Kahara

ELC LPET E051 OF 2026 AND ST BENJAMIN MEMORIAL CLINIC SUPPLIES LIMITED …………………………………………………...... INTERESTED PARTY RULING 1. This ruling relates to two applications dated 17.7.2026, 27.7.2026 and a Preliminary Objection opposing both the Notice of Motion and the entire petition. 2. In the 1st application, the Petitioner asks the Court to grant conservatory and mandatory injunction orders pending hearing and determination of the petition. 3. The grounds are set out on the face of the application and in a supporting affidavit sworn by Richard Kamau Kahara. 4. In the 2nd application, the Court is asked to dismiss and to strike out the petition and the 1 st application in their entirety on account of res judicata, sub judice, and abuse of the Court process, since the issues raised therein have been substantially determined in previous suits between Page 2 of 68

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ELC LPET E051 OF 2026 the same parties and are further in view of a pending active appeal. 5. The second reason is that all ancillary claims being a claim that ought to have been raised in those previous proceedings and not by way of fresh proceedings founded on materially identical facts as in the determined proceedings. 6. The grounds are set out on the face of the application and the supporting affidavit of Abdul Waheed Sheikh. 7. Briefly the 1st Respondent pleads and deposes that the ownership of title to, and the right of the Petitioners and the resident of kwa Njoroge village over Land Ref No. 209/193 now Nairobi Block 37/63 have been conclusively and substantially determined by Courts a competent forthwith in Miscellaneous concluded proceedings namely HCC Misc No. 1531 of 2005 which was not appealed against Nairobi HCC Civil Petition No. 396 of 2016 and ELC No 102 of 2008 consolidated with ELC Petition 824 of 2012. 8. The 1st Respondent avers that the Petitioner was named claimant in ELC No. 102 of 2008 and sues herein in a Page 3 of 68

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ELC LPET E051 OF 2026 representative capacity for the same Respondent, hence falling under res judicata. 9. The 1st Respondent takes the view that every ancillary claim in the petition arises from facts materially identical to those already litigated and that a litigant should not litigate piecemeal or hold a claim in reserve. 10. The 1st Respondent deposes that the challenge to the certificate of lease, including the plea of his prior rights or interests, might and ought to have been raised in ELC No 102 of 2008, where the Petitioner was a party and is therefore a collateral attack on the Judgment of Judge Lenaola, as he then was. 11. The 1st Respondent avers that the complainant arising from the events of 3rd July,2026 concern acts consequent upon act in the enforcement of the concluded Judgement of the Angola Judge, which has attracted a pending appeal. 12. The 1st Respondent deposes that there is a pending application at the Court of Appeal seeking substantially the same reliefs to restrain the eviction and demolition; hence, prayers 2,3 & 4 of the Notice of Motion are sub Page 4 of 68

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ELC LPET E051 OF 2026 judice, as the Court of Appeal is the only proper forum for protective relief sought. 13. The 1st Respondent says that the petition is a disguised appeal against the Judgment of Angote-J, a Court of coordinate jurisdiction and the fourth forum in which the same underlying claim has been advanced. 14. The 1st Respondent states that the conservatory Orders sought, including the orders for re-entry, would confer upon adjudged trespassers, by interlocutory orders and without trial, the very possession they lost after a fair trial and would render the Judgment of Angote J and the pending Court of Appeal proceeding nugatory. 15. The 1st Respondent states that it is in the interest of justice, the judicial comity and finality of litigation that the petition and the Notice of Motion be dismissed at the threshold before the parties and the Court are put to the expense of a full constitutional hearing on matters already concluded or already pending elsewhere. 16. The 2nd application is opposed by the petitioners through a replying affidavit sworn by Richard Kamau Kahara on Page 5 of 68

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ELC LPET E051 OF 2026 28.7.2026, who claims to be a duly authorised representative of the residents of Kwa Njoroge village. 17. The petitioners term the Notice of Motion as a repetition of the Preliminary Objection and a calculated move to achieve a summary termination of the petition without being heard on the merits. 18. In the supporting affidavit sworn by Abdul Waheed Sheikh on 27.7.2026, it is deponed that the 1 st Respondent became the registered owner of LR No. 209/193 now Nairobi Block 37/63 whose title was registered on 3.11.2023, pursuant Judgement on 18.5.2013 in Nairobi Misc (iv) case No.1531 of 2005 (Originating Summons) which directed the renewal and registering of the Trusts leasehold interest which Judgement was never appealed reviewed or set aside. The 1st Respondent has attached a copy of the certificate of title and Judgement as annexures AWS (1) & (2). 19. The 1ST Respondent deposes that its entitlement to the land was further re-affirmed in Nairobi Constitutional Petition No. 396 of 2016, a copy attached as Annexure 44 AWS (3). Page 6 of 68

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ELC LPET E051 OF 2026 20. The 1st Respondent deposes that the Petitioner herein, together with other representatives of the residents of Kwa Njoroge Village through Umoja City Self Help Group, instituted ELC No. 102 of 2008 (Originating Summons). 21. The 1st Respondent deposes that in ELC No. 102 of 2008 the petitioners were claiming the suit property by adverse possession and as alleged “colonial” squatters, which suit was consolidated with ELC petition No. 824 of 2012 and heard on merits does several years, with oral testimony and expert evidence including satellite imagery analysis, leading to a Judgement on 26.2.2028 dismissing the consolidated claims in their entirety holding that the Respondents claim to the suit property were unproven and unsustainable in law. As per the annexed Judgment marked AWS (4). 22. The 1st Respondent deposes that on the very day of judgment, the applicant herein, including the Petitioner, filed a contrary appeal, Civil Application No. E093 of 2026, seeking an injunction pending on the interested appeal, restraining their eviction from the suit property and the demolition of structures thereon, which the Respondent Page 7 of 68

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ELC LPET E051 OF 2026 opposed and which remains pending before the Court of Appeal, as per annexed copies marked AWS (5). 23. The 1st Respondent deposes that, given the pending application at the Court of Appeal, both the petition and the Notice of Motion herein are a re-agitation of the very claim that was dismissed by Angote J, coupled with an attack on the title registered pursuant to the Judgment of Lenaola – J as he then was, on top of being a duplication of the relief sought in a pending application at the Court of Appeal. 24. The 1st Respondent deposes that the petition pleads the same issues as were pleaded, tried and rejected in ELC No. 102 of 2008, while prayers 2,3 & 4 of the Notice of Motion seek Conservatory Orders as the ones also sought in the pending application at the Court of Appeal. 25. The 1st Respondent deposes that the events of 3 rd July,2026 were geared towards or concerned with the enforcement of the Judgment of 26 th February, 2026, which has also attracted proceedings in the Court of Appeal seeking restraining orders over the eviction and demolition; hence the plea of res judicata, sub judice, and Page 8 of 68

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ELC LPET E051 OF 2026 an abuse of Court process brought by the petitioners after the end of an eighteen-year litigation process. 26. On the other hand, the petitioners term the application and the Preliminary Objection as a mischaracterisation of the nature of the petition as a dispute not solely on ownership of land, but all about whether the respondents, in carrying out the demolition and forcible eviction on 3.7.2026, acted lawfully, constitutionally and in compliance with the law of eviction. 27. The Petitioners depose that the petition raises constitutional questions arising from the demolition of houses and business premises, the mass displacement of residents, the unwarranted deployment of Police Officers, the alleged use of tear gas, the destruction of property and livelihoods and the resettlement, in total violation of individual rights and freedoms as guaranteed by the Constitution. 28. The Petitioners depose that none of the judgments, orders or proceedings relied upon by the Respondents authorised, expressly or impliedly, the demolition of Kwa Njoroge Village, the forced eviction of residents, the Page 9 of 68

