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ELCPartially AllowedELC Case (Kwale) – applications dated 9th October 2024, 10th March 2025 and 22nd April 2025· [2025] KEELC 6406 (KLR)

Baobab Diagnostics Limited v Wanja & 3 others (Environment and Land Case E064 of 2024) [2025] KEELC 6406 (KLR)

Environment and Land Court of Kenya
29 September 2025
14,134 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~57 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court froze all dealings over a disputed Kwale property, penalised parties who sued in two courts at once, and left demolition decisions for trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (L.L Naikuni, J) determined three consolidated applications in a dispute over land Title No. Kwale/Galu Kinondo/27, where the Plaintiff, Baobab Diagnostics Limited, and the 2nd Defendant, Galupaeonia Limited, hold rival title deeds. The Plaintiff, registered as proprietor in 1984 as Baobab Investments Limited, discovered in August 2024 that the 1st Defendant, Mary Wanja, had secured a parallel registration and transferred the land to the 2nd Defendant, which began extensive development. DCI investigations revealed alleged forgery of the title, green card and Land Control Board consent, prompting the Kwale Land Registrar to require surrender of the Defendants' title and initiate de-gazettement. The court framed three issues. First, it dismissed the 2nd Defendant's application dated 10th March 2025 for restoration of status quo ante, holding that the Defendants' parallel suit in Kwale MC ELC/E055/2024 over the same subject matter engaged the sub-judice doctrine under Section 6 of the Civil Procedure Act, and that their forum shopping amounted to abuse of court process. Second, applying the Giella v Cassman Brown test and Order 40 Rule 1, it allowed the Plaintiff's application dated 9th October 2024 in part, granting a temporary injunction restraining the Defendants from entering, accessing, leasing, selling, transferring or interfering with the suit property pending trial, having found a prima facie case, irreparable harm from ongoing construction, and the balance of convenience in the Plaintiff's favour. The court declined the demolition order sought as it would be final in nature at an interlocutory stage. Third, by consensus, the DCI Headquarters was joined as an interested party with liberty to produce investigation documents. Costs of both applications were placed in the cause, with a pre-trial conference set for 12th November 2025 and hearing for 24th February 2026.

Key legal issues

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01

Whether the 2nd Defendant's application dated 10th March 2025 for status quo ante orders was merited

Holding

Dismissed; the 2nd and 3rd Defendants were already litigating a similar suit over the same subject matter before the lower court (Kwale MC ELC/E055/2024), and entertaining their further applications offended the sub-judice doctrine and amounted to forum shopping and abuse of court process.

Reasoning

The court noted the existence of a similar suit between the same parties over the same property in the subordinate court, in which the Defendants had already obtained injunctive orders. Relying on Section 6 of the Civil Procedure Act and the Supreme Court's exposition of the sub-judice rule in KNCHR v Attorney General, the court held that indulging the Defendants further would violate sub-judice principles, amount to proliferation and convolution of suits and abuse of judicial process, and their conduct could not be imposed on the Plaintiff.

p. 22
02

Whether the Plaintiff met the Giella v Cassman Brown threshold for a temporary injunction

Holding

Yes; a prima facie case was established given the competing titles, irreparable harm was demonstrated by ongoing construction on the suit property, and the balance of convenience tilted in the Plaintiff's favour; a temporary injunction issued restraining the Defendants from interfering with the suit property pending trial.

Reasoning

Applying the tripartite Giella test and Order 40 Rule 1 of the Civil Procedure Rules, the court found the Plaintiff held a title predating the Respondents' title and that ownership and validity of the competing titles were contested matters for trial, satisfying the prima facie threshold. Photographs and the 3rd Respondent's admission of Kshs 8 million in construction showed the property was in danger of being wasted or alienated, establishing irreparable harm and tilting the balance of convenience toward preservation of the substratum of the suit.

p. 24
03

Costs of both applications

Holding

Although costs ordinarily follow the event under Section 27 of the Civil Procedure Act, the court directed that costs of both applications be in the cause given the circumstances of the case.

Reasoning

The court restated the settled principle that costs follow the event unless the court for good reason otherwise directs, citing Section 27 of the Civil Procedure Act and the Rosemary Wairimu Munene authority. In the exercise of its discretion, and considering the interlocutory posture of the matter, it found good reason to order costs in the cause rather than awarding them to either party immediately.

p. 25

Legal principles established

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  • Where a party has already instituted a similar suit over the same subject matter and between the same parties in a lower court, granting that party further audience in a parallel matter offends the sub-judice doctrine under Section 6 of the Civil Procedure Act and amounts to abuse of court process
  • Where rival titles exist over land, a prima facie case for injunction is established by showing a right apparently infringed requiring rebuttal; the court does not conduct a mini-trial at the interlocutory stage
  • Ongoing development on disputed land at an interlocutory stage establishes the risk of irreparable harm and justifies preservation of the property as the substratum of the suit

Court orders

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  1. 1.Temporary injunction issued against the 1st, 2nd and 3rd Defendants/Respondents, their agents, servants and all those claiming under them from entering, accessing, leasing, selling, transferring or in any other way interfering with land Title No. Kwale/Galu Kinondo/27 pending the hearing and determination of the suit
  2. 2.Notice of Motion application dated 10th March 2025 dismissed for lack of merit
  3. 3.By consensus of the parties, Notice of Motion application dated 22nd April 2025 allowing joinder of the Directorate of Criminal Investigations (DCI) Headquarters as an interested party allowed as prayed and orders granted accordingly
  4. 4.Mention on 12th November 2025 for a Pre-Trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010; hearing of the matter on 24th February 2026
  5. 5.Costs of both applications shall be in the cause
Jurisdiction invoked
Article 40(1) and 40(6) of the Constitution of Kenya 2010, Section 13(5) of the Environment and Land Court Act and Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act

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, "Baobab Diagnostics Limited v Wanja & 3 others (Environment and Land Case E064 of 2024) [2025] KEELC 6406 (KLR)", Case Analysis (2025). ELC Case (Kwale) – applications dated 9th October 2024, 10th March 2025 and 22nd April 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29

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