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ELCPartially AllowedNot stated in the ruling (related suit: Nakuru ELC 340 of 2015 - Kenya Airports Authority v Nakuru Teachers Housing Co-operative Society Ltd & 7 others)· [2026] KEELC 2216 (KLR)

Musti Investment Limited v Cabinet Secretary, Ministry of Lands, Public Works, Housing and Urban Development & 4 others; Kenya Airport Authority & another (Interested Parties) (Environment and Land Petition E010 of 2025) [2026] KEELC 2216 (KLR)

Environment and Land Court
22 April 2026
1,818 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Nakuru court lifted orders halting an affordable housing project, ruling that a later judgment on land ownership justified resuming construction.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (L Komingoi J) determines a Notice of Motion dated 23rd February 2026 filed by the 1st to 3rd Respondents under Order 40 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Articles 10, 43 and 201 of the Constitution. The applicants sought to set aside, discharge or vary conservatory orders issued on 15th January 2026 so as to resume construction of an affordable housing project on the suit land. The application was opposed by the Petitioner and the 2nd Interested Party, who argued inter alia that the applicants had filed a Notice of Appeal against the ruling of 15th January 2026 and could not pursue a review simultaneously, that no new matter or error had been demonstrated under Section 80 of the Civil Procedure Act, and that reliance on the judgment in Nakuru ELC 340 of 2015 would determine the Petition at the interlocutory stage contrary to Article 50. The 1st to 3rd Respondents contended the suit land was public utility land compulsorily acquired in 1983, that ownership had since been decided against the Petitioner by Ombwayo J in ELC 340 of 2015 (delivered 16th February 2026), and that circumstances had changed. The court agreed, holding that the judgment constituted a change of circumstances, that a Notice of Appeal does not bar discharge of the orders, and that maintaining the orders would cause the Government substantial financial loss and wastage of public funds. The court set aside and/or discharged the orders of 15th January 2026, allowing the 1st to 3rd Respondents to resume construction, with no orders as to costs.

Key legal issues

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01

Whether the conservatory orders issued on 15th January 2026 should be set aside or discharged on the ground of changed circumstances

Holding

The application was merited; the judgment in ELC 340 of 2015 delivered on 16th February 2026 constituted a change of circumstances, and the orders were discharged to allow construction of the affordable housing project to resume.

Reasoning

The court considered the judgment in ELC 340 of 2015, in which ownership of the suit property was determined against the Petitioner, as a material change in circumstances. Relying on James Juma Muchemi, Atlas Copco and St Patrick's Hill School, the court held it has discretion to discharge an injunction where maintaining it would be unjust. Maintaining the orders would expose the Government to substantial financial loss and wastage of public funds on a publicly funded project. A pending Notice of Appeal does not bar discharge, and the Petitioner would have a remedy if the judgment is ultimately set aside.

p. 4

Legal principles established

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  • A court retains discretion to discharge or vary an injunctive/conservatory order where the circumstances have changed or where the order no longer serves the ends of justice, and the pendency of a Notice of Appeal does not prevent that exercise of discretion.

Court orders

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  1. 1.The orders issued on 15th January 2026 are set aside and/or discharged to allow the 1st to 3rd Respondents to resume construction of the Affordable Housing Project
  2. 2.There be no orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 7
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure ActSection 80
  • Constitution of KenyaArticles 10, 43, 201, 50

Cases cited (9)

  • James Juma Muchemi & Partners Ltd v Barclays Bank of Kenya & Another
    (2012) KEHC 5844 (KLR)
  • Atlas Copco Customer Finance AB v Palarize Enterprises
    (2016) KEHC 7640 (KLR)
  • Mumo Matemo v Trusted Society for Human Rights Alliance & 5 Others
    (2013) eKLR
  • Kariuki v Kariuki
    (1986) KLR 275
  • Republic v Reuben Kandugu Kahihania & 2 Others; John Karugo Kuria (Interested party/applicant)
    (2020) eKLR
  • West Bengal v Kamal Sengupta
    AIR 2009 SC 476
  • National Bank of Kenya Ltd v Njau
    Civil Appeal (No. 211 of 1996)
  • St Patrick's Hill School Ltd v Bank of Africa Kenya Ltd
    (2018) eKLR
  • Kenya Airports Authority v Nakuru Teachers Housing Co-operative Society Ltd & 7 others (Nakuru ELC 340 of 2015)
Jurisdiction invoked
Order 40 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B & 3A of the Civil Procedure Act; Articles 10, 43 & 201 of the Constitution of Kenya

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, "Musti Investment Limited v Cabinet Secretary, Ministry of Lands, Public Works, Housing and Urban Development & 4 others; Kenya Airport Authority & another (Interested Parties) (Environment and Land Petition E010 of 2025) [2026] KEELC 2216 (KLR)", Case Analysis (2026). Not stated in the ruling (related suit: Nakuru ELC 340 of 2015 - Kenya Airports Authority v Nakuru Teachers Housing Co-operative Society Ltd & 7 others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2216/eng@2026-04-22

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