Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Petition (Motion dated 7th August 2025) - not stated in full in judgment· [2026] KEELC 1088 (KLR)

Aress & another (Suing in their Capacity as Residents of Phase II Diamond Estate Association) v Kalicha & 7 others (Environment and Land Petition E034 of 2025) [2026] KEELC 1088 (KLR)

Environment and Land Court
19 February 2026
6,635 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

#

Kisii's Environment and Land Court blocked all development, sale or transfer of two contested Nairobi parcels, protecting residents' claims to public utility land.

What this practically means

#

Executive summary

#
The Petitioners, homeowners and residents of Phase II Diamond Estate, moved the Environment and Land Court at Kisii by Notice of Motion dated 7th August 2025 seeking a temporary injunction restraining the Respondents from developing, selling, transferring or otherwise dealing with L.R. No. 209/17902 (now Nairobi/Block 160/698) and L.R. No. 209/17536/2 (now Nairobi/Block 160/938), which they contend were reserved as public utility land for a nursery school and community centre but were converted to private use contrary to Regulation 10 of the Physical and Land Use Planning Regulations, 2021. The 1st–6th Respondents opposed, pleading res judicata on the basis of earlier suits (ELC No. E136 of 2024 and ELCEPCC No. E006 of 2024) concluded by consent. The 7th Respondent, the developer, denied that the parcels were public land, relied on an amended subdivision plan of 6th April 2007, alleged the 1st Petitioner was a disgruntled former employee, and argued exhaustion and delay. Both Interested Parties (the County and the EACC) supported the Motion. The court framed two issues: res judicata and the injunction threshold. It held the res judicata plea unproved - no consent or adopting judgment was exhibited, a withdrawn suit is not a final determination, and the earlier petitions concerned different parcels. Applying Giella v Cassman Brown and Nguruman sequentially, the court found a prima facie case, likely irreparable harm transcending monetary compensation, and a balance of convenience favouring the Applicants. The Motion was allowed: a temporary injunction issued against all Respondents, police were directed to enforce compliance, and costs were made costs in the cause. An exhaustion argument raised only in submissions was not entertained.

Key legal issues

#
01

Res judicata

Holding

The plea of res judicata fails; the previous suits cited either concerned different parcels, were withdrawn, or remain pending, and no consent or adopting judgment was exhibited

Reasoning

The court applied Section 7 of the Civil Procedure Act and the Supreme Court's exposition in John Florence Maritime. It found that ELC No. E136 of 2024 was withdrawn, which is not a determination 'heard and finally decided'; ELC Petition No. E049 of 2025 remains pending and concerns a different parcel (L.R. No. 209/12341); and ELC Petition No. 939 of 2014 concerned L.R. No. 209/11969. No copy of the alleged consent consolidating ELC No. E136 of 2024 and ELCEPCC No. E006 of 2024 was exhibited, so the court could not ascertain whether the issues were 'directly and substantially' the same.

p. 10
02

Prima facie case for temporary injunction

Holding

The Petitioners established a prima facie case warranting preservation of the suit properties pending full hearing

Reasoning

Weighing the competing subdivision plans, survey maps and allegations of public utility designation, the court found a bona fide and arguable question as to whether the land was reserved for public purposes and whether the ongoing developments were lawful. The Petitioners demonstrated an identifiable interest as residents and beneficiaries of the alleged public utility land. Applying Nguruman, the court did not conduct a mini-trial and made no definitive findings at this interlocutory stage.

p. 12
03

Irreparable harm

Holding

The Petitioners demonstrated a likelihood of irreparable harm not compensable by damages

Reasoning

The court held that continued development and possible alienation of the parcels would extinguish the alleged public character of the land and permanently deprive the community and future generations of social amenities whose value transcends pecuniary estimation. Allegations of unlawful conversion of public land also raise issues of public interest and the integrity of the planning regime under the Physical and Land Use Planning Act, incapable of monetary remedy.

