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ELCDismissedJudicial Review Case No E003 of 2024 (formerly Kwale ELC JR No E003 of 2024)

Chimwaga & 4 others v Land Registrar Kwale County & another; National Land Commission & 2 others (Interested Parties) (Environment and Land Judicial Review Case E003 of 2024) [2025] KEELC 5838 (KLR)

Environment and Land Court of Kenya
11 July 2025
5,805 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kwale refused to pause a judicial review case, confirming that interested parties cannot control litigation they did not start.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kwale (L.L Naikuni, J) determined a Notice of Motion dated 17th January 2025 filed by Ashbrook Limited, the 3rd Interested Party, seeking a stay of proceedings in Judicial Review Case No E003 of 2024 pending the hearing and determination of Kwale ELC Land Petition No E004 of 2024. Ashbrook claimed to be the registered lessee of Kwale/Diani Beach Block/1352 and alleged the Applicants were fraudulently registered as owners in January 2024. The Applicants, whose leases for parcels 1351 and 1352 had been cancelled by the Land Registrar via Gazette Notice No 10517, opposed the stay, arguing the two suits raised distinct issues - ownership in the petition versus the legality of the Registrar's decision-making process in the judicial review - and that Ashbrook, joined as a mere interested party four months after institution, lacked standing to halt the proceedings. The court framed two issues: whether the conditions for stay were met and who should bear costs. Applying the test requiring a prima facie arguable case and sufficient cause, and drawing on judicial review principles (process, not merits), the court held that the two matters were 'extremely distinct and stand out on their own feet' and that an interested party cannot purport to stop proceedings. The application was dismissed with costs to the 1st to 5th Applicants jointly and severally, and the matter was set for further directions on 16th July 2025.

Questions the Court framed

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

  1. 1.Whether the 3rd Interested Party/Applicant has met the conditions necessary for the grant of stay of proceedings
  2. 2.Who bears the costs of the application?

Key legal issues

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01

Whether the conditions for a stay of proceedings were met

Holding

The application for stay failed because no prima facie case or sufficient cause was established; the land petition and the judicial review are distinct matters that stand independently

Reasoning

The court applied the stay test analogous to Order 42 Rule 6: a prima facie arguable case and sufficient cause in the interest of justice. Comparing the pleadings, the judicial review challenges the Land Registrar's cancellation of the Applicants' leases via Gazette Notice No 10517 on process grounds (ultra vires, procedural unfairness), while the petition seeks declaratory and injunctive relief on ownership of parcel 1352 only. The suits thus raise substantially different issues between them, and the JR court is confined to process, so parallel litigation would not produce embarrassing conflicting decisions.

p. 10
02

Whether an interested party can seek a stay of proceedings

Holding

An interested party is not a main party, holds no direct claim in the suit, and lacks standing to alter or control the course of the proceedings by seeking a stay

Reasoning

Relying on Black's Law Dictionary and the Marigat Group Ranch and Leboo authorities, the court held that an interested party exists only to assist the court and must not disguise substantive claims. Ashbrook, joined four months after institution as an interested party, was contesting ownership rather than the Registrar's decision-making process, which is the domain of the plaintiffs/defendants. It therefore could not invoke the court's discretion to halt the judicial review.

p. 11
03

Who bears the costs of the application

Holding

The Applicants (1st to 5th) are entitled to costs since the 3rd Interested Party did not succeed

Reasoning

Under Section 27(1) of the Civil Procedure Act costs follow the event. Having failed on both limbs of the stay test, the 3rd Interested Party could not shift costs to the successful Applicants. The court therefore awarded costs of the Notice of Motion dated 17th January 2025 to the 1st to 5th Applicants jointly and severally.

p. 11

Legal principles established

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  • The power to grant a stay of proceedings is discretionary and requires sufficient cause: a prima facie arguable case and sufficient cause that it is in the interest of justice to grant the orders
  • An interested party is not a main party and cannot purport to stop proceedings or agitate its own rights over the subject matter of a suit
  • Judicial review is concerned with the decision-making process, not the merits or issues of ownership; a judicial review court does not determine title to land

Court orders

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  1. 1.That the Notice of Motion application dated 17th January 2025 be and is hereby found to lack merit thus dismissed.
  2. 2.That to be mentioned on 16th July, 2025 for further direction.
  3. 3.That the Interested Parties granted 14 days to fully comply.
  4. 4.That the costs of the application awarded to the 1st to 5th Applicants jointly and severally.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Civil Procedure Act Cap 21 (Sections 1A, 1B, 3, 3A, 6 and 63(e)); Order 51 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Stay of proceedings in Judicial Review Case No E003 of 2024 pending hearing and determination of Kwale ELC Land Petition No E004 of 2024

No prima facie case established; the land petition and the judicial review proceedings are distinct and stand on their own feet; the 3rd Interested Party, being only an interested party and not a main party, cannot seek to stop the proceedings

p. 10

Costs of the application to the 3rd Interested Party

The 3rd Interested Party did not succeed in establishing its case; costs follow the event under Section 27(1) of the Civil Procedure Act

p. 11

Costs

Costs of the application awarded to the 1st to 5th Applicants jointly and severally.

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 court is not convinced that there exists “a prima facie case” has been established by the 3rd Interested Party to warrant the orders for stay of proceedings of the matters.
p. 10Stay of proceedings - failure to establish prima facie case
the land Petition and the judicial review proceedings are extremely distinct and stand out on their own feet. They are not similar at all.
p. 10Distinctness of parallel proceedings
The 3rd Interested Party cannot purport to stop proceedings given that it is not a main party in the instant suit.
p. 10Standing of an interested party
a. That the Notice of Motion application dated 17th January 2025 be and is hereby found to lack merit thus dismissed.
p. 11Final orders - dismissal of the application
That the costs of the application awarded to the 1st to 5th Applicants jointly and severally.
p. 11Final orders - costs

Issues in the judgment

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minor

The judgment labels the moving party inconsistently as both 'Applicant' and '3rd Interested Party/Applicant' interchangeably

minor

The names of the Applicants are listed with slight variation in spelling between paragraphs (e.g. 'Chimwaga' and 'Chimwanga')

minor

The paragraph numbering in the Conclusion jumps from paragraph 47 to 49 with no paragraph 48

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, "Chimwaga & 4 others v Land Registrar Kwale County & another; National Land Commission & 2 others (Interested Parties) (Environment and Land Judicial Review Case E003 of 2024) [2025] KEELC 5838 (KLR)", Case Analysis (2025). Judicial Review Case No E003 of 2024 (formerly Kwale ELC JR No E003 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5838/eng@2025-07-11

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