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ELC LPET E051 OF 2026 destruction and supervision of the police who discharged tear gas, forcing the Petitioners, including women, children, the elderly and other vulnerable persons to flee in panic, whilst salvaging their belongings, houses, business and personal property which were destroyed, tendering them homeless, and without means of livelihood. 29. The Petitioners depose that reliance by the 1 st Respondent on a certificate of lease did not and could not have determined the legality of the demolition carried out on 3.7.2026, or justified an alleged non-compliance with the law of eviction. 30. The Petitioners depose that the Respondents have failed to exhibit any lawful authority in the form of a court decree for vacant possession, warrant of eviction, demolition orders or any other lawfully issued statutory eviction notice demonstrating compliance with Articles 40 & 47 of the Constitution, as read together with sections 154 A to 152 H of the Land Act, the Fair Administrative Act and/or any other law governing eviction. Page 10 of 68

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ELC LPET E051 OF 2026 31. The Petitioners aver that the eviction was executed or carried out in the early hours of 3.7.2026, at a time when the residents had s raised distinct and substantive issues yet to be adjudicated upon by the Court. 32. The Petitioners urge the Court to refrain from determining such contested constitutional and evidentiary issues at a preliminary stage without the benefit of viva voce documentary evidence at the full hearing of the matter. 33. What the 1st respondent asks the court through both the is to find both the petition and the Notice of Motion res judicata, sub judice, and an abuse of the Court process in view of similar matters and Judgements in Nairobi High Court Misc Civil Case No. 1531 of 2005 (Originating Summons), Nairobi High Court Constitutional Petition No.396 of 2016 and ELC No. 102 of 2008 (Originating Summons) consolidated with ELC Petition No.824 of 2012. 34.When the matter came up, learned counsel for the petitioners told the Court that the Petitioners are also opposing the said application based on a replying affidavit Page 11 of 68

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ELC LPET E051 OF 2026 sworn on 28.7.2026 by the Petitioner, as well as on written submissions dated 28.7.2025. 35.The Petitioner contends that the Notice of Motion and the Preliminary Objection by the 1st Respondent do not meet the threshold for what a Preliminary Objection is, especially on the grounds of res judicata, constructive res judicata, sub judice, and an abuse of Court process, as set out in the case law of Mukhisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd (1969) E.A 696, Oraro vs Mbaja (2005) eKLR, IEBC Vs Jane Cheperenger & Others (2015) eKLR John Florence Maritime Services Ltd & Another Vs Cabinet Secretary for Transport & Infrastructure & Others (2021)KESC 39 KLR, IEBC & Others (2017) eKLR, Kenya National Commission on Human Rights Vs AG, IEBC (IP) (2020) EKLR, Thiba Min. Hydro Co.Ltd vs Josphat Karu Ndwiga (2015)eKLR and Muchanga Investment Ltd. Vs Safaris Unlimited Africa Co. Ltd & Others (2019) eKLR. 36.The 1st Respondent relies on written submissions dated 30.7.2026, terming the petition as amounting to forum Page 12 of 68

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ELC LPET E051 OF 2026 shopping, in which the occupants of Kwa Njoroge Village have pursued the same claim to the same land against the 1st Respondent, and now ask a Court of co-ordinate jurisdiction to issue them with possession of land they previously lost on the merits after a trial before a similar court, while they have an identical protective relief through an application currently awaiting determination in the Court of Appeal. 37.The 1st Respondent urges the Court to uphold the Preliminary Objection and the Notice of Motion as satisfying the ingredients of a Preliminary Objection under Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd (1969) EA 696, in view of the previous suits, proceedings and Judgement as pleaded in paragraphs 24, 50, 53, 54, 55 & 56 of the petition herein. 38.On res judicata the 1st Respondent submits that the doctrine applies to constitutional petitions as held in John Florence Maritime Services Ltd & Another Vs C.S Transport & Infrastructure & others (2021) KESC 39 (KLR), Omondi Vs NBK Ltd & Others (2001) EA 178, Heintesson Vs Heintesson (1843) 3 Nan 100, Pop in Page 13 of 68

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ELC LPET E051 OF 2026 (K) Ltd & Others Vs Habib Bank A.G Zurich (1990) eKLR Section 34 (1) of the Civil Procedure Act, Uhuru Highway Development Ltd. Vs CBK (1996) eKLR, Koigi Wamwere Vs A.G (2004) eKLR, Republic vs Karisa Kenga & Others (2017) EKLR and Ballevue Development Co.Ltd vs Gikongo & Others (2018) eKLR that on subjudice the 1 st Respondent relies on Kenya National Human rights vs AG & Others (2020) eKLR, Wuor vs Beatipas Enterprises Ltd (2025) KENC 13501(KLR). 39.On abuse of Court process, the 1st Respondent relies on Muchanga Investment Ltd. Vs Safaris Unlimited Africa Ltd & Others (2009) eKLR. 40.Regarding the 1st application, the 1st Respondent submits that the petitioner was a party in ELC No. 102 of 2002, and that there is a pending Civil application at the Court of Appeal, a non-contested fact in paragraphs 54 & 56 of the petition. Reliance is placed on IEBC & Others vs Jane Chepengeter & Others (2015) KESC 2 (KLR); Oraro vs Mbaja ( 2005) 1 KLR 141; IEBC vs Maina Kiai & Others (2017 ) eKLR. Page 14 of 68

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ELC LPET E051 OF 2026 41.The 1st Respondent submits that prayers (e), (f) & (g) of the petition seek issues or prayers that are barred on account of res judicata. 42.Regarding conservatory orders, the 1st Respondent submits that the reliefs do not meet the tests in Gatirau Peter Munya vs Dickson Mwenda Kithinji & Others (2012) eKLR, B.O.M Uhuru Secondary School vs County Director of Education & Others (2015) eKLR, Mvai Ltd vs First American Bank of Kenya & Others (2003) KECA KLR. 43.The 1st Respondent submits that the Petitioners have no defined interest in the suit land. It is submitted that the constitutional test to establish a prima facie case as per Mrao Ltd vs First American Bank of Kenya Ltd & Others (2003) KECA 175 KLR is the existence of a right to be protected, threatened by an act sought to be restrained. 44.In this case, in the absence of such a right, there is nothing capable of being infringed and nothing for the Court to protect, however sympathetically the applicant’s circumstances may be viewed. Page 15 of 68

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ELC LPET E051 OF 2026 45.The 1st Respondent submits that under the Land Registration Act it is the act of registration that vests and confers proprietary rights. In this case, the Petitioner holds no registrable interest of any kind in the suit property, and all other claims, be they based on adverse possession or the alleged colonial squatter’s statements, and otherwise, have been found baseless and unfounded, unlike the 1 st Respondent, which has a registrable interest as evidenced by the certificate of lease. 46.As to eviction alleged to have taken place on 3.7.2026, the 1st Respondent submits that there is no evidence by way of an OB report, police abstract, police report, medical evidence and a single photograph for the alleged operation of this magnitude and gravity manned by the police. 47. The 1st Respondent, on the contrary, submits that after the Judgment in February 2026, the occupants accepted the outcome and vacated progressively and peacefully over approximately four months, dismantled Page 16 of 68 the land a voluntarily, period of their own

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ELC LPET E051 OF 2026 structures, salvaged their own material and left of their own accord. 48.It is submitted that the vacation of the applicants from the land m was documented and consensual, during which the occupants executed and made acknowledgements confirming that they had vacated the land of their own free will, without any coercion or forcible removal, with enough time to vacate, as per Annexure AWS (5). 49. The 1st Respondent submits that the occupants were also further provided with ex-gratia payments and relocation support in collaboration with the administration through the area Chief, as per photograph marked AWS (6) at the Chief’s Office. 50.It is submitted that the Petitioners cannot approbate and reprobate at the same time; persons who accepted exgratia payment and relocation assistance cannot turn around to allege forcible eviction, making the petition an attempt to seek to secure compensation twice over. 51.The1st Respondent submits that annexures marked RKK (2) & (3) are self-contradictory, on top of being inadmissible for want of compliance with section 106B (1) Page 17 of 68

