Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedMombasa ELC Petition (notice of motion dated 27th May 2025) - exact petition number not stated in judgment· [2025] KEELC 7153 (KLR)

Omar v Seif & 5 others (Environment and Land Petition E005 of 2025) [2025] KEELC 7153 (KLR)

Environment and Land Court
22 October 2025
3,137 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

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

#
This is an interlocutory ruling of the Environment and Land Court at Mombasa (S.M. Kibunja, J) on a notice of motion dated 27th May 2025 filed by the petitioner, Hamisi Abdalla Omar, in a petition concerning land parcel 331 Section I/MN CR No. 1729 and Plot No. 17906 Section I/MN CR No. 51801 at Utange, Barawa, Mombasa. The petitioner sought conservatory orders restraining the 1st and 2nd respondents from evicting him, demolishing his structures, alienating or interfering with his occupation, and restraining the Registrar of Titles from making entries on the suit properties, contending the land was government land fraudulently transferred in 2010. The 1st and 2nd respondents opposed, arguing the petition was res judicata, being caught by Mombasa ELCPET No. 6 of 2018 (judgment of 14th January 2019) and Mombasa CMELC No. 449 of 2023, dismissed for want of prosecution on 21st August 2024. The court framed three issues: res judicata, the threshold for conservatory orders, and costs. Applying section 7 of the Civil Procedure Act and case law, it held the petition was not res judicata: the petitioner was different from the earlier petitioners with no proof they represented all occupants, the 2023 recommendation to revoke the allotment post-dated the earlier judgment, and the lower court suit was not decided on the merits. On the conservatory relief, applying the Uhuru Secondary School and Munya principles, the court held it fair and just to safeguard the suit property pending trial since plots had been advertised for sale. Prayer 3 was granted, prayer 4 had already been conceded and allowed on 16th June 2025, and costs of the application were ordered to abide the outcome of the petition.

Key legal issues

#
01

Whether the petition is res judicata having regard to ELCPET No. 6 of 2018 and CMELC No. 449 of 2023

Holding

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.

Reasoning

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.

p. 5
02

Whether the petitioner met the threshold for conservatory orders

Holding

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.

Reasoning

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.

p. 6
03

Costs

Holding

Costs of the application to abide the outcome of the petition.

Reasoning

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.

p. 6

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. 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. 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. 3.Costs in the application to abide the outcome of the petition

Authorities

#

Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 27
  • Land Titles Ordinancenot specified (original title issued thereunder in 1907)

Cases cited (7)

  • Charity Njanja Mwaniki (Suing on her behalf and 8 other siblings) versus James Mwaniki Gaturu & Another
    [2017] KEELC 119 (KLR)
  • Bernard Mugo Ndegwa -vs- James Nderitu Githae and 2 Others
    (2010) eKLR
  • John Florence Maritime Services Limited & Another versus Cabinet Secretary Transport & Infrastructure & 3 others
    [2021] KESC 39 (KLR)
  • Henderson versus Henderson
    (1843) 67 ER 313
  • Tee Gee Electrics and Plastics Company Ltd versus Kenya Industrial Estates Limited
    [2005] KLR 97
  • Board of Management of Uhuru Secondary School versus City County Director of Education & 2 Others
    [2015] eKLR
  • Gatirau Peter Munya versus Dickson Mwenda Kithinji & 2 Others
    eKLR
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.