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ELCPartially AllowedELC (Nairobi) — Notice of Motion dated 26th January 2026 (suit over Land Reference Number 10905 Ruai)· [2026] KEELC 593 (KLR)

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)

Environment and Land Court
10 February 2026
2,443 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a notice of motion dated 26th January 2026 by the defendant in a land suit over LR No. 10905 Ruai Nairobi, seeking review, variation and setting aside of conservatory injunctive orders issued on 22nd December 2025 and 20th January 2026. The applicant contended the orders were obtained through concealment of the material fact that a parallel suit, NRB ELCLC No. E549 of 2025 (Philemon Aloo Oniala & Others t/a Wilmade Investments v Njiru Housing Development Limited), was pending before Justice Mbogo, in which similar injunctive relief had been refused and the matter was set down for inter partes hearing. The plaintiffs did not controvert those facts, instead arguing that the applicant lacked proprietary interest following a judgment in ELC 1235 of 2015. The proposed interested party supported the application. Relying on Order 40 Rule 7 and the factors distilled in Atlas Copco Customer Finance AB v Polarize Enterprises, and applying the principle from Ragui v Barclays Bank of Kenya that an injunction obtained by concealment of material facts will be discharged, Judge Mohammed N. Kullow found material non-disclosure and that the sub judice rule under section 6 of the Civil Procedure Act applied, the same cause of action being pending in the earlier active suit. The court set aside the conservatory orders but maintained a restraint on construction works and new developments on the suit property pending the hearing of this suit, directed the OCS Ruai Police Station to ensure compliance, and awarded costs of the application to the defendant. The judgment is a first-instance interlocutory ruling; no decision below was disturbed.

Key legal issues

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01

Whether an injunction issued on non-disclosure of a parallel pending suit should be set aside

Holding

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

Reasoning

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.

p. 5
02

Whether the doctrine of sub judice under section 6 of the Civil Procedure Act applies

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The conservatory orders issued on 22nd December 2025 and 20th January 2026 be and are hereby set aside and/or discharged forthwith
  2. 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. 3.The OCS of Ruai Police Station to ensure compliance
  4. 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

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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, "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.