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)
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
#Key legal issues
#Res judicata
The plea of res judicata fails; the previous suits cited either concerned different parcels, were withdrawn, or remain pending, and no consent or adopting judgment was exhibited
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 It found that ELC No. E136 of 2024 was withdrawn, which is not a determination 'heard and finally decided'; ELC Petition No. E049 of 2025 remains pending and concerns a different parcel (L.R. No. 209/12341);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.
Prima facie case for temporary injunction
The Petitioners established a prima facie case warranting preservation of the suit properties pending full hearing
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.
Irreparable harm
The Petitioners demonstrated a likelihood of irreparable harm not compensable by damages
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.
Balance of convenience
The balance of convenience favours the grant of injunctive orders
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.
Doctrine of exhaustion raised only in submissions
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
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.
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.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.An order directing the Officer Commanding the nearest police station to enforce compliance with the court's orders
- 3.Costs shall be in the cause
- 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.