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ELCDismissedELCLC E002 of 2025· [2026] KEELC 592 (KLR)

Ndatani Enterprise Limited & 22 others v Kombo & 78 others (Environment and Land Case E002 of 2025) [2026] KEELC 592 (KLR)

Environment and Land Court
5 February 2026
2,091 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Mombasa refused to strike out a land dispute, instead joining two suits over the same plot into one trial.

What this practically means

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Executive summary

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The 1st to 75th defendants in this suit, filed by Ndatani Enterprise Company Limited and another as plaintiffs claiming recovery of subdivisions of Plot No. 274/I/MN from persons they called trespassers, moved the court by notice of motion dated 25.04.2025 under Order 2 Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules and Section 6 of the Civil Procedure Act. They sought striking out of the plaintiffs' suit with costs and a stay of proceedings on the ground that the suit was sub judice, being duplicative of Mombasa ELC No. E148 of 2021, in which they (as plaintiffs) claim Plot No. 274/I/MN by adverse possession, an originating summons that had been converted into a plaint filed on 15.01.2025. The plaintiffs conceded the existence of the earlier suit but explained that they filed the present suit on 16.01.2025 - before being served with the converted plaint on 24.01.2025 - out of necessity to protect their interests. The court framed two issues: whether the suit should be stayed or struck out, and costs. Holding that the two suits present competing claims over the same parcel (ownership by registration versus adverse possession), with common questions of law and fact, similar evidence and witnesses, and no prejudice to any party, the court found the application unmerited and, on its own motion, consolidated the two suits for trial and disposal, designating ELC No. E148 of 2021 as the lead file, and directed a mention on 17.02.2026. Costs of the application were made costs in the cause. The ruling was delivered virtually at Mombasa on 5 February 2026 by Y. M. Angima, J.

Key legal issues

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01

Whether this suit should be stayed or struck out as sub judice or an abuse of process given ELC No. E148 of 2021

Holding

The application was dismissed; the suits raise common questions of law and fact on the same parcel and were consolidated for trial instead of being stayed or struck out

Reasoning

The court found two competing claims over the same parcel - one asserting ownership by registration, the other by adverse possession - capable of being disposed of together. The plaintiffs in this suit were not parties to the earlier suit when they filed, having been served only after instituting it. Finding common questions of law and fact, identical evidence and witnesses, and no prejudice to any party, the court exercised its discretion to consolidate rather than stay or strike out.

p. 4
02

Whether consolidation was appropriate

Holding

Yes; consolidation under Order 11 Rule 3(h) facilitates expeditious disposal and no party would suffer prejudice

Reasoning

Relying on the Supreme Court's guidance in Law Society of Kenya v Centre for Human Rights and Democracy, the court was satisfied that the suits turn on similar issues concerning the disputed property, the same evidence and witnesses would be deployed, orders in one suit would bear on the other, and no injustice would be occasioned. It therefore consolidated the suits of its own motion with ELC No. E148 of 2021 as the lead file.

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03

Who shall bear the costs of the application

Holding

Costs in the cause, notwithstanding the general rule that costs follow the event

Reasoning

Although the defendants were unsuccessful and costs ordinarily follow the event under Section 27 of the Civil Procedure Act, the court considered that it decided to consolidate the two suits on its own motion rather than on the application, and therefore directed that costs be in the cause.

p. 4

Legal principles established

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  • Consolidation of suits is intended to facilitate efficient and expeditious disposal of disputes where they turn on the same or similar issues and no injustice is occasioned
  • Costs follow the event in accordance with Section 27 of the Civil Procedure Act unless the court, for good reason, directs otherwise

Court orders

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  1. 1.The 1st to the 75th defendants' application dated 25.04.2025 is dismissed
  2. 2.An order consolidating ELC No E148 of 2021 and ELCLC E002 of 2025 for trial and disposal
  3. 3.The case file ELC No. E148 of 2021 shall be the lead file where all the proceedings shall henceforth be recorded
  4. 4.The consolidated suits to be mentioned on 17.02.2026 for directions on trial
  5. 5.The costs of the application shall be in the cause
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; Civil Procedure Act (Sections 1A, 1B, 3A, 6, 27) and Civil Procedure Rules (Order 2 Rule 15, Order 11 Rule 3(h), Order 51 Rule 1)

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, "Ndatani Enterprise Limited & 22 others v Kombo & 78 others (Environment and Land Case E002 of 2025) [2026] KEELC 592 (KLR)", Case Analysis (2026). ELCLC E002 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/592/eng@2026-02-05

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