Exclusive Living East Africa Limited v Bulimu (Environment and Land Originating Motion E002 of 2023) [2026] KEELC 850 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Notice of Withdrawal dated 13th February 2024 ought to be adopted
The withdrawal was effective under Order 25 Rule 1 as the suit had not been set down for hearing; the suit stood withdrawn as from 13th February 2024 subject only to costs.
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.
Whether the Defence and Counterclaim are barred by res judicata
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.
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.
Whether the Defendant's application is barred by sub judice
Sub judice concerns would have arisen given the pending appeal and stay application before the Court of Appeal over the same substratum of facts.
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.
Whether an injunction could issue in favour of the Defendant
No injunction could issue because the Defendant's application could not be sustained in a suit that stood withdrawn, with the counterclaim struck out.
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.
Legal principles established
#- 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
#- 1.The Defendant's application dated 16th November 2025 is dismissed with costs
- 2.The Plaintiff's application dated 2nd December 2025 is allowed
- 3.The Defence and Counterclaim dated 18th November 2025 are struck out
- 4.This suit is marked as withdrawn
- 5.Costs of the applications shall be borne by the Defendant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.