Koichi Realtors Limited & 2 others v Takawa Earth Resources Limited & 3 others
The bottom line
#A Kwale court protected landowners from trespass but refused to stop licensed sand harvesting in the adjoining river, sending that fight to the environment tribunal.
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 determine this suit.
- 2.Whether the suit offends the doctrine of sub judice.
- 3.Whether the Plaintiffs' application dated 24th April 2026 is merited.
- 4.Whether the Defendants' application dated 8th May 2026 is merited.
Key legal issues
#Jurisdiction of the ELC vis-à-vis the National Environment Tribunal
The Court has jurisdiction over the proprietary and trespass claims; only a direct challenge to a NEMA licence must go to NET under sections 129 and 130 of EMCA
NET exercises appellate jurisdiction under section 129 EMCA over identifiable decisions, orders, licences or permits. The Plaintiffs pleaded trespass, ownership, eviction and damages, which fall within the ELC's original jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act. The Defendants' reliance on a licence as a defence does not convert the suit into an appeal. However, the prayer to restrain river excavation amounts in substance to a challenge to a NEMA licence reserved for NET.
Sub judice
The sub judice objection was not established because no material from Petition No. E002 of 2026 was placed before the Court
Section 6 of the Civil Procedure Act codifies sub judice. Determining whether issues are directly and substantially in issue in a previously instituted suit requires interrogation of pleadings and facts, which cannot be done at a preliminary stage on disputed facts. No pleadings, proceedings or material from the Petition were placed before the Court, so the comparative exercise could not be undertaken.
Temporary injunction
A temporary injunction restraining entry upon and interference with the suit parcels was granted; the blanket river-excavation injunction and permanent injunction were declined
Applying Giella v Cassman Brown, the official searches and photographs established a prima facie proprietary right apparently threatened by unrebutted depositions of entry, machinery and fence damage, and irreparable injury. But the riverbed and riparian reserve are not owned by adjoining proprietors absent evidence excavation occurred within surveyed boundaries, and a permanent injunction cannot issue at interlocutory stage.
Defendants' application to set aside ex parte orders
The ex parte orders were varied and replaced by the orders in the ruling; the stay, joinder, discontinuance and consolidation objections all failed
Under Order 40 rule 7 the Court may discharge, vary or set aside an injunction. Given the findings on the Plaintiffs' application, the ex parte orders were varied. The stay for unpaid costs lacked evidential support; the joinder objection lacked objective survey evidence; the discontinuance under Order 25 remains binding and the Court cannot sit on appeal over its own order; consolidation lacked the requisite record.
Legal principles established
#- A licence to excavate in a river does not, without a secured right of access, entitle the licensee to enter or pass through private property
- A claim for trespass, vacant possession and protection of title is not converted into a section 129 EMCA appeal by the mere existence of a licence relied on as a defence
- A challenge to an environmental licence framed as an injunction against the licensed activity must first be pursued before NET under sections 129 and 130 of EMCA
- Even where an application is uncontroverted, the Court must independently assess whether the evidence establishes a basis for the orders sought
- A sub judice objection cannot be determined on disputed facts at a preliminary stage without the pleadings of the other suit
Court orders
#- 1.Pending the hearing and determination of the suit, the Defendants are restrained from entering upon, remaining on, or interfering with the Plaintiffs' quiet possession and enjoyment of the listed suit parcels except with the Plaintiffs' consent or pursuant to a lawful right of access.
- 2.The Plaintiffs' prayer for a blanket order restraining the Defendants from excavating, removing or harvesting sand from River Mteza outside the surveyed boundaries of the suit properties is declined.
- 3.Nothing in the ruling authorizes the Defendants to enter upon or pass through the suit properties or to conduct excavation causing physical entry upon or direct physical damage to the suit properties.
- 4.The prayer for a permanent injunction at the interlocutory stage is declined.
- 5.The ex parte orders issued on 29 April 2026 are varied and replaced by the orders made in the ruling.
- 6.The costs of both applications shall be in the cause.
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 and Section 13 of the Environment and Land Court Act No. 19 of 2011
Relief refused
#Blanket injunction restraining excavation, removal or harvesting of sand from River Mteza adjoining the suit properties
Plaintiffs did not show excavation occurred within their surveyed boundaries or caused imminent damage; such an order would indirectly suspend a NEMA licence without the competent statutory body determining it
Permanent injunction at interlocutory stage
Permanent injunction is final relief granted only after full hearing; granting it would determine part of the suit before trial
Defendants' prayer for stay of suit pending payment of costs in Misc. Appl. No. E015 of 2025
No pleadings, ruling, order or certificate of costs placed before the Court; mere assertion of unpaid costs is insufficient
Defendants' prayer for consolidation with Petition No. E002 of 2026
Relevant pleadings and orders not placed before the Court and no formal application or consent for consolidation
Defendants' objection to joinder of the 3rd Plaintiff
No survey map, RIM, deed plan or surveyor's report produced to establish the parcel's proximity to the river; a factual matter for trial
Costs
The costs of both applications shall be in the cause.
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.
Pending the hearing and determination of the suit, the Defendants, whether by themselves, their agents, servants, employees or any person claiming under them, are restrained from entering upon, remaining on, or in any way interfering with the Plaintiffs' quiet possession and enjoyment
The costs of both applications shall be in the cause.
The Plaintiffs cannot circumvent that statutory procedure by framing a challenge to an environmental licence as an injunction against the licensed activity.
A licence to undertake excavation in the river does not, in the absence of a secured right of access, entitle the Defendants to enter or pass through private properties.
The fact that the Plaintiffs' properties adjoin the river does not, by itself, establish ownership of the riverbed, the riparian reserve, or the materials found therein.
Unless that order is set aside, reviewed or overturned on appeal, it remains binding, and this Court cannot sit on appeal over its own order.
The ex parte orders issued on 29 April 2026 are varied and replaced by the orders made in this ruling.
Issues in the judgment
#Prayer numbering in the Plaintiffs' application is garbled; orders (i) and (ii) are marked 'Spent' and the permanent injunction appears as prayer No. 4
Judge's rank printed as 'L J' rather than the conventional 'J'
Submissions suggest the suit was withdrawn against the 2nd, 3rd and 4th Defendants, yet the ruling's orders restrain 'the Defendants' generally
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koichi Realtors Limited & 2 others v Takawa Earth Resources Limited & 3 others", Case Analysis (2026). ELC Case No. E025 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6047/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.