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ELCOtherELC. LC NO. E155 OF 2025

Lesirat Nkuya Olowasa v Carey Francis Metropolitan School

Environment and Land Court
24 September 2026
1,970 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kajiado court refused to fast-track a landowner's eviction case against a school because the same land is already disputed in an earlier lawsuit.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (Omange J) determined two interlocutory applications in a trespass and eviction suit. The Plaintiff, registered proprietor of parcel Kajiado/Kaputiei North/50557, sought summary judgment against the Defendant school, which had failed to file a defence, relying on eviction notices issued since 2023. The Defendant sought a stay of these proceedings under Section 6 of the Civil Procedure Act, contending that ownership of the same parcel was directly in issue in ELC No. E056 of 2023 before Mwangi J, a suit by the Plaintiff's siblings claiming the land is held in trust for them and seeking cancellation of the titles. The court framed two issues: whether summary judgment should issue, and whether the suit was sub judice. On the first, applying Order 36 and the settled principle that a defendant showing a bona fide triable issue must be allowed to defend, the court held that an eviction order presupposes an undisputed right to exclusive possession, which was absent here since ownership was disputed; summary judgment was dismissed. On the second, the court perused ELC E056 of 2023 and found its pleadings covered parcel 50557, rejecting the Plaintiff's claim that it concerned a different parcel. Applying the Supreme Court's test in KNCHR v Attorney General, the court found the central issue in both suits substantially the same and stayed these proceedings pending determination of the earlier suit, directing the file to Mwangi J. Costs of both applications were ordered to abide the outcome of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff's prayer for summary judgement against the Defendant should be allowed
  2. 2.Whether this suit is sub judice and should be stayed pending hearing and determination of ELC E056 of 2023

Key legal issues

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01

Whether summary judgment was merited

Holding

Summary judgment refused; triable issues exist because the Plaintiff's ownership is disputed by a third party and the Defendant raised sub judice

Reasoning

An eviction order presupposes an undisputed right to exclusive possession. Here the Plaintiff's ownership is in dispute (albeit from a different party) and the Defendant raised sub judice. Applying Order 36 rules 1(b) and 2 and the settled principle that a defendant showing a bona fide triable issue must be allowed to defend, the court held the relief unmerited.

p. 7
02

Whether the suit is sub judice under Section 6 of the Civil Procedure Act

Holding

Yes; the central issue in both suits is substantially the same - proprietary interest over parcel Kajiado/Kaputiei North/50557 - so proceedings are stayed pending ELC E056 of 2023

Reasoning

The court perused ELC E056 of 2023 and found its pleadings include parcel 50557, contrary to the Plaintiff's claim that it concerned parcel 23315. Applying the Supreme Court's four-part test in KNCHR v AG, the elements of res sub judice were satisfied and the later suit must await the earlier one to avoid conflicting decisions.

p. 9

Legal principles established

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  • Where two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the later-filed matter ought to be stayed to await determination of the earlier suit
  • A defendant who shows a bona fide triable issue must be allowed to defend without conditions

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 19th December 2025 seeking summary judgment is dismissed
  2. 2.The Defendant's Notice of Motion dated 3rd February 2026 is allowed and further proceedings in this suit are stayed pending the hearing and determination of Kajiado ELC Case No. E056 of 2023, or until further orders or variation by that Court
  3. 3.The file is to be placed before Justice MD Mwangi
  4. 4.Costs of these applications shall abide the outcome of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (implied; not expressly cited in the ruling)

Relief refused

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Summary judgment against the Defendant

Triable issues exist; the Plaintiff's ownership of the suit property is disputed and the ownership question should be determined first

p. 7

Costs

Costs of these applications shall abide the outcome of the suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Plaintiff's Notice of Motion dated 19th December 2025 seeking summary judgment is dismissed.
p. 11Dismissal of summary judgment application
The Defendant's Notice of Motion dated 3rd February 2026 is hereby allowed and further proceedings in this suit are stayed pending the hearing and determination of Kajiado ELC Case No. E056 of 2023, or until further orders or variation by that Court.
p. 11Stay of proceedings - sub judice
Costs of these applications shall abide the outcome of the suit.
p. 11Costs
The Court thus finds that the central issue in both suits is substantially the same, being the proprietary interest over parcel No. Kajiado/Kaputiei North/50557.
p. 9Res sub judice - same subject matter

Issues in the judgment

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minor

Suit parcel number inconsistently rendered as 50557 and 550557

minor

Case name inconsistency: KNCHR cited as 'Kenya National Human Rights Commission' by Defendant but 'Kenya National Commission on Human Rights' by court

minor

Application dated 3rd February 2026 heard and determined in ruling dated 24th September 2026 - unusually long interval, possibly typographical

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, "Lesirat Nkuya Olowasa v Carey Francis Metropolitan School", Case Analysis (2026). ELC. LC NO. E155 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5858/eng@2026-09-24

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