Republic v Malindi Musketeers Limited & 3 others; Kenga & 8 others (Ex parte Applicants) (Environment and Land Judicial Review Case E001 of 2025) [2026] KEELC 2096 (KLR)

The court accepted that among the ex parte applicants, the confirmed administrator is party to the suit and the others sue in their own right as persons aggrieved by the 3rd respondent's failure to implement the NLC determination. Because the parties' materials show one applicant has letters of administration, the issue cannot be resolved summarily on a preliminary objection.

Relying on Section 6 of the Civil Procedure Act and authorities including Nguruman and the Supreme Court's articulation in NCHR v AG, the court held that sub judice applies to suits filed later over the same subject matter between the same parties. From the CTS, this JR was filed four days before the ELC suit, so it is the applicants who could invoke the doctrine, not the respondents. No material was placed before the court on Malindi HCC No. 54 of 2006.

The court agreed with the respondents that the ownership dispute and the challenge to the NLC determination are properly before the ELC in the plaint filed by the 1st respondent. The applicants had not engaged the 3rd respondent to rectify or cancel the title, and even if moved, the pending ELC suit would prevent rectification while the NLC decision is under challenge. JR would therefore be premature; the ELC suit should take precedence.

The 1st respondent argued the application was time-barred, being filed over six months after the NLC decision of June 21, 2024. The court noted the application was filed nearly a year later, but held that the applicants had not shown they approached the Land Register and no specific date was indicated when the 3rd respondent declined enforcement, so no further discussion was needed.