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ELCPartially AllowedELC Case of 2023 (Nairobi) — suit number not stated in the judgment; related matters HCCOMM E453 of 2020 and Civil Appeal No. E538 of 2025 referenced· [2026] KEELC 850 (KLR)

Exclusive Living East Africa Limited v Bulimu (Environment and Land Originating Motion E002 of 2023) [2026] KEELC 850 (KLR)

Environment and Land Court
13 February 2026
3,230 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Nairobi land court ruled a property dispute counterclaim came too late and repeated an already-decided case, striking it out with costs against the defendant.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi, delivered by Hon. T. Murigi, J on 13th February 2026, determined two competing applications. The Defendant, Ann Mideva Bulimu, sought a conservatory order restraining the Plaintiff, Exclusive Living East Africa Limited, from wasting, alienating or obstructing her access to the Rivulet Residence Apartments on L.R. No. 209/2389/16, Pangani, claiming an equitable interest arising from an alleged implied partnership or joint venture, and asserting that she had been incorporated as director and shareholder under a gentlemen's agreement and financed the acquisition and construction. The Plaintiff sought adoption of its Notice of Withdrawal dated 13th February 2024 and striking out of the Defendant's counterclaim and application as an abuse of process. The court framed three issues: adoption of the withdrawal, res judicata and sub judice, and whether an injunction could issue. It held that the suit had not been set down for hearing when the Notice of Withdrawal was filed, so under Order 25 Rule 1 the withdrawal took effect upon filing and service, and the suit stood withdrawn from 13th February 2024 subject only to costs. The counterclaim, filed more than a year after the withdrawal and without leave, was procedurally untenable; its subject matter had also been determined in HCCOMM E453 of 2020 (judgment of 1st September 2025), rendering it res judicata, with pending appeal proceedings raising sub judice concerns. The Defendant's application was dismissed and the Defence and Counterclaim struck out; the suit was marked withdrawn, with costs borne by the Defendant.

Key legal issues

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01

Whether the Notice of Withdrawal dated 13th February 2024 ought to be adopted

Holding

The withdrawal was effective under Order 25 Rule 1 as the suit had not been set down for hearing; the suit stood withdrawn as from 13th February 2024 subject only to costs.

Reasoning

Order 25 Rule 1 permits a plaintiff to discontinue a suit not set down for hearing by written notice served on all parties, an absolute right. The suit had been stayed by a ruling dated 24th January 2024 and the Notice of Withdrawal was filed before setting down. Although no affidavit of service was filed, the Defendant's subsequent conduct, including seeking adjournment on 21st October 2025 to take instructions on costs arising from the withdrawal, demonstrated knowledge of it.

p. 5
02

Whether the Defence and Counterclaim are barred by res judicata

Holding

The counterclaim is res judicata: the issues of directorship, shareholding and equitable interest in Rivulet Residences were directly and substantially determined in HCCOMM E453 of 2020 between the same parties.

Reasoning

Section 7 of the Civil Procedure Act bars trial of issues directly and substantially in issue in a former suit between the same parties litigating under the same title, heard and finally determined by a competent court. HCCOMM E453 of 2020, decided on 1st September 2025, involved the same parties and determined the Defendant's alleged directorship, shareholding and financial stake, including ownership and development of Rivulet Residences. The counterclaim seeking declarations of implied partnership or joint venture and an equitable interest relitigates those determined issues.

p. 6
03

Whether the Defendant's application is barred by sub judice

Holding

Sub judice concerns would have arisen given the pending appeal and stay application before the Court of Appeal over the same substratum of facts.

Reasoning

Section 6 of the Civil Procedure Act bars proceedings where the matter in issue is pending in another competent court between the same parties. The Defendant did not deny that a stay application filed on 8th September 2025 is pending before the Court of Appeal in an intended appeal against the High Court judgment. The parties and subject matter overlap, and parallel determinations risk conflicting decisions, though the court's findings on withdrawal and res judicata were dispositive.

p. 7
04

Whether an injunction could issue in favour of the Defendant

Holding

No injunction could issue because the Defendant's application could not be sustained in a suit that stood withdrawn, with the counterclaim struck out.

Reasoning

The injunction under Order 40 Rule 1 was anchored on the Defendant's counterclaim asserting an equitable interest in the suit property. With the counterclaim struck out as procedurally untenable, res judicata and sub judice, and the suit withdrawn effective 13th February 2024, there was no competent claim before the court to support injunctive relief.

p. 7

Legal principles established

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  • Under Order 25 Rule 1, a plaintiff has an absolute right to withdraw a suit not yet set down for hearing by notice in writing served on all parties, and the withdrawal takes effect upon service.
  • A counterclaim may survive withdrawal of the main suit under Order 7 Rule 13, but only if it was properly on the record at the time of withdrawal or filed with leave of the Court.
  • A counterclaim filed in a suit already withdrawn is procedurally untenable.

Court orders

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  1. 1.The Defendant's application dated 16th November 2025 is dismissed with costs
  2. 2.The Plaintiff's application dated 2nd December 2025 is allowed
  3. 3.The Defence and Counterclaim dated 18th November 2025 are struck out
  4. 4.This suit is marked as withdrawn
  5. 5.Costs of the applications shall be borne by the Defendant

Authorities

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Legislation

  • Environment and Land Court ActSection 13(7)
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 3A
  • Constitution of Kenya, 2010Articles 40, 50(1), 53(2), 162(2)(b)
  • Civil Procedure RulesOrder 25 Rule 1
  • Civil Procedure RulesOrder 25 Rule 2
  • Civil Procedure RulesOrder 7 Rule 13
  • Civil Procedure Act, Cap 21Section 7
  • Civil Procedure ActSection 6

Cases cited (3)

  • Beijing Industrial Designing & Researching Institute v Lagoon Development Limited
    [2015] KECA 365 (KLR)
  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties)
    [2020] eKLR
Jurisdiction invoked
Section 13(7) of the Environment and Land Court Act 2011; Articles 40, 50(1), 53(2) and 162(2)(b) of the Constitution of Kenya, 2010; Sections 1A and 3A of the Civil Procedure Act

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, "Exclusive Living East Africa Limited v Bulimu (Environment and Land Originating Motion E002 of 2023) [2026] KEELC 850 (KLR)", Case Analysis (2026). ELC Case of 2023 (Nairobi) — suit number not stated in the judgment; related matters HCCOMM E453 of 2020 and Civil Appeal No. E538 of 2025 referenced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/850/eng@2026-02-13

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