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ELCDismissedNotice of Motion dated 22nd July 2025 (file number not stated in judgment)· [2026] KEELC 1159 (KLR)

Kimani & another (Suing as the legal representatives of Estate of Hannah Njoki Njoroge - Deceased) v Njuki (Environment and Land Miscellaneous Application E210 of 2025) [2026] KEELC 1159 (KLR)

Environment and Land Court
19 February 2026
AOA. OMOLLO
3,201 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The court dismissed the landowners' bid to stop their neighbour's construction, ruling they must first ask the Land Registrar to fix the boundary.

What this practically means

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Executive summary

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The Applicants moved the court by Notice of Motion dated 22nd July 2025 seeking orders restraining the Respondent from construction, blocking an access road and fencing any section of L.R. No. Dagoretti/Mituini/268 pending survey, demarcation and fixation of beacons by the Land Registrar, or in the alternative, an order compelling the Registrar to survey and demarcate within 14 days. The background was the judgment of 29th February 2024 in Milimani ELC Suit No. 850 of 2007 (George Kimani Njuki v Hannah Njoki Njoroge), which awarded the Respondent one acre out of the six-acre parcel by adverse possession. The Applicants alleged that despite no survey or subdivision, the Respondent had fenced off the entire six acres and blocked an access road in use for over thirty years. The Respondent filed a preliminary objection on res judicata and a replying affidavit, contending he has always occupied three acres plus the decreed one acre as one fenced parcel. The court framed two issues: res judicata and merit. On the first, it held the Motion was not barred because the earlier suit dealt only with entitlement to one acre, whereas the present grievance concerns encroachment beyond that boundary, fencing and access. On merit, the court held the application premature: section 18 of the Land Registration Act vests boundary determination in the Land Registrar, and the Applicants had neither approached the Registrar nor proved the alleged fencing or blockage of the access road. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Motion is res judicata

Holding

The Motion is not res judicata because the earlier suit concerned only entitlement to one acre by adverse possession, whereas the present grievance concerns the manner of exercising that entitlement, alleged encroachment beyond the adjudicated boundary and obstruction of access

Reasoning

The court compared the pleadings, issues and reliefs in ELC Suit No. 850 of 2007 with the present Motion. The former suit was confined to a claim for adverse possession over a one-acre portion and was decided in the Respondent's favour. The present application does not seek similar relief; it concerns alleged encroachment beyond the adjudicated boundary, fencing, obstruction of an access road, and the need for survey and demarcation pending ascertainment of true boundaries.

p. 5
02

Whether the Motion is merited

Holding

The application is premature and without merit; boundary determination is for the Land Registrar under section 18 of the Land Registration Act, and the Applicants neither approached the Registrar nor proved the alleged fencing and blocked access

Reasoning

The Applicants did not plead that they approached the Land Registrar and were failed. The court cited Azzuri Properties for the rule that boundary identification must first go to the Land Registrar, the court lacking technical capacity. The Applicants also failed to disclose when the fencing was done; the photographs did not prove fencing of the entire six acres or blockage of the access road. Injunctions could only issue after boundary re-establishment established encroachment.

p. 6

Legal principles established

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  • Where a dispute revolves around the identification or fixing of land boundaries, the Land Registrar must first undertake the exercise before the court intervenes
  • Res judicata is determined by comparing the parties, issues and reliefs; a subsequent application seeking different relief is not necessarily barred

Court orders

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  1. 1.The application is dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Land ActSections 152A, 152E, 152F
  • Civil Procedure ActSections 3, 3A and 7
  • Land Registration ActSection 18
  • Survey Act

Cases cited (8)

  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • Henderson v Henderson
    (1843) 67 ER 313
  • Attorney General & Another v ET
    [2012] eKLR
  • Omondi v National Bank of Kenya & Others
    [2001] EA 177
  • Njanju vs Wambugu & Another
    HCC No. 2340 of 1991 (unreported)
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport & Infrastructure & 3 others
    (Petition No. 17 of 2015) [2021] KESC 39 (KLR)
  • Azzuri Properties v Pink Properties Ltd
    [2018] eKLR
  • George Kimani Njuki vs Hannah Njoki Njoroge
    Milimani ELC Suit No. 850 of 2007
Jurisdiction invoked
Article 159(2)(d) of the Constitution, Sections 152A, 152E and 152F of the Land Act, 2012 and Sections 3 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, "Kimani & another (Suing as the legal representatives of Estate of Hannah Njoki Njoroge - Deceased) v Njuki (Environment and Land Miscellaneous Application E210 of 2025) [2026] KEELC 1159 (KLR)", Case Analysis (2026). Notice of Motion dated 22nd July 2025 (file number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1159/eng@2026-02-19

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