Philemon Aloo Oniala, Mike Kipkorir Kipkwet Binot Daniel Onginga Ogweno t/a Wilmade Investments v Njiru Housing Development Limited; Bondeni Maili Saba Jua Kali Association (Interested Party) (Environment and Land Case E648 of 2025) [2026] KEELC 593 (KLR)
The bottom line
#The Environment and Land Court set aside conservatory orders obtained without disclosing an earlier pending suit over the same Ruai property, but froze construction.
What this practically means
#Executive summary
#Key legal issues
#Whether an injunction issued on non-disclosure of a parallel pending suit should be set aside
Yes; the plaintiffs obtained the conservatory orders without disclosing ELCLC No. E549 of 2025, a pending suit over the same property and cause of action, which was material non-disclosure
The court applied Order 40 Rule 7 and case law holding that an injunction obtained by concealment of material facts will be discharged. The plaintiffs' failure to disclose that Justice Mbogo had declined similar injunctive orders in ELCLC E549 of 2025 was not controverted. Since the same proprietary dispute was pending in the earlier suit, the orders were obtained misleadingly and fell to be discharged.
Whether the doctrine of sub judice under section 6 of the Civil Procedure Act applies
Yes; ELCLC No. 549 of 2025 seeks determination of proprietary rights over the suit property on the same cause of action and is still active
Citing section 6 of the Civil Procedure Act and the Supreme Court's decision in Kenya National Commission on Human Rights v Attorney General, the court held that where two suits over the same subject matter between parties claiming under the same title are pending, the later suit should be stayed. The existence of the earlier active suit rendered this matter sub judice and was a material fact concealed from the court.
Legal principles established
#- An interlocutory injunction obtained by concealment of material facts will be discharged on the application of the aggrieved party
- The sub judice rule bars a court from trying a matter directly and substantially in issue in a previously instituted suit between the same parties litigating under the same title
Court orders
#- 1.The conservatory orders issued on 22nd December 2025 and 20th January 2026 be and are hereby set aside and/or discharged forthwith
- 2.Pending the hearing and determination of the suit, no construction works and/or new developments on LR No. 10905 Ruai Nairobi LR No. 43/3 (Survey Plan No. 130014, Grant No. LR 4348, LR No. 43/37-69, now Nairobi Block 210/2-34)
- 3.The OCS of Ruai Police Station to ensure compliance
- 4.Costs of the application to be borne by the plaintiffs/respondents
- Jurisdiction invoked
- Inherent jurisdiction and Order 40 Rule 7 of the Civil Procedure Rules (application to discharge, vary or set aside an injunction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philemon Aloo Oniala, Mike Kipkorir Kipkwet Binot Daniel Onginga Ogweno t/a Wilmade Investments v Njiru Housing Development Limited; Bondeni Maili Saba Jua Kali Association (Interested Party) (Environment and Land Case E648 of 2025) [2026] KEELC 593 (KLR)", Case Analysis (2026). ELC (Nairobi) — Notice of Motion dated 26th January 2026 (suit over Land Reference Number 10905 Ruai). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/593/eng@2026-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.