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ELC LPET E051 OF 2026 & 4 of the Evidence Act. Reliance is placed on County Assembly of Kisauna & Others vs Kisumu County Assembly Service Board & Others (2015) eKLR, Ogembo vs Yongo Civil Appeal No. E200 of 2023 (2024) KENC 15763 (KLR) and John Makata Malombe vs Charity Kaluki Ngilu & Others (2018) eKLR. 52.As regards sections 152 A to 152 H of the Land Act, it is submitted that where occupants voluntarily vacate land, there can be no eviction and therefore the petition herein fails since, if there was none, the alleged violation of Articles 27,28,29,40,43,47,48,50 & 53 of the Constitution fades away. 53.The 1st Respondent submits that conservatory orders are aimed at preserving the existing state of affairs. In this case, the occupants of the 17.86 Ha Land having voluntarily vacated and removed their own structures, there is no state of affairs capable of being preserved, as the subject land is currently vacant, as it appears in photos marked AWS (7), which, if the Court were to be minded to pay a visit, would confirm the same fact. Page 18 of 68

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ELC LPET E051 OF 2026 54.The 1st Respondent submits that the subject land is registered, permanent, immovable, identifiable and incapable of dissipation. Further, it is submitted that the trust land has not been alienated, charged, subdivided or transferred since the 1st Respondent has no intention of doing so, more so when the title carries with it restrictions under section 48 of the Land Registration Act and as such it is not possible to do such acts as alleged to dispose of the land without the written consent of the lessor, making the Petitioner’s apprehension illusory. 55.On the nugatory aspect, the Court is invited to be guided by Kakuzi PLC vs County Government of Murang'a & Another (2015) eKLR; otherwise, the land will still be there; hence, the petition will not be restrained, nugatory in the absence of conservatory orders. 56.The 1st Respondent, in the circumstances, submits that what the Petitioners are seeking is not preservation but reconstruction of a state of affairs that has lawfully ceased to exist, and that they did not lodge a caution or restriction against the title pursuant to section 71 of the Land Registration Act. Page 19 of 68

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ELC LPET E051 OF 2026 57.The 1st Respondent submits that the only relief available, if at all in the circumstances the Petitioner were to succeed in the petition, was only damages, in view of the earlier Judgement on title, and the rights to the land as confirmed in favour of the 1 st Respondent in previous litigation. 58.The 1st Respondent submits that, in this case, a person with no right or registrable interest in the land cannot be restored to it as a remedy for the manner of his departure, however irregular that manner is alleged to have been. Reliance is placed on Musembi & 13 others vs Moi Education Centre Co.Ltd & Others (2021) KESC 50 (KLR), where the Court held the remedy lay in damages but not on restoration to occupation, or rebuilding. 59.The 1st Respondent submits that since its title has not been impeached by the Petitioners through any Court process so far, and given proprietary interest, only the Petitioners hold no compensation for alleged unlawful eviction, if there were to succeed at the trial, would be available but not restoration. Page 20 of 68

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ELC LPET E051 OF 2026 60.The 1st Respondent submits that while it acknowledges and does not shrink from the other side of the Musembi case, a claim founded on the manner of an eviction may be entertained notwithstanding that the proprietor’s title is unimpeached, only that the only remedy available could only be damages since occupation of land, however long, does not of itself confer title or a right to remain upon it as we held in Mitu Bell Welfare Society vs Kenya Airport Authority & Others (2021) KESC 34 (KLR). 61.The 1st Respondent submits that, in the circumstances, prayers 3 & 4 of the Notice of Motion are unavailable to the Petitioners if restoration to the land at the main hearing is not available. 62.The 1st Respondent submits that the orders sought by the Petitioners are not conservatory in nature but a final mandatory injunction at the interlocutory stage without trial in favour of a person who, previously, in a full trial, was refused similar orders in ELC No.102 of 2002. 63.In substance, the 1st Respondent submits that the Petitioners are seeking to redo the Judgment of Angote –J by interlocutory orders, and Page 21 of 68 to preempt or render

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ELC LPET E051 OF 2026 academic the determination of the Court of Appeal application No.E093 of 2026, which, as a matter of judicial comity, this court should decline jurisdiction. 64.The 1st Respondent submits that, as held in the Munya case (supra), public interest is central to the grant of conservatory reliefs. In this case, it is submitted that orders against finality of litigation raise the question of the integrity of the land register, the protection of a registered proprietor whose title has been judicially confirmed twice over, and ensuring that the judicial process of this Court is not circumvented by successive proceedings within or, and considering that from 3.7.2026 the court was only moved on 17th July 2026 without an explanation for the delay, hence there is no urgency warranting ex parte relief. 65.Further, it is submitted that the petitioners moved the Court ex parte without disclosing that the applicants had vacated the land voluntarily, had signed acknowledgements to that effect and had received both ex gratia payment and relocation assistance through the area chief, among other non-disclosures. Page 22 of 68

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ELC LPET E051 OF 2026 66.It is submitted that the party who has breached the duty of the fullest and frankest disclosure of all material facts, including those adverse to him, ought not and does not deserve exercised discretion in his favour. In the circumstances, the Court is urged to find the application and the preliminary objection merited. 67.The 1st Respondent takes the view that this Court is bereft of jurisdiction to sit on both the petition and the notice of motion on account of res judicata, abuse of the Court process and sub judice. 68.Having gone through the foregoing, three issues are ripe for determination, namely whether the court has jurisdiction, whether the preliminary objection by the 1 st respondent is merited and lastly whether the petitioner is entitled to conservatory orders. 69.Jurisdiction is so central to proceedings. Its determination is so fundamental and overarching as far as any judicial proceedings are concerned, as was held in Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2014] KECA 703 (KLR) Page 23 of 68

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ELC LPET E051 OF 2026 70.To establish whether there is jurisdiction, a Court of law looks at the pleadings. In Paul Mungai Kimani & Others vs Kenya Airport Authority & Others, SCOK Petition No. 11 of 2019, the Court said that one way of determining jurisdiction is to look at the original pleadings as the reference point. The Court said that it is trite law that a Court of law takes judicial notice of its own decision. 71.In Samuel Kamau Macharia & Another Vs Kenya Commercial Bank Ltd & Another (2012) eKLR and DW 1 VS Ali Mohameed (2018) eKLR, the Court said a Court's jurisdiction may not be expanded through judicial innovation or the draftsmanship and legal craftsmanship of parties through pleadings, where it does not exist. 72.Jurisdiction cannot be conferred by consent of parties or by presumption as was held in Jamal Salim vs Yusuf Abdallahi & Another (2018) eKLR and in Afera & Another vs Ulinzi Sacco Society Ltd (2002) eKLR 577. 73.The primary pleading by the Petitioners is the petition dated 17.7.2026. Richard Kamau Kahara, the mover of Page 24 of 68

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ELC LPET E051 OF 2026 the petition, describes himself as suing on his own behalf and in a representative capacity on behalf of residents of Kwa Njoroge Village, occupying land No. 20/193, now NAIROBI BLOCK 37/63. 74.The petitioners invoke Constitution to Articles 22, 23 and 258 of the challenge the constitutionality and lawfulness of the demolition carried out on 3 rd July 2026 upon LR No. 209/193, also known as Nairobi Block 37/63. 75.The reasons are that, under the 2010 Constitution as read together with sections 152A to 152 H of the Land Act, no person may claim ownership or any other proprietary interest can lawfully evict any alleged illegal occupants on public, private or community land except in strict compliance with the Constitution and the statutes. 76.In this case, the Petitioners, while indeed admitting that there have been previous judicial and quasi-judicial proceedings over their occupation of the subject property, until the demolition on 3.7.2026, none of these proceedings culminated in an order directing any eviction, or authorising the demolition or granting vacant possession of the suit property to the 1 st Respondent. Page 25 of 68

