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ELCPartially AllowedMRG ELCL PET E006 OF 2025· [2026] KEELC 2373 (KLR)

Kimara (Suing on behalf of Kandara Residents Association) v National Land Commission & 5 others; Del Monte Kenya Limited (Interested Party) (Land Case Petition E006 of 2025) [2026] KEELC 2373 (KLR)

Environment and Land Court
28 April 2026
1,487 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Murang'a court blocked any leasing, sale or development of disputed Kandara land while residents' appeal is still pending.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (M.N. Gicheru, J) determines a notice of motion dated 9-10-2025 by the Petitioner, Chairman of Kandara Residents' Association, seeking conservatory orders and a temporary injunction restraining the Respondents from processing, approving or implementing lease agreements, land alienation, title issuance or transfers over disputed land parcels pursuant to a newspaper advertisement in the Daily Nation of 7th October 2025, pending the hearing of the petition. The Petitioner's case rests on a 2019 determination by the 1st Respondent ordering resettlement of the Petitioners on land held by the Interested Party, and the 2nd Respondent's delay and unilateral advertising of the land without consultation. The 2nd Respondent opposed, noting that the earlier award was quashed in Murang'a ELC Petition No. 3 of 2020, that resurvey revealed no residual land, that an appeal is pending before the Court of Appeal (Nyeri, E163 of 2022) with a status quo order, and filed a preliminary objection on res judicata, sub judice and functus officio. The Court held it has jurisdiction: resettlement was not dependent on residual land; the intended alienation during a pending appeal creates a new cause of action; and the prior petition concerned a different issue (fair hearing before a National Assembly committee), so the Court is not functus officio. The preliminary objection was dismissed and the motion allowed in terms of prayers 4 and 5, with costs in the cause.

Key legal issues

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01

Jurisdiction and res judicata

Holding

The Court has jurisdiction; the petition is not res judicata because the intended alienation of the suit land during a pending appeal constitutes a new cause of action, and the resettlement duty did not depend on the resurvey outcome.

Reasoning

The 1st Respondent's recommendations provided that even if no residue land existed, land should be set aside and held in trust by the County Governments of Kiambu and Murang'a for resettlement and public utilities. The Petitioners have an active appeal (E163 of 2022) with a status quo order in place, yet the 2nd Respondent advertised activities leading to alienation of the suit land. Alienating the land while the appeal is pending would prejudice the Petitioners if their appeal succeeds, creating a fresh cause of action outside the earlier suit.

p. 4
02

Functus officio

Holding

The Court is not functus officio because the issues in ELC Petition No. 3 of 2020 concerned the Interested Party's right to a fair hearing before a National Assembly committee, whereas this petition concerns the leasing of 1050 acres claimed as ancestral land.

Reasoning

The prior petition dealt with a distinct subject — the Interested Party's right to a fair hearing before a committee of the National Assembly — while the present petition raises the leasing of 1050 acres of land the Petitioners claim as ancestral and which was awarded to them by the 1st Respondent. Since the issues differ, the doctrine of functus officio does not bar this Court from entertaining the present petition.

p. 4

Legal principles established

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  • Resettlement of the Petitioners was a duty imposed on the 2nd Respondent irrespective of the availability of residual land following resurvey.
  • Alienation of land claimed by petitioners while their appeal is pending creates a new cause of action conferring jurisdiction on the Court.

Court orders

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  1. 1.Dismissal of the preliminary objection dated 5-11-2025
  2. 2.Conservatory orders restraining the Respondents, their agents, servants, employees, assigns and any person acting under their authority from processing, approving, issuing or implementing any lease agreements, land alienation, issuance of title deeds or any form of transfer or development over the disputed land parcels by virtue of the Newspaper advertisement at pages 5 and 16 of the Daily Nation of 7th October 2025 pending the hearing and determination of the petition
  3. 3.Temporary injunction restraining the 1st, 2nd and 3rd Respondents, their agents and assigns from proceeding with any land lease allocations or allotment, sales or developments arising from the advertisement at pages 5 and 6 of the Daily Nation Newspaper of 7th October 2025 pending the hearing and determination of the petition
  4. 4.Costs in the cause
Jurisdiction invoked
Articles 2(4), 10, 22, 23, 40, 47, 60, 61 and 67 of the Constitution of Kenya 2010; Sections 1A, 1B, 3A of the Civil Procedure Act; Sections 3(1), 8, 14, 19, 20, 22 and 26 of the Judicature Act; Order 51 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, "Kimara (Suing on behalf of Kandara Residents Association) v National Land Commission & 5 others; Del Monte Kenya Limited (Interested Party) (Land Case Petition E006 of 2025) [2026] KEELC 2373 (KLR)", Case Analysis (2026). MRG ELCL PET E006 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2373/eng@2026-04-28

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