Haji v Khansam Apartments and Management Company Ltd & 3 others (Environment and Land Petition E008 of 2026) [2026] KEELC 4596 (KLR)
The bottom line
#An Mombasa court ruled one ELC judge cannot stop another judge's judgment, so Khansam's case judgment will proceed as planned.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to arrest, stay or hold in abeyance the judgment scheduled for delivery on 16th July 2026 in Mombasa ELC Petition No. E001 of 2026
- 2.Whether, on the merits, this Court should direct that Mombasa ELC Petition No. E001 of 2026 and the present Petition be heard together and by the same judge
- 3.The appropriate order as to costs
Key legal issues
#Jurisdiction of one ELC judge to arrest or stay the judgment of a peer judge
The Court has no jurisdiction; judges of the ELC are of equal status and neither is empowered to command the other.
The ELC is a specialised superior court under Article 162(2)(b) and Section 4 of the ELC Act. Every ELC judge has the status of a High Court judge. Between Ombwayo, J. and the presiding judge there is no superior and no subordinate. The Supreme Court in Kenya Hotel Properties and Republic v Karisa Chengo confirms equal-status courts have no appellate or supervisory jurisdiction over one another; such an order would be a nullity.
Whether the two petitions should be consolidated and heard by the same judge
Consolidation declined on four cumulative grounds: stage of proceedings, differing parties, differing causes of action, and the application being a collateral attack/forum shopping.
Rule 17 of the Mutunga Rules permits consolidation, but the discretion is exercised on principle, not sentiment. E001 was fully heard with judgment due; the parties and causes of action differ materially (a developer's petition vs a neighbour's environmental petition); granting orders would bind persons not served or heard (audi alteram partem); and the motion was in substance a collateral attack by a self-confessed stranger to E001, amounting to forum shopping.
Costs of the application
Costs follow the event; the Applicant pays the 1st Respondent's costs.
The 1st Respondent was put to the trouble of defending a motion at the instance of a non-party on the eve of a fully awaited judgment, and there was no reason to depart from the ordinary rule that costs follow the event.
Legal principles established
#- Superior courts of equal and competent jurisdiction cannot grant orders to reopen or review each other's decisions
- A litigant cannot use consolidation at the instance of a non-party to arrest a judgment in a matter fully heard and pending delivery
- Consolidation is a case-management tool for the front end of proceedings, not the back end
Court orders
#- 1.Prayer (iii), for the arrest, stay or holding in abeyance of the judgment scheduled for delivery on 16th July 2026 in Mombasa ELC Petition No. E001 of 2026, declined for want of jurisdiction
- 2.Prayers (ii), (iv) and (v), for the two Petitions to be heard together and by the same judge, declined on the merits
- 3.Nothing in the Ruling shall be construed as staying, delaying or otherwise affecting the delivery of judgment by Hon. Ombwayo, J. in Mombasa ELC Petition No. E001 of 2026
- 4.The respondents in the Petition granted fourteen (14) days to file and serve their responses from the date thereof
- 5.The petitioner at liberty to file and serve a further affidavit, if any, and file submissions within fourteen (14) days of service by the respondents, but not later than thirty (30) days from the date thereof
- 6.The respondent to file and serve their submissions within fourteen (14) days of service by the petitioner
- 7.Parties to highlight submissions on 3rd November, 2026, and Judgment to be fixed on the same day
- 8.The Petitioner/Applicant to bear the costs of the application, to be paid to the 1st Respondent, and to be taxed if not agreed
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; Section 13(3) of the Environment and Land Court Act; Articles 22, 42 and 70 of the Constitution
Relief refused
#Arrest, stay or holding in abeyance of the judgment in Mombasa ELC Petition No. E001 of 2026
Lack of jurisdiction — peer judges of equal status cannot stay each other's judgments
Placing the proceedings before Hon. Justice Antony O. Ombwayo and hearing both Petitions together by the same judge
Consolidation is a front-end tool; the hearing in E001 was complete, the parties differ, causes of action differ, and the application was a collateral attack by a stranger
Costs
The Petitioner/Applicant shall bear the costs of this application, to be paid to the 1st Respondent, and to be taxed if not agreed
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.
Prayer (iii), for the arrest, stay or holding in abeyance of the judgment scheduled for delivery on 16th July 2026 in Mombasa ELC Petition No. E001 of 2026, is declined for want of jurisdiction.
Prayers (ii), (iv) and (v), for the two Petitions to be heard together and by the same judge, are declined on the merits.
no litigant is the master of a proceeding in which he is not, and has never been, a party.
jurisdiction is everything. Without it, a court has no power to make one more step.
That is forum shopping in all but name, and this Court will not countenance it.
The Petitioner/Applicant shall bear the costs of this application, to be paid to the 1st Respondent, and to be taxed if not agreed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Haji v Khansam Apartments and Management Company Ltd & 3 others (Environment and Land Petition E008 of 2026) [2026] KEELC 4596 (KLR)", Case Analysis (2026). ELC Petition No. E008 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4596/eng@2026-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.