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ELCDismissedMachakos ELC Miscellaneous Application (stay of criminal proceedings in Mavoko MCCR/E1119/2024)· [2026] KEELC 3270 (KLR)

Ndunda v Mulwa & 5 others (Environment and Land Miscellaneous Case E067 of 2025) [2026] KEELC 3270 (KLR)

Environment and Land Court
2 June 2026
2,988 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Koross J) determined two notices of motion arising from parallel land and criminal disputes over LR No. 29826 (IR No. 177827) and LR No. 25960. The applicant, charged in Mavoko MCCR/E1119/2024 with obtaining registration of documents by false pretences contrary to Section 320 of the Penal Code, sought a stay of the criminal proceedings pending determination of Machakos ELC No. E067 of 2022, which concerns ownership of the disputed parcels. The 1st respondent opposed, asserting that investigations began well before the ELC suit, that the applicant's allotment letter was forensically shown to be inauthentic, and that prosecution is a matter for the ODPP. The 1st respondent also moved to consolidate this miscellaneous application with the ELC case and to have it dismissed as res judicata, relying on a prior ruling in which a similar application was struck out. The court held that the prior application was struck out rather than heard on the merits, so res judicata did not apply, and that the applicant had filed the miscellaneous application in accordance with the ELC court's own directions - making the 1st respondent's consolidation prayer inconsistent, vexatious and an abuse of process. On the stay, the court relied on Section 193A of the Criminal Procedure Code, permitting parallel civil and criminal proceedings, and on Diamond Hasham Lalji and Chris Achieng, finding no malice, afterthought or abuse of process in the prosecution, noting investigations predated the ELC case. Both motions were dismissed, the 1st respondent's preliminary objection was struck out, and each party was ordered to bear their own costs.

Key legal issues

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01

Whether the criminal proceedings should be stayed pending the ELC case

Holding

The motion for stay was dismissed; the criminal and civil proceedings may run concurrently and no ground for stay was established.

Reasoning

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.

p. 6
02

Whether the case is res judicata given the prior ruling in the ELC case

Holding

Not res judicata, because the prior similar application was struck out, not heard on the merits.

Reasoning

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.

p. 3
03

Whether the 1st respondent's consolidation motion was proper

Holding

Dismissed as an abuse of court process.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The notices of motion dated 2 July 2025 and 7 November 2025 are found not to be merited and are dismissed
  2. 2.The notice of preliminary objection dated 19 September 2025 is struck out
  3. 3.Each party shall bear their own costs
  4. 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

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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, "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.