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ELCDismissed

Menza v Charo & 7 others (Environment and Land Case E048 of 2025) [2025] KEELC 6957 (KLR)

Environment and Land Court
9 October 2025
EME. K. Makori
1,605 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Malindi dismissed both a jurisdictional challenge and an injunction bid, ruling fraud claims over adjudicated land titles must go to full trial.

What this practically means

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Executive summary

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The Environment and Land Court at Malindi (E. K. Makori, J) simultaneously heard the Defendants' preliminary objection dated June 4, 2025 and the Plaintiff's Notice of Motion dated May 13, 2025 seeking a temporary injunction in a land dispute over a plot in a declared adjudication section. The Defendants argued the court lacked jurisdiction because the suit contravened Sections 29 and 30 of the Land Adjudication Act and Section 7 of the Civil Procedure Act, the issues having been determined by adjudication committees, rendering the suit an abuse of process. The Plaintiff countered that adjudication had concluded with issuance of title Kilifi/Mwanda/Mnalamweni/1738 on September 17, 2021, so res judicata did not apply. Applying Section 30(1) of the Land Adjudication Act as interpreted in Bhaijee v Nondi, the court found the adjudication process concluded, the appeal to the Minister exhausted, and the Plaintiff holding a title; any fraud in implementing the Minister's award could only be tried by the court, so the PO was dismissed. On the injunction, applying Giella v Cassman Brown and Mrao v First American Bank sequentially, the court held that the Plaintiff's title was itself challenged as conflicting with the Minister's decision and fraudulently obtained, so no prima facie case with probability of success was established at the interlocutory stage; the claim was a matter for trial. Both the PO and the application were dismissed with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the PO is sustainable
  2. 2.whether the application before us has met the threshold set in the leading case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 for granting a temporary injunction

Key legal issues

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Whether the preliminary objection on jurisdiction and res judicata was sustainable

Holding

The PO was dismissed; the adjudication process had concluded, the appeal to the Minister exhausted, and the alleged fraud in implementing the Minister's award could only be tried by the court, so res judicata did not apply.

Reasoning

Section 30(1) of the Land Adjudication Act bars proceedings in an adjudication section before the register becomes final, but the court found the process concluded, the Minister's appeal exhausted with implementation directions, and the Plaintiff holding a title. Whether that title was obtained against the Minister's decision raises fraud, which only this court can try; hence the adjudication committees' prior proceedings did not render the suit res judicata.

p. 3
02

Whether the Plaintiff met the threshold for a temporary injunction

Holding

The application failed because the Plaintiff's title is itself challenged as fraudulent, and an injunction cannot issue on a contested title pending trial.

Reasoning

Applying Giella v Cassman Brown sequentially, the court found two conflicting interests: the Plaintiff's registered title versus the Defendants' claim that the title contradicts the Minister's decision and was fraudulently obtained. Given that live dispute on the very foundation of the claimed right, the prima facie case with probability of success was not established at the interlocutory stage, and the matter must proceed to trial.

p. 4

Legal principles established

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  • A preliminary objection consists of a point of law which, if urged, may dispose of the suit.
  • Consent of the adjudication officer under Section 30(1) of the Land Adjudication Act is a condition precedent to a valid suit concerning land in an adjudication section.
  • Once the adjudication process has concluded and the appeal to the Minister exhausted with a title issued, res judicata does not bar a suit alleging fraud in the implementation of the Minister's award.

Court orders

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  1. 1.the Preliminary Objection (PO) dated June 4, 2025, and the Notice of Motion dated May 13, 2025, are hereby dismissed
  2. 2.Costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EM
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) jurisdiction of the Environment and Land Court; suit concerning land in an adjudication section governed by Section 30(1) of the Land Adjudication Act

Relief refused

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Temporary injunction sought by the Plaintiff by Notice of Motion dated May 13, 2025

An injunction cannot issue based on a title that is being challenged; that is a matter for trial.

p. 4

Costs

Costs in the cause

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

At this stage, then, an injunction cannot be issued based on a title that is being challenged. It is a matter for trial.
p. 4injunction on contested title
At the end, the Preliminary Objection (PO) dated June 4, 2025, and the Notice of Motion dated May 13, 2025, are hereby dismissed.
p. 4final orders
the issue of fraud in the implementation of the Minister's award can only be tried in this Court; therefore, res judicata does not apply.
p. 3res judicata and fraud in adjudication implementation

Issues in the judgment

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minor

The judgment does not print the names or case number of the parties or the suit; parties are referred to only as 'Plaintiff' and 'Defendants'.

minor

Citation of Giella v Cassman Brown appears garbled as '[973] EA' in the judgment.

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, "Menza v Charo & 7 others (Environment and Land Case E048 of 2025) [2025] KEELC 6957 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6957/eng@2025-10-09

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