Omar v Seif & 5 others (Environment and Land Petition E005 of 2025) [2025] KEELC 7153 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a Mombasa landowner to stay on disputed land pending trial, ruling the case was not barred by earlier litigation.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition is res judicata having regard to ELCPET No. 6 of 2018 and CMELC No. 449 of 2023
Not res judicata. The petitioner was different from the petitioners in the earlier petition with no evidence they represented occupants generally; the 2023 determination by the 5th respondent post-dated the 2019 judgment; and the lower court suit was dismissed for want of prosecution, not on the merits.
The court applied section 7 of the Civil Procedure Act and the Bernard Mugo Ndegwa test. The 1st respondent produced no evidence that the earlier petitioners litigated on behalf of all occupants, so the parties were not the same. The recommendation to revoke the allotment dated 24th May 2023 could not have been raised in the earlier suit concluded in 2019. CMELC No. 449 of 2023 was dismissed for want of prosecution and thus not heard on the merits.
Whether the petitioner met the threshold for conservatory orders
Yes. The suit property was once government land, plots had been advertised for sale, and the unresolved factual questions made it fair and just to preserve the property pending trial.
The court applied the principles in Board of Management of Uhuru Secondary School and Gatirau Peter Munya, noting conservatory orders bear a public law connotation and should be granted on the inherent merits bearing in mind public interest and constitutional values. As the court could not determine at interlocutory stage whether the advertised plots arose from the suit property, it preserved the suit property.
Costs
Costs of the application to abide the outcome of the petition.
Section 27 of the Civil Procedure Act provides costs follow the event, but since the prayers in the petition are not necessarily for individual benefit, the judge directed costs to await the final determination.
Legal principles established
#- A suit is barred by res judicata only when the earlier suit was heard and determined on the substantive merits; dismissal for want of prosecution does not trigger the plea
- At interlocutory stage, where factual questions remain unresolved, conservatory orders may issue to safeguard the suit property pending determination of the petition
Court orders
#- 1.Prayer 3 granted: an order barring the 1st and 2nd respondents, by themselves, their agents, servants or any other person acting under their authority, from evicting, demolishing the petitioner's structures, alienating, disposing of or in any other manner interfering with the petitioner's quiet use, enjoyment and occupation of all that parcel of Land 331 Section I/MN CR No. 1729 and any resultant subdivision thereof, situate at Utange, Barawa area within Mombasa County, pending the hearing and determination of the petition
- 2.Prayer 4 (conservatory order barring the 3rd respondent from making any entries in respect of the suit properties) having been conceded to by the 3rd respondent and allowed on 16th June 2025, remains in force and does not need further determination
- 3.Costs in the application to abide the outcome of the petition
- Jurisdiction invoked
- Not expressly stated; petition invoking the Bill of Rights and conservatory jurisdiction of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar v Seif & 5 others (Environment and Land Petition E005 of 2025) [2025] KEELC 7153 (KLR)", Case Analysis (2025). Mombasa ELC Petition (notice of motion dated 27th May 2025) - exact petition number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7153/eng@2025-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.