Lesirat Nkuya Olowasa v Carey Francis Metropolitan School
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff's prayer for summary judgement against the Defendant should be allowed
- 2.Whether this suit is sub judice and should be stayed pending hearing and determination of ELC E056 of 2023
Key legal issues
#Whether summary judgment was merited
Summary judgment refused; triable issues exist because the Plaintiff's ownership is disputed by a third party and the Defendant raised sub judice
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.
Whether the suit is sub judice under Section 6 of the Civil Procedure Act
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
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.
Legal principles established
#- 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
#- 1.The Plaintiff's Notice of Motion dated 19th December 2025 seeking summary judgment is dismissed
- 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.The file is to be placed before Justice MD Mwangi
- 4.Costs of these applications shall abide the outcome of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
Costs of these applications shall abide the outcome of the suit.
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.
The Plaintiff's Notice of Motion dated 19th December 2025 seeking summary judgment is dismissed.
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.
Costs of these applications shall abide the outcome of the suit.
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.
Issues in the judgment
#Suit parcel number inconsistently rendered as 50557 and 550557
Case name inconsistency: KNCHR cited as 'Kenya National Human Rights Commission' by Defendant but 'Kenya National Commission on Human Rights' by court
Application dated 3rd February 2026 heard and determined in ruling dated 24th September 2026 - unusually long interval, possibly typographical
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.