Ndunda v Mulwa & 5 others (Environment and Land Miscellaneous Case E067 of 2025) [2026] KEELC 3270 (KLR)
The bottom line
#A Machakos court ruled that facing criminal charges over land doesn't pause your civil case—both can proceed at the same time.
What this practically means
#Executive summary
#Key legal issues
#Whether the criminal proceedings should be stayed pending the ELC case
The motion for stay was dismissed; the criminal and civil proceedings may run concurrently and no ground for stay was established.
Section 193A CPC expressly provides that a matter in dispute in civil proceedings is not a ground for staying criminal proceedings. Investigations predated the ELC case (DCI involvement from 2020, forensic report from 2019), so the prosecution was not an afterthought. The court applied Diamond Hasham Lalji on deference to DPP discretion and the Chris Achieng exceptions for staying criminal proceedings, and found none met. The applicant may contest the charges in the criminal trial.
Whether the case is res judicata given the prior ruling in the ELC case
Not res judicata, because the prior similar application was struck out, not heard on the merits.
A similar stay application had been filed in the ELC case but was struck out by the ruling in Mulwa v Ndunda & 2 others [2025] KEELC 1300 (KLR) without a hearing on the merits. Res judicata requires a final determination on the merits, so the applicant's fresh miscellaneous application - filed in line with that court's directions that the ODPP and investigative bodies be joined in appropriate proceedings - was not barred.
Whether the 1st respondent's consolidation motion was proper
Dismissed as an abuse of court process.
The 1st respondent had successfully argued in the ELC case that the stay application was incompetent because the ODPP and investigative bodies were not parties and that it should be brought as a separate miscellaneous application. The applicant complied, and the 1st respondent then sought consolidation, adopting inconsistent positions by approbation and reprobation. Applying Muchanga Investments on abuse of process, the court found the motion vexatious and frivolous.
Legal principles established
#- Parallel conduct of civil and criminal proceedings concerning the same subject matter is not prohibited
- Courts should not usurp the constitutional mandate of the DPP and should exercise restraint in interfering with prosecutorial discretion
Court orders
#- 1.The notices of motion dated 2 July 2025 and 7 November 2025 are found not to be merited and are dismissed
- 2.The notice of preliminary objection dated 19 September 2025 is struck out
- 3.Each party shall bear their own costs
- 4.The file is effectively marked as closed
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court to entertain applications for stay of proceedings, including criminal proceedings, as affirmed in Mulwa v Ndunda & 2 others [2025] KEELC 1300 (KLR)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndunda v Mulwa & 5 others (Environment and Land Miscellaneous Case E067 of 2025) [2026] KEELC 3270 (KLR)", Case Analysis (2026). Machakos ELC Miscellaneous Application (stay of criminal proceedings in Mavoko MCCR/E1119/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3270/eng@2026-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.