Francesco v Al-Attas & another; Chief Land Registrar, Nairobi & another (Interested Parties) (Environment and Land Case E053 of 2025) [2026] KEELC 2298 (KLR)
The bottom line
#A Kenyan court blocked construction on a disputed Watamu property, ruling the long-running litigation was not over because earlier court decisions contradicted each other.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is barred by res judicata given the prior decisions in HCC No. 36 of 2004 (consolidated with HCC No. 10 of 2005) and Judicial Review Case No. 924 of 2006 as affirmed on appeal
The preliminary objection fails; res judicata does not apply because there are two conflicting parallel decisions, the parties are different, and the suit property has changed through subdivision and transfer.
The court noted that HCC No. 36 of 2004 (Meoli J) revoked the plaintiff's title Kilifi/Jimba/439, while the Court of Appeal in the judicial review matter (by majority, with Koome JA dissenting) upheld a consent order revoking entries over Plot 671 Watamu and protecting the plaintiff's proprietorship right to Kilifi/Jimba/439. These conflicting outcomes, differing parties, and the subsequent subdivision into L.R. No. 758 mean the instant suit raises a novel cause of action requiring a hearing on the merits.
Whether an interlocutory injunction should issue against the defendants
A temporary injunction was granted to restrain construction on the suit property pending hearing, to preserve the substratum of the suit property.
Applying Order 40 Rule 1 of the Civil Procedure Rules and the Giella v Cassman Brown principles as reiterated in Nguruman, the court found the plaintiff asserted infringement of his rights through trespass and construction, while the defendants filed no replying affidavit to the motion. Given the conflicting prior decisions, the court preserved the property until it determines which of the two decisions prevails at the merits hearing.
Costs of the motions
Costs were awarded to the plaintiff against the respondents.
Having dismissed the preliminary objection and allowed the injunction application, the court ordered that the costs of the motions be borne by the respondents.
Legal principles established
#- Res judicata does not apply where the parties and the suit property in the former suits are different and there are two conflicting/parallel decisions from courts of coordinate jurisdiction
- A distinct parcel of land created by subdivision that was not the subject of the former suit presents a novel cause of action
Court orders
#- 1.The preliminary objection dated 24th May 2025 is dismissed because res judicata does not apply, the parties and suit property in the former suits being different
- 2.Defendants/Respondents are restrained from ferrying construction materials and from continuing to construct a perimeter wall around the suit property and/or from building a permanent structure on the suit property, Kilifi/Jimba/439, until the matter is heard and determined
- 3.The OCS Watamu to ensure compliance
- 4.Costs to be borne by the respondents
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; injunction sought under Order 40 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francesco v Al-Attas & another; Chief Land Registrar, Nairobi & another (Interested Parties) (Environment and Land Case E053 of 2025) [2026] KEELC 2298 (KLR)", Case Analysis (2026). ELC No. E053 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2298/eng@2026-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.