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ELC LPET E051 OF 2026 77.The Petitioners invite the Court to determine whether the 1st Respondent could lawfully base its justification to evict and/or rely on claimed proprietary rights, the registration of a certificate of lease, or Judgments that did not grant orders for demolition of an occupied settlement without complying with the Constitution and the statutes. 78.The Petitioners invite the Court to determine that their constitutional right to accessible and adequate housing, the right to fair administrative action and the proper integration of the land laws, and to re- affirm the principles that, however valid a proprietary claim may ultimately prove to be, can only be enforced through lawful judicial authority and in strict compliance with the Constitution and the statutes, without resort to self-help or extrajudicial demolition as a substitute for legal process, as prescribed by the Constitution and statutes. 79.The Petitioners submit that the constitutional question is the legality of the demolition that took place on 3.7.2026 without a Court order and the observance of the Constitution and the statutes, and the lack of issuance of Page 26 of 68

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ELC LPET E051 OF 2026 notices, service with a Court order, given the resident's known historical actual occupation. 80.At paragraphs 24 & 25 of the Petition, the petitioners admit the 1st Respondent's assertion of proprietary right over the suit property in seclusive proceedings, including petition No. 1531 of 2005, ELC Court case No. 102 of 208, and proceedings at the land acquisition Tribunal and the issuance of certificate of title thereof on 3.11.2023. 81.The Petitioners allege that none of the foregoing proceedings was an eviction order, demolition order, an order for vacant possession, or any authority permitting the forcible removal of the Petitioners from the suit property. 82.The Petitioners plead that the Court must determine if the acts of the Respondents were consistent with the Constitution, the land laws and the applicable principles of constitutional and international human rights law and, if not, grant the appropriate declaratory, restoration and compensating relief. Page 27 of 68

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ELC LPET E051 OF 2026 83. According to paragraphs 28, 29,30,31,32,& 34 of the petition, the Petitioners avers that they have properly involved the Court’s jurisdiction under Articles 22,23,162 (2) (b), and 165 (3) of the Constitution and section 13 of the ELC Act, to determine the legality of the Respondents actions, the constitutional validity of the processes complained of, the legal effect of the Judgement relied by the Respondents, the propriety of the impugned registration and the appropriate constitutional remedies arising from the matters pleaded therein. 84.In paragraphs 30 & 31 of the petition, the Petitioners aver that the petition concerns the occupation, possession, administration and title to the suit property, the legality of the registration process relating to the suit property, the alleged demolition and eviction carried out on 3.7.2026 and the alleged violation of their constitutional right arising out of those matters. 85.At paragraphs 35,36,37,38,39,40,41,42,423,44,45,46,47,& petition, the Petitioners give the 48 of the historical land documented history for Kwa Njoroge village, since the Page 28 of 68

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ELC LPET E051 OF 2026 colonial period, the alleged failure by the Respondents to act in line with their statutory and constitutional obligations while undertaking any eviction or removal on 3.7.2026. 86.In paragraphs 48,49,50,51,52,53,54,56,57,58,59,60,& 61 of the petition, the Petitioners set out details of judicial proceedings demonstrating that no eviction or demolition orders were ever issued including in Misc Civil Case No. 1531 of 2005 (Originating summons), ELC No 102 of 2008, Land Acquisition Tribunal No E054 of 2020 and in Civil application No. Nairobi E093 of 2026 pending hearing and determination of the Court of Appeal. 87.The petitioners aver that in the previous proceedings and judgments, no orders for eviction, demolition, vacant possession or any other orders authorising the removal of the for the village were issued despite their actual possession of the land. 88.At paragraph 70 of the petition, the Petitioners set out the constitutional questions for the Court's determination, namely; Page 29 of 68

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ELC LPET E051 OF 2026 (i) Whether the continued occupation and utilisation of the suit property by the Petitioners and the residents of Kwa material facts Njoroge Village constitute concerning the ownership, registration, renewal of lease, use and compulsory acquisition of the suit property. (ii) Whether the Judgment delivered in Constitution Petition No.1531 of 2005, ELC No. 102 of 2008 and the land acquisition tribunal proceedings of 2024 can properly be interpreted as conferring authority to evict the Petitioners and to demolish the village when the issue of these Judgments expressly granted such orders of eviction, demolition or vacant possession. (iii) Whether the registration and issuance of the certificate of lease, in favour of the 1st Respondent on 3.11.2023 during the pendency of litigation, altered or extinguished the constitutional and statutory protest available to persons in actual occupation of the land. Page 30 of 68

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ELC LPET E051 OF 2026 (iv) Whether, following the land laws of Act No. 28 of 2016, any person asserting property rights over occupied land could lawfully enforce those rights otherwise than in accordance with sections 152 A to 152 H of the Land Act. (v) Whether the demolition of Kwa Njoroge Village on 3.7.2016 undertakes in the absence of a demolition order eviction order or order of vacant possession and without compliance with section 152 A-152 H of the Land Act violated Article 2, 10, 20, 21, 22, 23, 27, 28, 40, 43, 48, 50 & 53 of the Constitution. (vi) Whether the conduct of the Respondents was consistent with Kenya’s obligation international law, including the under International Covenant on economic and Cultural Rights, the African Charter on Human & people’s Rights and the International standards governing protection against arbitrary and unlawful forcible eviction, as they form part of Kenya Law under Articles (215) & (216) of the Constitution. Page 31 of 68

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ELC LPET E051 OF 2026 (vii) Whether proprietary rights, however lawfully acquired, may be enforced through extrajudicial demolition of an occupied community or whether the Constitution, the land laws and regulations require that such right be enforced only through lawful judicial authorities and in strict compliance with the mandatory statutory safeguards enacted by Parliament. 89.In the supporting affidavit sworn by the Petitioners, they plead and depose that they challenge, inter alia, the unlawful registration of a certificate of lease, the forcible eviction and demolition of Kwa Njoroge Village on 3 rd July 2026 and the violation of their rights, where they have lived since colonial times to the present, openly, peacefully, continuously and with the knowledge of all the successive government and public authorities. 90.The Petitioners, in their documents, admit that there have been engagements & disputes over the ownership, occupation and use of the Land, among them Nairobi ELC No. 102 of 2008 as per Judgment attached as RKK (2) whereof the interested party was an active participant. Page 32 of 68

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ELC LPET E051 OF 2026 91.The Petitioners depose that despite the continued occupation and existing disputes, the 1st Respondent was issued and registered as owner of the land on 3.11.2023 as per a copy of the certificate of lease attached as RKK (3). 92.The Petitioners depose that they were not served with any notice after registration regarding their occupation or requiring them to vacate the land, or regarding any intended eviction. 93.Further, the Petitioners aver that they were never invited to any meeting or consultation concerning their occupation or offered any opportunity to present their position before any decision affecting their homes or occupation was made. 94.The Petitioners depose that throughout the period preceding the forcible eviction, they continued to reside on the land peacefully, believing that the dispute relating to that ownership and occupation of the land would be resolved constitutionally and through judicial process. 95.The Petitioners depose that, contrary to their legitimate expectation, the Respondents, acting either jointly or Page 33 of 68

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ELC LPET E051 OF 2026 through their officers, agents, and persons acting under their Authority, proceeded to undertake and facilitate the forcible eviction and demolition on 3rd July 2026, without compliance with the Constitution or the mandatory procedures provided by law. 96.The Petitioners depose that on 3rd July, 2026, a large contingent of police officers accompanied by numerous civilians with heavy machinery entered the suit premises, cordoned off the village and restricted any movements of the residents, thereby preventing any access into, or salvage or removal of personal belongings as the demolition was demolition commenced. 97.The Petitioners depose that the undertaken using excavators, bulldozers and other heavy machinery which systematically residential houses and other demolished their structures under their occupation. 98.The Petitioners depose that none of the personnel in charge of or undertaking the demolition, despite requests, including the police officers offering security during the Page 34 of 68

