Mohazo Ex-Impo Limited v Amri & 5 others (Environment and Land Case E013 of 2025) [2026] KEELC 617 (KLR)
The bottom line
#A Kwale court protected a registered landowner from illegal excavation, ruling that a paperwork defect in the company's lawsuit was fixable, not fatal.
What this practically means
#Executive summary
#Key legal issues
#Corporate authorization under Order 4 Rule 4 of the Civil Procedure Rules, 2010
The absence of a Board Resolution under the company seal rendered the verifying affidavit defective, but the defect was curable and not fatal at the interlocutory stage; the Plaintiff was directed to regularize within 30 days
The Court acknowledged that Order 4 Rule 4 is mandatory and that several authorities (Microsoft Corporation v Mitsumi, Malta Imports, Krystalline Salt) hold suits filed without proper authority defective. However, relying on Mwilu v Nduulu, Kenyatta University v Mbui and the Lillian S principle that procedure should not defeat substantive justice, it found the omission curable at the interlocutory stage where substantive rights had not been determined, and granted leave to file the resolution.
Whether the suit is barred by sub judice and res judicata by virtue of ELC Petition No. E003 of 2024
Neither doctrine applies: the Plaintiff is not a party to the Petition, no pleadings from that case were produced, and there had been no prior determination of the same issues between the same parties
Applying Section 6 and Section 7 of the Civil Procedure Act, the Court held that res judicata requires a former suit between the same parties or those litigating under the same title, finally decided by a competent court, while sub judice requires a previously instituted suit between the same parties. The Petition involves the County Attorney of Kwale County, NLC and others - entirely different parties - and no evidence of its contents was produced. The Plaintiff cannot have its rights determined in absentia.
Whether the Plaintiff established entitlement to a temporary injunction
All three Giella limbs were satisfied: prima facie case from unchallenged registered title, irreparable harm from irreversible land degradation, and balance of convenience favouring preservation of the suit properties
The Plaintiff produced title deeds, searches and green cards evidencing ownership since 1998, and photographic and documentary evidence of excavation, mining, demolition of walls and violence. The Defendants filed no replying affidavit and produced no evidence of any legal or beneficial interest. The degradation of land, environmental hazard and obstruction of a public road were held incapable of adequate monetary compensation. Injunction granted; ex parte orders confirmed inter partes.
Whether the Defendants' Notice of Motion dated 30th March 2025 made out a case for setting aside the ex parte orders
No basis for review, setting aside, discharge or variation of the orders of 28th February 2025; the orders were confirmed on an inter partes basis
The Defendants' application relied solely on the Order 4 Rule 4 objection (found curable) and the sub judice/res judicata objection (found inapplicable). Having rejected both grounds and found no non-disclosure by the Plaintiff, the Court held no review ground under Section 80 of the Civil Procedure Act and Order 45 Rule 1 was established, and since the matter had now been argued inter partes, it was appropriate to confirm the orders.
Legal principles established
#- Non-compliance with Order 4 Rule 4 of the Civil Procedure Rules (corporate authorization of a verifying affidavit) is a procedural irregularity curable at the interlocutory stage by filing a Board Resolution, and does not justify striking out the suit
- The mere pendency of another suit does not trigger res judicata, and sub judice requires that the parties in the two proceedings be the same or litigating under the same title
- A certificate of title under Section 26(1) of the Land Registration Act constitutes prima facie evidence of absolute and indefeasible ownership, and where unchallenged establishes a prima facie case for injunction
- Where a registered proprietor faces ongoing physical degradation of land by parties with no demonstrated legal or beneficial interest, and who lack capacity to compensate, damages are inadequate and the balance of convenience favours preservation of the status quo
Court orders
#- 1.The Notice of Motion application dated 26th February 2025 is found to be meritorious and allowed
- 2.The ex parte orders issued on 28th February 2025 are confirmed and continue to operate on an inter partes basis
- 3.Temporary orders of injunction issue restraining the 1st to 5th Respondents from trespassing, excavating, mining, extracting building blocks, sand or stones, fencing, constructing, accessing, occupying, selling, alienating, transferring, subdividing or otherwise dealing with Kwale/Diani Complex/423 & 424, interfering with the Plaintiff's possession, threatening or using violence, or demolishing structures pending hearing and determination of the suit
- 4.The O.C.S., Kwale Police Station, is directed to ensure compliance with the orders and provide security to the Plaintiff
- 5.NEMA (6th Respondent) is directed to take immediate action to stop the illegal excavation and mining activities on the suit properties pending hearing and determination of the suit
- 6.The Plaintiff is directed to file and serve a Board Resolution of the Directors under the seal of the company within thirty (30) days to demonstrate compliance with Order 4 Rule 4 of the Civil Procedure Rules
- 7.The Notice of Motion dated 30th March 2025 seeking to stay, set aside, discharge or vary the ex parte orders and strike out the suit is dismissed for lack of merit
- 8.The Defendants' prayer for a temporary injunction against the Plaintiff is dismissed
- 9.The main suit fixed for Mention on 16th April 2026 for Pre-Trial Conference and hearing on 29th September 2026
- 10.Costs of both applications borne by the 1st to 5th Defendants/Respondents, awarded to the Plaintiff/Applicant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; applications brought under Sections 3A and 63 of the Civil Procedure Act, Order 40 Rules 1 & 2, Order 51 Rule 1 of the Civil Procedure Rules and Section 3(3) of EMCA
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohazo Ex-Impo Limited v Amri & 5 others (Environment and Land Case E013 of 2025) [2026] KEELC 617 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/617/eng@2026-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.