p. 12
04

Balance of convenience

Holding

The balance of convenience favours the grant of injunctive orders

Reasoning

Having found a prima facie case and irreparable harm, the court briefly considered the third Giella limb and stated that it had no doubt that the balance of convenience favours the grant of injunctive orders, without extended reasoning.

p. 12
05

Doctrine of exhaustion raised only in submissions

Holding

The exhaustion argument under Section 130 of the Physical and Land Use Planning Act could not be entertained as it was raised first in submissions

Reasoning

The 7th Respondent asserted for the first time in submissions that the Petitioners should have pursued their grievance before the Liaison Committee under Section 130 of the Physical and Land Use Planning Act. The court held that submissions are not pleadings and declined to entertain the argument at that stage.

p. 10

Legal principles established

#
  • The plea of res judicata must be proved by evidence and cannot be sustained on bare assertion; a withdrawn or pending suit cannot sustain a plea of res judicata
  • Submissions are not pleadings, and a new argument first raised in submissions (there, exhaustion) cannot be entertained
  • Interlocutory injunction principles under Giella v Cassman Brown must be established sequentially, and no definitive findings should be made at the interlocutory stage

Court orders

#
  1. 1.An order of temporary injunction restraining all the Respondents, their agents, servants and assigns from developing, constructing, selling, transferring, leasing, charging and/or in any way dealing with L.R No. 209/17902 (now Nairobi/Block 160/698) and L.R No. 209/17536/2 (now Nairobi/Block 160/938) pending the hearing and determination of the suit
  2. 2.An order directing the Officer Commanding the nearest police station to enforce compliance with the court's orders
  3. 3.Costs shall be in the cause

Authorities

#

Legislation

  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A and 7
  • Civil Procedure Rules, 2010Order 40 Rules 1 and 2; Order 51 Rule 1
  • Physical and Land Use Planning (General Development Permission and Control) RegulationsRegulation 10 (incl. 10(6)) (Legal Notice 253 of 2021)
  • Physical and Land Use Planning Act, No. 13 of 2019Sections 92 and 130
  • Constitution of Kenya, 2010Articles 40, 40(1), 47, 62(1)(c), 64 and 79
  • Fair Administrative Action ActSections 4, 5 and 6
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003Sections 51, 52 and 53
  • Ethics and Anti-Corruption Commission Act, 2011Section 3 and Section 11(1)(j)
  • Physical Planning Act (Cap. 286) (repealed)not specified
  • Halsbury's Laws of England, Vol. 87, 5th Editionmeaning of “setting aside”

Cases cited (12)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    Civil Appeal No. 39 of 2002 [2003] eKLR
  • EWK v JKN
    [2020] eKLR
  • M W K v A M W
    [2016] eKLR
  • Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    (Petition 17 of 2015) [2021] KESC 39 (KLR); [2021] eKLR
  • Henderson v Henderson
    (1843) 67 ER 313
  • Nguruman Limited v Jan Bonde Nielsen & 2 Ors
    [2014] eKLR
  • Rhapta Road Residents Association v County Executive Committee Member, Built Environment & Urban Planning, Nairobi City County & 19 Others
    [2025] eKLR
  • Ngimu Farm Limited v The Attorney General & 2 Others
    [2019] eKLR
  • Alfred Muturi Mutuota v The Land Registrar & 2 Others
    [2025] eKLR
  • Harcharan Singh Sehmi & Another v Tarabana Co. Ltd & 5 Others
    [2025] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules; Regulation 10 of the Physical and Land Use Planning (General Development Permission and Control) Regulations (Legal Notice 253 of 2021)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Aress & another (Suing in their Capacity as Residents of Phase II Diamond Estate Association) v Kalicha & 7 others (Environment and Land Petition E034 of 2025) [2026] KEELC 1088 (KLR)", Case Analysis (2026). ELC Petition (Motion dated 7th August 2025) - not stated in full in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1088/eng@2026-02-19

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