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ELC LPET E051 OF 2026 demolition exercise, produced any order of the Court authorising the eviction and/or the demolition. 99.The Petitioners depose that before the said exercise, no statutory notice had been served or effected upon them or the residents, or invited them to any consultation or offered them an opportunity to be heard or informed of any relocation or settlement arrangement, compensation or presentation with any Court orders authorising either their eviction or the demolition of their home. 100. The Petitioners depose and aver that the subject property housed or was occupied by over 140 families whose houses and development were razed to the ground, destroyed, damaged and/or buried beneath the debris, making them lose all their belongings, personal documents, loss n of trade and business properties. 101. The Petitioners aver that they were immediately rendered homeless, became displaced, their school-going children were displaced, or their education interrupted, and became exposed to suffering, loss and damage, without any of the Respondents offering any alternative Page 35 of 68

page 35 of 68

ELC LPET E051 OF 2026 accommodation, humanitarian assistance or emergency intervention. 102. The Petitioners depose that their means of livelihood, trade and other income-generating activities within the village were subjected disrupted, to financial destroyed hardship, and have emotional been distress, psychological trauma, humiliation and loss of dignity, especially in a village they have known as their only home. 103. The Petitioners depose that despite the extensive destruction occasioned by the eviction and demolition none of the compensation, Respondents provided them with temporary shelter, resettlement, humanitarian assistance as nay meaningful measures to alleviate the suffering to alleviate the suffering inflicted upon them and the affected residents. 104. The Petitioners depose that the 1st Respondent, having obtained a certificate of lease, thereafter caused, authorised, procured and/or participated in the eviction and the demolition, while the 2nd, 3rd, 4th Respondents, being public officers and state organs, were at all material times aware, or ought to have reasonably known, of the Page 36 of 68

page 36 of 68

ELC LPET E051 OF 2026 Petitioners' occupation and, as a long-established community of over 140 families and about 2500 residents, to ensure that any one affecting the Petitioners occupation must comply with the law and the constitution. 105. The Petitioners depose that the 6th respondent's police officers were the ones responsible for providing security during the demolition exercise without compliance with the law. 106. The petitioners blame the interested party, despite previous litigation, for complicity in the purported eviction and demolition without a court order. 107.The Petitioners depose that the acts of omission and commission by the Respondents jointly and severally amount to a violation of their fundamental rights and freedom; hence the reliefs sought. 108.Other than the Preliminary Objection dated 27.7.2025 and the Notice of Motion thereof, the Respondents, including the 1st Respondent, have not filed any other formal response to the petition and the supporting affidavit as required under Rule 15 (1) (2) & (3) of the Constitution of Kenya (Protection Page 37 of 68 of Rights and

page 37 of 68

ELC LPET E051 OF 2026 Fundamental Freedoms) Practice and Procedure Rules 2013. 109.Despite the foregoing, the Court is nevertheless asked to find the preliminary objection and the 1 st respondent’s notice of motion that it lacks jurisdiction to entertain the petition dated 17.7.2021 and the Notice of Motion seeking conservatory orders of the even date on account of res judicata, sub judice, and abuse of the court process. 110.A Preliminary Objection, as held in Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, consists of a pure point of law, raised or pleaded or arising out of a clear implication out of the pleadings, which, if argued, may dispose of a suit. 111.In Oraro vs Mbaja, Civil Suit No. 85 of 1992, the Court said anything alleged to be a Preliminary Objection which requires determination of contested fact or requires evidential material to prove it or is based on the exercise of the Court's discretion cannot amount to a Preliminary Objection. 112.In IEBC vs Jane Chepngeter & Others (2015) KESC 2 (KLR), the Court said a Preliminary Objection is raised Page 38 of 68

page 38 of 68

ELC LPET E051 OF 2026 where there is no contest as to facts which then lead to one conclusion that the facts are incompatible with that point of law. The Court said that a Preliminary Objection should be founded upon a settled and crisp point of law. 113.The Court said that a true point of objection serves two purposes, namely as a shield for the originator against the profligate waste of time and other resources and secondly as a public cause of sparing scarce judicial time so that it could be committed only to deserving cases of dispute settlement. 114.The Court warned that it is improper for a party to resort t to the Preliminary Objection as a sword for winning a case otherwise destined to be resolved judicially and on merit. 115.In John Florence Maritime Services Ltd. & another vs Cabinet Secretary Transport & Infrastructure & others (2021) KESC 3a (KLR), a plea of res judicata had been raised but not as a Preliminary Objection. In both grounds of opposition and in a replying affidavit to the appellant’s application. The High Court made a finding that the petition was res judicata because of a previous Page 39 of 68

page 39 of 68

ELC LPET E051 OF 2026 decision by the High Court in a Judicial Review matter. On appeal, the Court of Appeal upheld the High Court decision. 116.At the Supreme Court, the Court held that for res judicata to apply, four elements have to be demonstrated, namely; a) There was a former Judgement or order which was final. b) The Judgement or order was on merit. c) The Judgement or order was rendered by a court having jurisdiction over the subject matter and the parties. d) There had to be between the first and the second action identical parties, subject matter and cause of action. 117.The Court said that the doctrine of res judicata is based on the principle of finality as a matter of public policy, as a key pillar on which a judicial system is founded, to prevent multiplicity of suits which would ordinarily clog the Court, apart from occasioning unnecessary cost to the parties, and to ensure that litigation comes to an end, where a Page 40 of 68

page 40 of 68

ELC LPET E051 OF 2026 verdict translates into fruits for one party and a liability for another party in a conclusive manner. 118.The Court said that if it were to find that the doctrine did not apply to constitutional petitions, the doctrine could lose much of its legitimacy and validity. The Court said that through res judicata, courts aim to promote the orderly administration of justice; it was not to be at the cost of real injustice and before a Court could give an exception to the applicability of res judicata, especially in constitutional litigation where rights keep on evolving, mutating and assuming multi-faceted dimensions, the Court has to consider whether there was a potential for substantial injustice if a Court did not hear a constitutional matter or issue on merits. 119.The Court, according to the aforesaid case law, in establishing res judicata has to do so by examining the entirety of the circumstances as well as address the factors for and against the exercise of such discretionary power. Additionally, the Court said that a litigant has to demonstrate special circumstances warranting the Court to make such an exception. Page 41 of 68

page 41 of 68

ELC LPET E051 OF 2026 120.Guided by the case law, the major complaint by the 1 st Respondent is that the petition is res judicata in view of previous litigation over the same parties, subject matter and issues. 121.The doctrine of res judicata, as held in E.t v. A.G & others (2012) eKLR, is a fundamental one to ensure that parties stop re-litigating issues that have already been determined by a Court of competent jurisdiction. In KCB Ltd. & Another (2016) eKLR, the Court said that the doctrine allows a litigant only one bite at the cherry. 122.In Omondi vs NBK & Others (2001) EA 177, the Court held that a party cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit. 123.Further, in Henderson v Henderson (1843) 67 ER 313, the court said that it is a principle of practice and law that the parties to a litigation bring forward the whole case; otherwise the plea of res judicata applies not only to the point upon which the Court was required to form an opinion, but also to every point which properly belonged to the subject matter. Page 42 of 68

