Nrandzaka v Josephat & 3 others (Enviromental and Land Originating Summons E025 of 2025) [2026] KEELC 2749 (KLR)
The bottom line
#The Environment and Land Court in Kwale protected a woman's adverse possession claim over Diani land, blocking eviction until her case is fully heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff's claim for land adverse possession was barred by the doctrine of Res Judicata under Section 7 of the Civil Procedure Act, Cap. 21
- 2.Whether the Notice of Motion dated 9th December 2025 meets the threshold required of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010
- 3.Whether the Defendants' application dated 4th February 2026, premised on allegations of material non-disclosure, perjury, procedural defects and striking out the entire suit, is merited
- 4.Who should bear the costs of the two competing applications
Key legal issues
#Res judicata and adverse possession
The Plaintiff's adverse possession claim is not barred by res judicata because adverse possession was never directly and substantially in issue in the prior litigation, which concerned vacant possession and registered ownership
The court applied Section 7 of the Civil Procedure Act and the conjunctive elements of res judicata from IEBC v Maina Kiai, Communications Commission of Kenya v Royal Media Services and John Florence Maritime Services. While parties and property were the same, the cause of action in the prior suits was vacant possession. Adverse possession is a statutory claim requiring specific pleading and proof, which was absent in the earlier proceedings.
Threshold for interlocutory injunction
The Plaintiff satisfied all three Giella v Cassman Brown limbs: prima facie case with probability of success, irreparable harm (desecration of graves, loss of home and livelihood), and balance of convenience favouring preservation of her occupation
Applying Giella as sequenced in Nguruman, the court found the Plaintiff's occupation since 1974 open, continuous and exclusive, conferring an apparently infringed right. Eviction would destroy residence and livelihood and desecrate graves, harm incapable of monetary compensation. The balance of convenience favours preserving status quo pending trial.
Striking out for material non-disclosure, perjury and procedural defects
The Defendants' application was dismissed; the non-disclosure was not material since adverse possession was never adjudicated, perjury cannot be determined summarily in civil proceedings, and want of a verifying affidavit is curable
The court applied Bahadurali Ebrahim Shamji on the duty of full disclosure but held the omitted facts did not relate to the distinct cause of action. On perjury it invoked Scope Telematics and the criminal standard. On procedure it applied Article 159(2)(d) and Shashikant C. Patel, holding the defect curable, and applied the D.T. Dobie standard against summary dismissal.
Costs
Costs follow the event under Section 27(1) of the Civil Procedure Act; the Defendants bear costs of their failed application, while costs of the Plaintiff's successful application abide the outcome of the main suit
Relying on Section 27(1) and the principle that costs follow the event, the court held the successful Plaintiff entitled to costs of the Defendants' unsuccessful application, but deferred costs of her own interlocutory application to the cause so as not to prejudge the substantive claim.
Legal principles established
#- All elements of res judicata must be satisfied conjunctively; failure to meet even one is fatal to the plea
- Res judicata applies only to issues that were distinctly put in issue and finally determined; matters arising incidentally or not pleaded cannot found the plea
- Perjury allegations cannot be summarily determined by a civil court at the interlocutory stage
- Absence of a verifying affidavit is a curable defect and does not render a suit a nullity, consistent with Article 159(2)(d)
Court orders
#- 1.The Notice of Motion dated 4th February 2026 by the Defendants dismissed with costs to the Plaintiff
- 2.The Notice of Motion dated 9th December 2025 by the Plaintiff allowed
- 3.Temporary injunction restraining the Defendants, their servants, agents or persons acting under their instructions from evicting, alienating, transferring, leasing or otherwise interfering with Land Reference Numbers Kwale/Diani/295 and its sub-divisions pending hearing and determination of the substantive suit for adverse possession or until further orders
- 4.Order of inhibition under Section 68 of the Land Registration Act issued against the suit property and its sub-divisions, prohibiting any dealings whatsoever until the suit is heard and determined
- 5.The OCS Diani Police Station to ensure compliance with the injunctive and inhibition orders and maintain peace on the suit property
- 6.Mention for Pre-Trial Conference on 27th July 2026 and hearing on 27th October 2026 preferably through physical means
- 7.Costs of the Defendants' application dated 4th February 2026 awarded to the Plaintiff; costs of the Plaintiff's application dated 9th December 2025 in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, No. 19 of 2011
Relief refused
#Defendants' prayer for a finding of perjury and sanctions under Sections 108 and 110 of the Penal Code
Perjury is a criminal offence requiring proof beyond reasonable doubt in separate proceedings; a civil court cannot summarily determine criminal liability at the interlocutory stage
Defendants' prayer to strike out the Plaintiff's suit and Notice of Motion
Non-disclosure was not material as adverse possession was never adjudicated; absence of a verifying affidavit is a curable defect
Costs
Costs of the Defendants' application dated 4th February 2026 awarded to the Plaintiff, to be borne by the Defendants; costs of the Plaintiff's application dated 9th December 2025 to be in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the Notice of Motion application dated 9th December 2025 by the Plaintifi be and is hereby found to have merit and is accordingly allowed.
That an order of temporary injunction be and is hereby issued restraining the Defendants, their servants, agents, or any persons acting under their instructions from evicting, alienating, transferring, leasing, or otherwise interfering with the parcel of land known as Land Reference Numbers Kwale/Diani/295 and its sub - divisions, pending the hearing and determination of the substantive suit for adverse possession or until further orders of this Court.
That an order of inhibition under the provision of Section 68 of the Land Registration Act, No. 3 of 2012 be and is hereby issued against the suit property and its sub - divisions, prohibiting any dealings whatsoever until the suit is heard and determined.
Accordingly, the Honourable Court strongly finds that the Plaintifi's claim for land adverse possession is not barred by the Doctrine of Res Judicata under the provision Section 7 of the Civil Procedure Act, Cap.
That the Notice of Motion application dated 4th February 2026 by the Defendants be and is hereby found to be unmerited and is accordingly dismissed with costs to the Plaintifi.
That the costs of the Defendants' application dated 4th February 2026 shall be awarded to the Plaintifis to be borne by the Defendants. The costs of the Plaintifi's application dated 9th December 2025 shall be in the cause.
Issues in the judgment
#The judgment inconsistently describes the Plaintiff's name as 'Mwanamisi Masudi Nrandzaka' in the pleadings but the prior litigation is cited as involving 'Mwanahamisi Masudi', and the Plaintiff's counsel is referred to as 'Mr. Mwanjama' while the firm is 'Mbwiza & Company Advocates' with 'Mr. Mbwiza Rashid' also named - apparent name inconsistencies not explained
The judgment cites 'Milly Glass Works Limited – Versus - Kenya Railways Corporation [2026] KEELC 2248' - a citation dated the same year as the judgment itself and in the future relative to parts of the record
The text misnames 'Kasukve – Versus - Mwaani Investments Limited' (apparently a typographical rendering of Kasuve v Mwaani Investments Limited) and cites 'Mbuthia – Versus - Jimba credit Corporation Ltd 988 KLR 1' with an incomplete citation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nrandzaka v Josephat & 3 others (Enviromental and Land Originating Summons E025 of 2025) [2026] KEELC 2749 (KLR)", Case Analysis (2026). ELC Case at Kwale (Originating Summons for adverse possession; Notice of Motion dated 9th December 2025 and Notice of Motion dated 4th February 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.