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ELCDismissedMLDELCLCE001/26 (file reference MLDELCLCE001/26-RLG/DF-09.01.26/FH-29.01.26/LH-29.01.26/DR-23.04.26F)

Omar v Kazuri & 9 others (Land Case E001 of 2026) [2026] KEELC 2336 (KLR)

Environment and Land Court
23 April 2026
638 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Malindi dismissed a bid to block execution of a land decree, ruling the dispute was already settled in an earlier case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi on a Notice of Motion dated 8th January 2026 in which the plaintiff sought orders restraining the 11th defendant and his agents from registering and executing a decree dated 21st November 2025, pending the hearing of the suit. The respondents replied through an affidavit dated 21st January 2026, contending that the decree flowed from a judgment delivered by Justice Evans Makori on 22nd October 2025 in Malindi ELC Case Number 16 Of 2023 OS, an adverse possession suit they had brought against the registered owners of the land; that the decree had already been executed by registration against the title; and that the present suit was res judicata. The court called for the original file in the earlier case and confirmed that the judgment of 22/10/25 remained in place and un-set-aside, that the defendants in that case were the registered owners identified in the postal search certificate, and that the present defendants had been served by substituted service in the Daily Nation on 19 January 2024 and had chosen not to participate. The court held that the dispute over title had been finalized, that any grievance the plaintiff had should have been raised in that case, and that the plaintiff had not controverted the allegation that the decree had been executed. Prayers 4 and 5 could not issue, and the motion was dismissed with costs to the respondents on 23rd April 2026.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an order should issue restraining the 11th defendant from registering/executing the decree dated 21st November 2025 pending hearing of the suit
  2. 2.Whether the present suit and application are barred by res judicata given the judgment in Malindi ELC Case Number 16 Of 2023 OS

Key legal issues

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01

Res judicata - whether the prior judgment in Malindi ELC Case Number 16 Of 2023 OS bars the present suit

Holding

The dispute over title to the suit land was finalized by an un-set-aside judgment in the respondents' favour; the plaintiff gave no basis for disturbing that judgment, so the application fails on the res judicata objection

Reasoning

The court called for the original file in Malindi ELC Case No. 16 of 2023 OS and confirmed a judgment dated 22/10/25 in favour of the respondents had not been set aside. The defendants in that case were the registered owners per the postal search certificate. The prior judgment noted the present defendants were served by substituted service and did not participate. The dispute over title was thus finalized and any grievance should have been raised in that case.

p. 2
02

Execution of the decree - whether injunctive relief pending determination could issue

Holding

No, because the decree had already been executed by registration, an allegation the plaintiff did not controvert; orders would issue in vain

Reasoning

The plaintiff bore the burden of demonstrating that the decree had not been executed. There was no response to the replying affidavit controverting the allegation that the decree had been registered. Although the respondents did not exhibit a search certificate, the court found the assertion credible and declined prayers 4 and 5.

p. 2

Legal principles established

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  • A party with a grievance concerning title to land already determined in a prior suit must raise it in that suit; the court will not entertain a fresh application premised on the same land where an un-set-aside judgment already confers rights

Court orders

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  1. 1.The Notice of Motion dated 8th January 2026 is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (statutory provision not cited in the judgment)

Relief refused

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Prayer 4 - order restraining registration of the decree against the Land Registrar

The decree has already been executed by registration, and the court found the respondents' assertion credible as there was no controverting response

p. 2

Prayer 5 - restraining order against the other respondents

Having failed against the Land Registrar, the corresponding prayer against the other respondents could not issue

p. 2

Costs

dismiss it with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having considered the motion, I find that it lacks merit and I hereby dismiss it with costs to the respondents.
p. 2Final orders - dismissal of the motion
It is also clear that if the present plaintiff has any grievance that can be addressed under the law, he should have brought it in that case.
p. 2Res judicata - prior suit as the proper forum
However, there was no response filed to the replying affidavit of the respondents to controvert the allegation that the decree has already been executed.
p. 2Uncontroverted evidence on execution of the decree

Issues in the judgment

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minor

The judgment does not state the case title, full case number or the names of the parties; only a file reference (MLDELCLCE001/26) and role descriptions (plaintiff, 11th defendant, first respondent) appear

minor

Internal chronology tension: the judgment records letters from the Mombasa Lands Office 'answered by the Deputy Registrar of this court in 2025' although the present suit was filed in 2026, and refers to a decree dated 21st November 2025 in a motion dated 8th January 2026 while the prior judgment is dated 22nd October 2025

minor

The judgment refers to 'the defendants in that case' being granted rights to the land while also describing the respondents as having sued 'against the registered owners', creating ambiguity in party labels between the two suits

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, "Omar v Kazuri & 9 others (Land Case E001 of 2026) [2026] KEELC 2336 (KLR)", Case Analysis (2026). MLDELCLCE001/26 (file reference MLDELCLCE001/26-RLG/DF-09.01.26/FH-29.01.26/LH-29.01.26/DR-23.04.26F). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2336/eng@2026-04-23

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