page 42 of 68

ELC LPET E051 OF 2026 124.In James Michael MC Tough and Another vs NBK , Court of Appeal in Kisumu Civil Application No. E076 of 2025, several applications had been filed by the applicant to stop an auction same. The Court objected that it was improper for the applicant to split the iv claims into smaller but distinct claims so that they could purport to bring them in Court by instalments. The Court termed the application as unwarranted, seeking to challenge the same issue already determined. The Court cited with approval Muchanga Investment Ltd vs Safaris Unlimited Africa Ltd & Another (2009) KECA 453 (KLR), that abuse of court occurs where a party employs judicial processes to the irritation and annoyance of his op, which amounts to or impedes the efficient and effective administration of justice. The Court said that the doctrine of abuse of Court applies where a proceeding is wanting in bona fides. 125.The sub judice rule, on the other hand, is founded on section 6 of the Civil Procedure Act. In Kenya National Commission on Human Rights v AG, IEBC (IP) & 16 others (2002) eKLR, the Court said that the purpose is Page 43 of 68

page 43 of 68

ELC LPET E051 OF 2026 to stop the filing of multiplicity of suits between the same parties or those claiming order them over the same subject matter, to avoid abuse of the civil process and to diminish the chances of a Court with competent jurisdiction issuing conflicting decisions over the same subject matter. 126.In Kenya National Commission on Human Rights vs A.G IEBC & others (IPs)(2020) KESC 54 (KLR), the court cited Black Laws Dictionary definition of the concept, whose purpose is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter in different courts or forums. 127.In Nyanza Garage vs A.G. Kambalaa, High Court Civil Suit No. 450 of 1993, the Court said that the sub judice rule ensures that judicial resources are kept to a minimum, both in time and money spent on a matter that could be resolved in one suit. The Court said that multiplicity of suits clogs the wheel of justice, holding up resources that would be available for fresh matters and Page 44 of 68

page 44 of 68

ELC LPET E051 OF 2026 contributes to the backlog of cases that Courts have to deal with. 128.In Rep vs Paul Kariuki Kihara Kariuki, AG & others ex parte LSK (2020) eKLR, the Court said that with a large number of pending cases, the judiciary is overburdened and faces a lack of resources and if two suits arising out of the same issues between the same parties are brought before court where is bound to be wastage of resources and frivolous litigation. The Court said that the test is whether, on a final decision being reached in the previously instituted suit, such decision would operate on res judicata in the judgment suit. 129.In Thiba Mills Hydro Co. Ltd vs Joseph Karu Ndwiga (Supra), the Court held that it is not the form in which the suit is framed that determines sub judice; rather, it is the substance of the suit. 130.The court went on to say that there can be no justification in having two cases being heard in parallel to each other. 131. conservatory orders are governed by Rule 3(8) of the Mutunga Rules . They are issued at the discretion of the Page 45 of 68

page 45 of 68

ELC LPET E051 OF 2026 court. The purpose of issuing conservatory orders is to freeze a situation or stop a particular action from continuing, to prevent violation of constitutional rights or freedom and to preserve the subject matter from orders must show the dissipation. 132.A party seeking such to satisfaction of the court that his or her rights are under threat of violation, are being violated or threatened with violation, and that the breach or threat is likely to continue unless a conservatory order is issued, as held in Centre for Right Education and Awareness (CREAW) and another vs Speaker of National Assembly and others (2017) eKLR. 133.An order of conservatory order directs both parties to undertake that no action of any kind to enforce their respective right will be taken until the substantive petition is heard and determined, and that to ensure that the subject matter will remain intact. 134.In Attorney General vs Sumair Bansiraj (1985) 38 WIR 286, the Court said that the critical factor in such Page 46 of 68

page 46 of 68

ELC LPET E051 OF 2026 cases is the exercise of discretion to hold the scales of justice evenly, not duly between man and state. 135.In Gatirau Peter Muuya vs Dickson Mwenda Kithinji & Others , SCOK Application No. 5 of 2014 (2014)eKLR, the Court said conservatory orders are aimed at facilitating ordered functioning within public agencies as well as to uphold the adjudicatory authority of the Court, in the public interest, which, unlike interlocutory injunctive orders are granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values and the proportionate magnitude and priority levels attributed to the relevant causes. 136. In The Board of Management of Uhuru Secondary School vs City County Director of Education and 2 others (2015) eKLR, the court said that an applicant must demonstrate an arguable prima facie case with a likelihood of success, and that in the absence of a conservatory order he is likely to suffer prejudice. 137.The Court said that it had to consider whether a grant or denial of the conservatory order will enhance the constitutional values and objects of a specific right or Page 47 of 68

page 47 of 68

ELC LPET E051 OF 2026 freedom in the Bill of Rights, and whether, if an interim order is not granted, the petition or subtraction will be rendered nugatory. 138. On res judicata, the plaintiff in ELC No. 108/2003 was basing the claim on adverse possession on a similar set of facts as set out in the petition herein. 139.The interested party herein in Petition No. 24 of 2012 was challenging the 1st Respondent and the letter of allotment. 140.The 1st Respondent and the 5th Respondents aver that the title to the land was re-affirmed in Nairobi HCC Misc No 1531 of 2003, which culminated in a Judgement directing that the lease be extended and registered. further the 5 th Respondent now, the 1st Respondent herein, was basing the claim on Judgement in Nairobi Constitutional Petition No. 396 of 2016, which re-affirmed its title. 141.In the recent Judgment, the Court made a finding on paragraph 191 that the said judgment in Nairobi Court Misc Civil No.1531 of 2008 (Originating Summons) and Nairobi High Court Petition No. 396 of 2016 remain valid Page 48 of 68

page 48 of 68

ELC LPET E051 OF 2026 and binding, having neither been set aside nor overturned on appeal. 142.The Court, in paragraph 202, said that any attempt to re-litigate the validity of the renewal of the lease was an impermissible collateral attack on a subsisting Judgement. It is on two bases that the interested party’s petition was dismissed. 143.As to ELC No. 102 of 2008 regarding adverse possession, the Court is the Judgment of 26.2.2026, on paragraphs 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, and 226, made a finding that the ingredients of adverse possession had not been met by the petitioners. 144.PW 1stated that the suit was David Kiharu Chege, while DW 1 was Abdul Waheed Sheikh. DW 3 was the principal land Registrar; DW 1 and DW 2 are, in the instant petition, the 1st, 2nd and 3rd Respondents, while PW 5 is currently the interested party in this matter. 145.After the judgment, it is not disputed that the aggrieved parties filed an appeal and an application for interim injunction pending the intended appeal at the Court of Appeal, coming to Land Acquisition Tribunal Case No. E054 Page 49 of 68

page 49 of 68

ELC LPET E051 OF 2026 of 2024, the 1st Respondent was the complainant seeking fair and just compensation for the compulsory acquisition of part of LR No 209/193, now Nairobi Block 37/63. The Judgment of 9.12.2025 made a finding that the 1 st Respondent's right of ownership had been violated by the NLC & KENHA to be entitled to compensation. 146.In the supporting affidavit to this petition sworn by Richard Kamau Kahara, he specifically omitted to mention that there is a pending appeal and an application filed against the Judgment of 26.2.2026 at the Court of Appeal. That disclosure, however, appears in paragraph 55 of the petition dated 17.7.2026, save that the Petitioners omit to mention that they had sought interim orders of injunction pending the interested hearing. 147.Section 6 of the Civil Procedure Act is in clear terms, as held in Rep. Vs Paul Kihara Kariuki A.G & others exparte LSK (2020) eKLR. As long as a similar application is pending in a Court of law for adjudication between the same parties. Mativo – Judge as he then was, held that any other Court is barred from trying that issue so long as the first suit goes. Page 50 of 68

