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ELCPartially AllowedPetition dated 17/01/2023 (Environment and Land Court, Machakos)· [2025] KEELC 8460 (KLR)

Namunyak Self Help Group & 89 others v Mukwano Distributors Limited & 3 others; Attorney General & 4 others (Interested Parties) (Environment and Land Petition E001 of 2023) [2025] KEELC 8460 (KLR)

Environment and Land Court
2 December 2025
3,491 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Machakos (A. Y. Koross, J) determines two notices of motion in a constitutional petition. The petitioners, claiming to be about 300 families resident on LR No. 26700/3 (Grant I.R. No. 119942) for over 40 years, sought conservatory orders restraining eviction, interference and dealings with the land and structures on it, alleging threatened violations of rights to life, dignity, property, housing, worship and fair administrative action. The 1st and 2nd respondents sought dismissal of the petition as res judicata and sub judice, relying on a prior suit, Mukwano Distributors Limited v Sanoye, in which the 1st respondent obtained judgment and eviction orders, now on appeal. The court framed two issues: res judicata and sub judice, and the threshold for conservatory orders. It found the petition is not res judicata: the parties differ (the former defendant Seuri Legusi Sanoye is not a petitioner), the subject matter differs (different grant numbers), and the claims differ in title and relief. For the same reasons it is not sub judice despite the pending appeal. On conservatory relief, applying CREAW and Uhuru Secondary School, the court found a prima facie case from photographs of occupancy, the registered chain of title, 2008 Land Dispute Tribunal decisions, and an unrebutted Ministry of Lands letter declaring the 1st respondent's title certificate fake. The respondents' motion was dismissed; conservatory orders were granted pending determination of the petition; mention was set for directions; costs were awarded in the cause. Delivered at Machakos on 2 December 2025.

Key legal issues

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01

Whether the petition is res judicata

Holding

Not res judicata: the parties, subject matter and titles differ from the former suit

Reasoning

The former suit was brought by the 1st respondent only against Seuri Legusi Sanoye, who is not a party to this petition, so the parties are not the same. Although both parcels bear LR No. 26700/3, the grant numbers differ (I.R. No. 119946 in the former suit versus I.R. No. 119942 here), so the subject matter is different. The claims also differ: the former suit sought declaration and eviction, while this petition alleges threatened violations of constitutional rights. The court also questioned why the 1st respondent holds two sets of certificates of title over the same location.

p. 5
02

Whether the petition is sub judice

Holding

Not sub judice despite the pending appeal in the former suit

Reasoning

Section 6 of the Civil Procedure Act bars trial where the matter in issue is pending in a previously instituted suit between the same parties litigating under the same title. Applying its res judicata findings, the court held the parties are not the same, the issues are not identical and the parties litigate under different titles, so the petition is not sub judice notwithstanding the appeal against the former suit's judgment.

p. 6
03

Whether the petitioners satisfied the threshold for conservatory orders

Holding

Yes - a prima facie case was established and denial would render the petition nugatory

Reasoning

Applying the established principles (prima facie arguable case with likelihood of success; prejudice; constitutional values; futility; public interest), the court relied on photographs of occupancy, the title chain registered in 2009-2015, tribunal decisions of December 2008 allegedly awarding the land to the petitioners, and an unrebutted Ministry of Lands letter of 30/07/2020 calling the 1st respondent's certificate of title fake. The respondents did not oppose the motion or address this issue.

p. 7

Legal principles established

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  • Elements required before a matter is found res judicata
  • Threshold for a conservatory order in a constitutional petition
  • Res judicata applies to all categories of matters, including constitutional rights

Court orders

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  1. 1.The notice of motion dated 29/03/2023 is dismissed
  2. 2.A conservatory order restraining the respondents and their agents from interfering, entering, encroaching, alienating, building, trespassing, evicting the petitioners or transacting on LR No. 26700/3, Grant I.R No. 119942, pending hearing and determination of the petition
  3. 3.A conservatory order restraining the respondents and their agents from interfering with, demolishing, entering, alienating or otherwise dealing with churches, mosques, places of worship, schools and business premises erected on the suit property pending hearing and determination of the petition
  4. 4.A mention date to be given for directions on the hearing of the petition
  5. 5.Costs shall be in the cause
Jurisdiction invoked
Article 23 of the Constitution of Kenya 2010 (jurisdiction to redress threats to rights in the Bill of Rights, including conservatory orders)

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, "Namunyak Self Help Group & 89 others v Mukwano Distributors Limited & 3 others; Attorney General & 4 others (Interested Parties) (Environment and Land Petition E001 of 2023) [2025] KEELC 8460 (KLR)", Case Analysis (2025). Petition dated 17/01/2023 (Environment and Land Court, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8460/eng@2025-12-02

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