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ELCPartially AllowedELC No. E053 of 2025· [2026] KEELC 2298 (KLR)

Francesco v Al-Attas & another; Chief Land Registrar, Nairobi & another (Interested Parties) (Environment and Land Case E053 of 2025) [2026] KEELC 2298 (KLR)

Environment and Land Court
23 April 2026
4,167 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This interlocutory decision of the Environment and Land Court at Nyeri (Makori J) dealt jointly with the 1st and 2nd defendants' preliminary objection and the plaintiff Manca Francesco's Notice of Motion seeking an injunction over Title No. Kilifi/Jimba/439. The dispute is the latest chapter in litigation over Plot No. 671, Watamu dating back to 2004. In HCC No. 36 of 2004, consolidated with HCC No. 10 of 2005, Meoli J revoked the plaintiff's title Kilifi/Jimba/439 and declared Ransa Company Limited's title valid and indefeasible. Separately, in judicial review proceedings, a consent order was recorded cancelling entries over Plot 671 and prohibiting dealings prejudicial to the plaintiff's right to Kilifi/Jimba/439, which the Court of Appeal upheld by majority on 11th December 2015, Koome JA (as she then was) dissenting. The plaintiff's case was that, despite these orders, Plot 671 was subdivided and L.R. No. 758 registered to Ransa Company Limited and transferred to the defendants on 20th December 2019, who began construction. The defendants pleaded res judicata, want of standing, suit against the wrong parties, and abuse of process. The court held that because there are two parallel conflicting decisions, different parties, and a suit property altered by subdivision, res judicata does not apply and the suit raises a novel cause of action best resolved after a full hearing. The preliminary objection was dismissed. Applying Order 40 Rule 1 and the Giella principles, the court granted a temporary injunction restraining the defendants from ferrying construction materials, building a perimeter wall or erecting permanent structures on Kilifi/Jimba/439 pending hearing and determination of the suit, with the OCS Watamu to ensure compliance, and awarded costs against the respondents.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 15
02

Whether an interlocutory injunction should issue against the defendants

Holding

A temporary injunction was granted to restrain construction on the suit property pending hearing, to preserve the substratum of the suit property.

Reasoning

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.

p. 21
03

Costs of the motions

Holding

Costs were awarded to the plaintiff against the respondents.

Reasoning

Having dismissed the preliminary objection and allowed the injunction application, the court ordered that the costs of the motions be borne by the respondents.

p. 21

Legal principles established

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  • 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

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  1. 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. 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. 3.The OCS Watamu to ensure compliance
  4. 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

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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, "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.