page 50 of 68

ELC LPET E051 OF 2026 148.The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them. 149.The 1st Respondent takes the view that the suit property in Civil Application No. E093 of 2026 and in this petition is one and the same parcel, and the dispute is between the same parties, or parties under the same title. 150.It is submitted that the Court of Appeal is asked to restrain the eviction of the resident from the lands in this application dated 17.7.2026. 151.Prayers no. 2,3 & 4 ask this Court to restrain eviction, demolition and interference in dispute of the same land and same person. 152.The 1st Respondent submits that the application at the Court of Appeal was filed on 26.2.2026, five months before the petition, and therefore, having failed to secure relief, the Petitioners cannot relitigate the same interlocutory application before this Court. 153. It is the 1st Respondent's contention that this Court granting the conservatory orders Page 51 of 68 sought would be

page 51 of 68

ELC LPET E051 OF 2026 irreconcilable with orders of superior against those of the Court of Appeal, if it were to decline to issue the orders. 154. The 1st Respondent urges the court to be guided by Wuor vs Beatipas Enterprises Ltd (2025) KENC 13501(KLR). (supra) and Muchanga Investment Ltd vs Safaris Unlimited AFRICA & others (2009) eKLR. 155.A cause of action refers to acts or the part of the defendant which give rise to a cause of complaint by the plaintiff. See DT Dobie (K) Ltd vs Muchina (1980) KECA 3 (KLR). 156.The Court has set out the content of the petition, that the moment that the 1st Respondent has filed a Preliminary Objection and the notice of motion for striking out the cause of action as pleaded by the Petitioners largely revolves around the events of 3.7.2026, the rest of the issues raised in the petition give only the chronology of events preceding the date of 3.7.2026. 157.In CCK & others vs Royal Media Services Ltd & others (2014) eKLR, the Court said that although Article 22 (1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or Page 52 of 68

page 52 of 68

ELC LPET E051 OF 2026 freedom has been denied, violated, infringed, or threatened, a party involving the article has to show the right said to be infringed, as well as the basis of his or her grievance. 158.The necessity of the links between the aggrieved party and the provision of the Constitution alleged to have been infringed, and the manifestation of the contravention or infringed have to be demonstrated, as a pivotal positive rule or foundation, and good faith is engaging the constitutional process of dispute. 159.The grievance of this petition, in my view, is not so much on whether the outcomes of the previous litigation and Judgement were lawful or not but whether the 1 st Respondent and the rest of the Respondents complied with the constitutional and statutory frameworks on eviction, demolition, and resettlement of illegal occupants on private, public, or community land. From the replying affidavit by the 1st Respondent and the annexure thereto, the 1st Respondent admits that it initiated some negotiations, made ex gratia payment and land resettlement assistance to some of the illegal occupants. Page 53 of 68

page 53 of 68

ELC LPET E051 OF 2026 160.As held in Uhuru Muigai Kenyatta vs Nairobi Star Publication Ltd (2013) eKLR, where there is remedy in the Civil law a party should pursue that remedy otherwise not every ill in the society should attract a constitutional action. 161.In John Harun Mwau vs Peter Gastron & others (2014) eKLR, it was held that Courts will not consider a constitutional question unless the existence of a remedy depicts on it. 162.The 1st Respondent does not dispute that there was a pending Civil Appeal No. E093 of 2026 filed on 26.2.2026 was eviction, demolition and removal of the illegal occupants or the suit property. The 1 st Respondent has not filed a formal response to the petition, which it wants struck out on account of the Respondent's abuse of Court process, and sub-judice to state that there was a formal notice to evict, demolish and/or remove the illegal occupants and or that it has issued with an eviction order, demolition orders, or an order for vacant possession after the judgment of 26.2.2026 or earlier, to sanction the event of 3.7.2026 if party cannot approbate at the same time. Page 54 of 68

page 54 of 68

ELC LPET E051 OF 2026 163.The 1st Respondent is not saying that the petition raises no constitutional issues or questions. All that the 1 st Respondent is saying is that the subject matter has been disputed previously for 18 years. 164.In James Kanyika Nderitu vs AG & Others (2019) eKLR, the Court said that a constitutional petition cannot be used to circumvent primary legislation for enforcement of a given right or violation. The Court said that it was not open to the appellant to urge the Court that there can be no wrong without a remedy. 165.In this matter it is the 1 st Respondent who is urging the Court to find that if the Petitioners were wronged, or their right were allegedly infringed, they should pursue it at the Court of Appeal or is the previous suit by dint of section 34 of the Civil Procedure Act. 166.What the 1st Respondent has not demonstrated or exhibited in this matter is whether there is a Court decree which they obtained from any Court of law to cause, or initiate the events of 3.7.2026, the grievance of the petition before Court, now to say that the Petitioners have an alternative remedy and should have pursued their Page 55 of 68

page 55 of 68

ELC LPET E051 OF 2026 cause of action within that time frame or forum instead of through a constitutional process as was held in Patrick Mbau Karanja vs Kenyatta University (2012) eKLR and in Waithaka vs Kenyatta University. 167.In Godfrey Paul Okuloga & others vs Nabel Olaka & another (2018) eKLR, the Court held that a party should only file a constitutional petition for redress of breach of the Constitution or infringed of or threat to a right or fundamental freedom and that any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure. 168.It is not disputed that there is a pending appeal following the Judgement on 26.2.2026 by this Court differently consolidated. 169.While that appeal is pending there was an alleged breach of the constitution regarding the rights or interest of illegal occupants or the suit land on 3.7.2026. 170.The 1st Respondent if I get it right, Preliminary Objection is that this Court is bereft of jurisdiction, cannot entertain the petition otherwise it will offend the doctrine of res subjudice, res judicata and judicial community. Page 56 of 68

page 56 of 68

ELC LPET E051 OF 2026 171.Article 22 (2) Court grants a person actions in their won interest, a member of in the interest of a group or class of persons or in public interest, or in association acting in the interest of one or more of its members to instituted constitutional petition. 172.Article 19 of the constitution procedures that the Bill of Rights does not exclude other rights and fundamental freedoms not in the Bill of right both recognized or conferred by law, so long as they are not inconsistent with Chapter IV of the Constitution. The Petitioner cites that the right to housing, as to those of vulnerable groups of persons who were among the persons in Kwa Njoroge village whose rights on 3.7.2026 were violated, threatened, breached and/or violated in an exercise by the 1st Respondent, with the assistance of the police, to evict, demolish, and destroy their livelihood and co-existence in breach of constitutional, statutory and international law procedures on forced eviction and demolition. 173.In Mitu Bell Welfare Society vs Kenya Airports Authority & Others K (2021) KESC 34 KLR (11 th January 2021 -Judgement the court held that Article 21 Page 57 of 68

page 57 of 68

ELC LPET E051 OF 2026 (1) of the Constitution, the state and state organs had the duty to observe, respect, protect, promote and fulfil the Bill of Rights and fundamental freedoms, including the setting of standards in the realisation of socio-economic rights, inter alia housing and to guide in its enforcement of rights. 174.The Court said that illegal occupation of private land would not create a prescriptive right over that land and in favour of the occupants. 175.The Court said that where the landless occupy public land and establish houses, they did not acquire title to the land, but they had a proprietary right to housing over the same. 176.The Court said that, faced with an eviction or the said public interest, potential evictees had a right to petition the Court for protection. 177.The Court said that the petition need not necessarily be in the form of an order restraining the state agency from evicting the occupant. 178.The Court said that under Article 23(3) of the Constitution Of Kenya, the Court could craft orders aimed Page 58 of 68

page 58 of 68

ELC LPET E051 OF 2026 at protecting that right, such as compensation, the requirement of adequate notice before eviction, the observance of human conduct during eviction, and the possession of alternative land for settlement, among others. 179.The Court said that action by state organs carried out in flagrant disregard of a Court Order undermined the Constitution's orders, more so if they resulted in the violation of citizens’ rights. 180.In Moi Educational Centre Co. Ltd vs Musembi & others (2017) KECA 107 (KLR), the court said that the appellant should have sought a Court order to carry out the eviction and that the manner in which its evictees were evicted and their houses and business structures demolished, was in violation of their right to human dignity. 181. When the matter went to the Supreme Court, the Court held that regardless of title, even if private landowners have the right to evict, they could be liable for damages if they evict unconstitutionally. Page 59 of 68

