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ELCDismissedPetition dated April 24, 2023 (Malindi ELC)· [2025] KEELC 7547 (KLR)

Vesco Properties Limited v Kenya Power & Lighting Company Limited; Kenya National Highways Authority (Third party) (Environment and Land Petition E015 of 2023) [2025] KEELC 7547 (KLR)

Environment and Land Court
30 October 2025
EME. K. Makori
1,751 words in judgment
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The bottom line

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Kenya's Environment and Land Court at Malindi dismissed a property petition as an abuse of process because a nearly identical earlier case was already pending.

What this practically means

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Executive summary

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The petitioner filed a constitutional petition dated April 24, 2023 before the Environment and Land Court at Malindi, alleging that the respondent encroached on its land (Plots Nos. 6151-6156, subdivisions arising from KILIFI/MTWAPA/407) and erected electricity poles and structures without consent. It sought declarations of violation of Articles 40, 47, 48 and 60, a declaration that the respondent's actions were illegal, a conservatory order restraining trespass, and costs. The respondent (a power utility) answered that its power lines were placed on the road reserve with the approval of KENHA, the third party, which approved relocation of power lines during the dualling of the Nyali-Mtwapa road after payment of fees. KENHA pointed out that the same parcels are the subject of an earlier petition, ELC Petition No. 15 of 2022 (Vescon Properties Ltd v KENHA), in which judgment is set for January 29, 2026. Makori J framed four issues, foremost whether the petition was res sub judice. Relying on the Supreme Court's decision in KNCHR v Attorney General (2020) eKLR, the court held that the earlier petition involved the same parties, the same parcels and substantially identical ownership, encroachment and road-reserve issues, and that the question of ownership had to be resolved before any compensation or trespass claim could be entertained. The court held it should have been stayed, declined to determine the remaining issues ('I down tools'), and dismissed the petition with costs as an abuse of the court process.

Key legal issues

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01

Whether the petition is res sub judice ELC Petition No. 15 of 2022

Holding

Yes; the petition is sub judice the earlier petition and should have been stayed; it is an abuse of process and is dismissed

Reasoning

The former petition, filed earlier between the same parties over the same parcels, raises identical ownership, encroachment and road-reserve issues, with judgment already set for January 29, 2026. The ownership question must be determined before any compensation or trespass claim can arise, so entertaining the later suit risks conflicting decisions and multiplicity of suits.

p. 5

Legal principles established

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  • The res sub judice rule requires that the matter later in time be stayed pending determination of the earlier suit between the same parties over the same subject matter
  • The elements a party must establish to invoke res sub judice

Court orders

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  1. 1.The petition is dismissed with costs
Jurisdiction invoked
Articles 40, 47, 48 and 60 of the Constitution of Kenya, 2010 (enforcement of fundamental rights petition) before the Environment and Land Court

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, "Vesco Properties Limited v Kenya Power & Lighting Company Limited; Kenya National Highways Authority (Third party) (Environment and Land Petition E015 of 2023) [2025] KEELC 7547 (KLR)", Case Analysis (2025). Petition dated April 24, 2023 (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7547/eng@2025-10-30

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