Executive Super Rides Limited v Khushi Motors Limited (Environment and Land Case E365 of 2025) [2025] KEELC 7418 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a buyer's emergency orders because it hid key facts from the judge, leaving the property owner in possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte status quo orders of 28th July 2025 were lawfully obtained
They were obtained through material non-disclosure of the Defendant's registered proprietorship and the BPRT proceedings and were set aside
The court found that title had transferred to the Defendant on 29th November 2024 and that BPRT eviction orders of 16th July 2025 were extant, facts not disclosed when the ex parte orders were sought. Applying the duty of full and frank disclosure, the court held that had these matters been disclosed, the orders would not have issued, and it set them aside.
Whether the Court of Appeal orders in Civil Appeal No. E900 of 2024 bind the Defendant
They do not, as the Defendant was not a party to that appeal
Applying privity of proceedings, the court held that appellate orders bind only parties, privies and those claiming under them, absent orders of a public law nature directed to the world at large. The Plaintiff's remedy for any breach of those orders lay in the Court of Appeal, not a fresh suit, which the court found amounted to abuse of process.
Whether the Defendant's directors were in contempt
No; the orders had been set aside and there was no evidence the Plaintiff was in possession when they were made
The court applied the four elements of civil contempt and found the foundational orders vacated. Further, the BPRT orders of 16th July 2025 authorising possession were prima facie evidence the Plaintiff was not in possession on 28th July 2025, and its counsel had confirmed the Defendant took possession on 17th July 2025.
Whether either party satisfied the Giella test for interlocutory injunctions
The Plaintiff did not; the Defendant demonstrated registered title and possession capable of protection
The Defendant was the registered proprietor with an indefeasible title under Section 26(1) of the Land Registration Act, so the Plaintiff had no prima facie right. Its goodwill claim was speculative and required cross-examination. The court nonetheless preserved the status quo as at the ruling date given the pending ownership dispute in the High Court and Court of Appeal.
Whether security for costs should be ordered
No; the Defendant showed no impecuniosity and the sums sought were not costs within Order 26
Applying Section 27 of the Civil Procedure Act, Order 26 Rule 1 and the Westmont framework, the court held that the Kshs. 198 million and Kshs. 50 million demands were an attempt to obtain pre-judgment on the merits through an interlocutory motion, oppressive and offensive to Article 48 access to justice.
Whether the Plaintiff and its advocates should be referred to the DPP for perjury
The court lacks jurisdiction; the Defendant may lodge a complaint with the DPP
Perjury is a criminal offence under Section 108 of the Penal Code; trial jurisdiction vests in the Magistrates' Courts or High Court Criminal Division. Article 157(10) insulates the DPP, and the court cannot assume a prosecutorial role. The Defendant also failed to prove the Defendant actually took possession on 17th July 2025.
Legal principles established
#- A party making an ex parte application owes the court a duty of fullest possible disclosure of all material facts, failing which the advantage obtained will be lost
- An order of a court binds only the parties to the proceedings in which it was made, their privies and those claiming under them
- The Environment and Land Court lacks jurisdiction to make findings of guilt or impose criminal sanctions for perjury; that mandate rests exclusively with the DPP
- There can be no contempt of an order that has been vacated or rendered a nullity
- The registered proprietor's title under Section 26(1) of the Land Registration Act remains indefeasible until lawfully revoked or nullified, notwithstanding pending litigation challenging the sale
- Security for costs is not punitive and requires evidence that recovery of costs would otherwise be illusory
Court orders
#- 1.The applications dated 24th July 2025, 29th July 2025, 1st August 2025, and 11th August 2025 are dismissed as without merit
- 2.The Defendant's application dated 30th July 2025 succeeds partially; the orders issued by the Court on 28th July 2025 are vacated and set aside in their entirety
- 3.The status quo prevailing as at the date of the ruling shall be maintained; the Defendant, being the registered proprietor in possession, shall continue to hold, use and preserve the suit property but shall not undertake any demolition, construction, alienation or other activity that may alter its character or prejudice the rights of either party, pending hearing and final determination of the suit or the orders of the Court of Appeal
- 4.Each party to bear its own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Executive Super Rides Limited v Khushi Motors Limited (Environment and Land Case E365 of 2025) [2025] KEELC 7418 (KLR)", Case Analysis (2025). ELC Suit dated 24th July 2025 (Notice of Motion dated 24th July 2025 with related applications dated 29th July 2025, 30th July 2025, 1st August 2025 and 11th August 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7418/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.