page 59 of 68

ELC LPET E051 OF 2026 182.The Court re-affirmed that forced evictions are illegal under interlocutory law and not private entities, under Article 20 (1) of the Constitution, should not violate Article 43 of the Constitution since the article applies both horizontally and vertically, binding non-estate parties or organs. 183.A Court of law should not be used to enforce an illegality or as an instrument of illegality. A Court of law does not get on speculation or suppositions. 184.Having looked proceedings, the at the Court previous has not Judgment come across and any Judgement on merits or otherwise where the cause of action, issues, or the events leading to and for 3.7.2026 were heard and determined judicially on merits by a Court of competent jurisdiction, for the doctrine of res judicata and abuse of Court process to apply. 185.A Court of law acts on raw evidence of the existence of fact in issue and relevant facts in issue. 186.In the Mitubell case, the Court held that the right to housing in its basic form is not predicated upon title to Page 60 of 68

page 60 of 68

ELC LPET E051 OF 2026 land that Court are these to ensure that such protection of the right to housing is realised. 187.In Julius L. Marten vs Caleb Arap Rotich (2021) KEELC 195 (KLR) the Court observed that any eviction has far-reaching implications as it entails forceful removal of a party from the land he has been in possession of or occupation. 188.In Kenya Railways Corporation vs Birah & others Civil Appeal E206 of 2021 (2025) KECA 545 KLR the Court held that since the Constitution has no article on eviction Courts must be guided by international law dealing with human rights which protect evictees or those about to be evicted. 189.The Court said that forced eviction must be carried out in humane manner by; a) Giving opportunity for genuine consultation with those affected. b) Adequate and reliable notice for all affected persons prior to date scheduled for eviction. c) Information on the proposed eviction. d) Presence of a government official during eviction. Page 61 of 68

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ELC LPET E051 OF 2026 e) Identification of all those people carrying out the eviction. f) Eviction should not take place at night unless with consent. Provision of legal remedies to seek redress in Court. 190.The Court said that respect for human rights, fairness, and dignity in carrying out the eviction should be observed, and the constitutional and statutory provisions for fair administrative action must be adhered to. Looking at the foregoing binding case law, it is quite evident that what the 1st Respondent has raised is not a pure point of law. 191.Further, the Notice of Motion seeking to strike out has to be looked at in the prison of the prevailing law and jurisprudence, including in DT Dobie vs Muchina (1982) KLR and Kivanga Estate Ltd vs NBK (2017) KECA 591 KLR, that to do so is draconian and punitive, and seeks to drive a party out of access to justice without a hearing. 192.I do not find the petition so hopeless or not disclosing a reasonable cause of action that is beyond redemption by amendment arguable that a person who is to land can Page 62 of 68

page 62 of 68

ELC LPET E051 OF 2026 seek constitutional relief for an alleged illegal eviction has no legal foundation, the view of the holding in the Musembi case (Supra). 193.The argument that the petition and the Notice of Motion are res judicata and in abuse of the rule of sub judice and abuse of Court process equally fall by the wayside. 194.The petition, as founded on the eviction leading to and of 3.7.2026, in so far as and related to whether there can be compliance with the constitutional and statutory and international law standards on eviction and demolition, is a matter before the Court. 195.The cause of action arose after the Judgement and an appeal of the Court of Appeal, so the Petitioners are not guilty of the doctrine of exhaustion. 196.As held in Albert Chaurembo Mumba & 7 others vs Maurice Munyao & 148 others (2019) Eklr in the Abitha Nicholas case, the doctrine of exhaustion should not be taken as a blanket bar to prevent litigants from pursuing constitutional petitions. This is not, however, to say that the Petitioners have a right to use the constitutional party petition to seek to recall, revive or Page 63 of 68

page 63 of 68

ELC LPET E051 OF 2026 relitigate matters already dealt with in the earlier Judgment of the Court or the one before the Court of Appeal. 197.This Court is bound by the doctrine of avoidance to engage the Constitution in all manner of litigation was held in Salat vs IEBC & others (2015) eKLR and CCK in Povet (K) Ltd vs Bavarian U., Petition No. E039 of 2024. 198.A constitutional petition cannot be used to invalidate a decision of another superior Court. 199.The constitutional Court supervisory role of the High Court under Article 165 (6) of the Constitution cannot extend to declarations sought by the Petitioners as regards valid and existing unappealed or unreviewed decisions of Courts of concurrent jurisdiction. 200.In Kenya Hotel Properties Ltd. Vs N.G. and others (2020) KECA 427 (KLR), the Court held that filing of a petition to annually strike out or rescind a Judgment of an elder sibling was a quite plainly unheard-of thing. Decisions of sister courts and courts of equal status are applicable elsewhere but not before this Court. Page 64 of 68

page 64 of 68

ELC LPET E051 OF 2026 201.This Court cannot purport to quash or annul them or direct to re-open and rehear a concluded issue or matters. Any declaration by a Court without jurisdiction is itself a nullity and amounts to nothing. A High Court cannot be asked to consider the question of violation of rights arising from a proceeding before a fellow superior court. 202.In Naresh Shrinder Mirajkar vs State of Maharashtra A.R. 1967 SCVI, the Court held that whether the finding of fact recorded by the judge is right or wrong and whether the conclusion drawn by him suffers from any infirmity can only be taken at the appellate Court. 203.In essence, therefore, while exercising the powers under Article 165 2(b) of the Constitution, as a constitutional Court that’s court through a constitutional petition cannot deal with suits reliefs as prayed in paragraphs (e), (f), (g), (h), (i), of the petition dated 17.7.2026. 204.Regarding conservatory orders, such orders as held in David Ndii & others vs NG & others (2021) eKLR seek to preserve the status quo of the petition. Page 65 of 68

page 65 of 68

ELC LPET E051 OF 2026 205.The Court need be careful, as held in Muhusi (Milimani & others vs AG & others (2011) eKLR, not to reach a conclusion and/or make final findings or conclusive determination to adversely affect parties' cases. An application has to disclose an arguable prima facie case, and in the absence of conservatory orders the petition will be rendered nugatory, and he will suffer prejudice. See B.O.M Uhuru Secondary School (supra). 206.In this matter, the Notice of Motion was filed almost two weeks after the alleged demolition or eviction, so there is nothing to preserve in favour of the applicants. There is no existing real, apparent or imminent danger of dissipation of the suit property as held in Martin Nyaga Wambora vs Speaker of County Assembly of Embu & others (2014) KEHC 675 KLR, demonstrated by the applicant. There is no Supplementary affidavit to counter the assertion by the 1st Respondent that there exists a restriction on the title in favour of the lessor to stop transactions over the land without consent. The Petitioners also admit there exists a similar application at the Court of Appeal filed in February 2026. Even though the applicants Page 66 of 68

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ELC LPET E051 OF 2026 have a right to file a petition, they must act in good faith and not for collateral purposes to the detriment of the Respondents. 207.The Court is, in the circumstances, not convinced that the applicant’s petition will be nugatory in the absence of conservatory orders. 208.The applicant is directed to file the application dated 17.7.2026. The Preliminary Objection and the application dated 27.7.2026 are dismissed with no orders as to costs. 209. Orders accordingly. DATED, SIGNED AND DELIVERED THIS 16TH SEPTEMBER 2026 …………………………….. HON. JUSTICE C.K NZILI JUDGE In the presence of: 1. Lutha for Mr. Okwach for the 1st Respondent 2. Miss Kerio for the petitioners 3. Interested parties present C/A: Julius Page 67 of 68

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ELC LPET E051 OF 2026 Page 68 of 68

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