives
- Joining an interested party requires a formal application demonstrating interest, prejudice and non-duplicative submissions
Court orders
#- 1.Notice of Motion dated 11th November 2024 allowed to the extent that status quo orders in respect of the suit property be maintained — no further dealing, transfer or charging of the same till the matter is heard and determined
- 2.The 1st, 2nd and 3rd Defendants restrained from interfering with the survey records regarding the suit property described as CR. No. 46305, Land Survey Plan No. 299522, Kilifi, and assigned LR. 17835/6 (Original No. 17835 Kilifi) and from making further entries on LR No. 17835/6 until this suit is heard and determined
- 3.The 1st and 2nd defendants to remain in possession till the matter is heard and determined, pursuant to the Deputy Registrar's visit
- 4.No further construction on the suit property till the matter is heard and determined
- 5.Notice of Motion dated 29th November 2024 seeking stay of proceedings dismissed
- 6.Notice of Motion dated 2nd December 2024 seeking joinder of Antonio De Gregorio dismissed
- 7.Costs in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; interim relief under Civil Procedure Rules Order 1 Rule 10 and general injunction jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lawler & 2 others; Gregorio (Intended Interested Party) (Environment and Land Case E115 of 2024) [2025] KEELC 5039 (KLR)", Case Analysis (2025). ELC Case No. 49 of 2020 (Malindi ELC No. 49 of 2022 referred as related suit) — Malindi ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5039/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.