Baobab Diagnostics Limited v Wanja & 3 others (Environment and Land Case E064 of 2024) [2025] KEELC 6406 (KLR)
The bottom line
#The Environment and Land Court froze all dealings over a disputed Kwale property, penalised parties who sued in two courts at once, and left demolition decisions for trial.
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 application dated 10th March 2025 is merited for grant of the status quo orders sought
- 2.Whether the Plaintiff has met the threshold for grant of the injunctive orders sought in the application dated 9th October 2024
- 3.Who bears the costs of both applications?
Key legal issues
#Whether the 2nd Defendant's application dated 10th March 2025 for status quo ante orders was merited
Dismissed; the 2nd and 3rd Defendants were already litigating a similar suit over the same subject matter before the lower court (Kwale MC ELC/E055/2024), and entertaining their further applications offended the sub-judice doctrine and amounted to forum shopping and abuse of court process.
The court noted the existence of a similar suit between the same parties over the same property in the subordinate court, in which the Defendants had already obtained injunctive orders. Relying on Section 6 of the Civil Procedure Act and the Supreme Court's exposition of the sub-judice rule in KNCHR v Attorney General, the court held that indulging the Defendants further would violate sub-judice principles, amount to proliferation and convolution of suits and abuse of judicial process, and their conduct could not be imposed on the Plaintiff.
Whether the Plaintiff met the Giella v Cassman Brown threshold for a temporary injunction
Yes; a prima facie case was established given the competing titles, irreparable harm was demonstrated by ongoing construction on the suit property, and the balance of convenience tilted in the Plaintiff's favour; a temporary injunction issued restraining the Defendants from interfering with the suit property pending trial.
Applying the tripartite Giella test and Order 40 Rule 1 of the Civil Procedure Rules, the court found the Plaintiff held a title predating the Respondents' title and that ownership and validity of the competing titles were contested matters for trial, satisfying the prima facie threshold. Photographs and the 3rd Respondent's admission of Kshs 8 million in construction showed the property was in danger of being wasted or alienated, establishing irreparable harm and tilting the balance of convenience toward preservation of the substratum of the suit.
Costs of both applications
Although costs ordinarily follow the event under Section 27 of the Civil Procedure Act, the court directed that costs of both applications be in the cause given the circumstances of the case.
The court restated the settled principle that costs follow the event unless the court for good reason otherwise directs, citing Section 27 of the Civil Procedure Act and the Rosemary Wairimu Munene authority. In the exercise of its discretion, and considering the interlocutory posture of the matter, it found good reason to order costs in the cause rather than awarding them to either party immediately.
Legal principles established
#- Where a party has already instituted a similar suit over the same subject matter and between the same parties in a lower court, granting that party further audience in a parallel matter offends the sub-judice doctrine under Section 6 of the Civil Procedure Act and amounts to abuse of court process
- Where rival titles exist over land, a prima facie case for injunction is established by showing a right apparently infringed requiring rebuttal; the court does not conduct a mini-trial at the interlocutory stage
- Ongoing development on disputed land at an interlocutory stage establishes the risk of irreparable harm and justifies preservation of the property as the substratum of the suit
Court orders
#- 1.Temporary injunction issued against the 1st, 2nd and 3rd Defendants/Respondents, their agents, servants and all those claiming under them from entering, accessing, leasing, selling, transferring or in any other way interfering with land Title No. Kwale/Galu Kinondo/27 pending the hearing and determination of the suit
- 2.Notice of Motion application dated 10th March 2025 dismissed for lack of merit
- 3.By consensus of the parties, Notice of Motion application dated 22nd April 2025 allowing joinder of the Directorate of Criminal Investigations (DCI) Headquarters as an interested party allowed as prayed and orders granted accordingly
- 4.Mention on 12th November 2025 for a Pre-Trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010; hearing of the matter on 24th February 2026
- 5.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 40(1) and 40(6) of the Constitution of Kenya 2010, Section 13(5) of the Environment and Land Court Act and Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act
Relief refused
#Order directing the 2nd and 3rd Defendants to demolish the construction/developments already done on land Title No. Kwale/Galu Kinondo/27 (prayer d of the application dated 9th October 2024)
The court declined to grant orders of finality at the interlocutory stage; demolition orders can only suffice after both parties have been heard at full trial
Prayer (b) of the 9th October 2024 application - injunction pending hearing and determination of the application itself (marked spent/overtaken)
The court granted the injunction only pending hearing and determination of the suit, not the application
Costs
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.
That this Honourable Court be and is hereby pleased to issue an order of temporary injunction against the 1st, 2nd and 3rd Defendants/Respondents, their agents, servants and all those claiming under them from entering, accessing, leasing, selling, transferring or in any other way interfering with land Title No. Kwale/Galu Kinondo/27 pending the hearing and determination of this suit.
That the Notice of Motion application dated 10th March 2025 be and is hereby dismissed for lack in merit.
That by the consensus of the parties herein the Notice of Motion application dated 22nd April, 2025 to have the Director of Criminal Investigation (DCI) headquarters be joined as parties in this matter be and is hereby allowed as prayed and the orders sought granted accordingly.
That costs of both applications shall be in the cause.
From the foregoing it is safe to state that the 2nd and 3rd Respondents are forum shopping or rather abusing the process of the court in engaging in filing of multiple applications bearing in mind that the lower court suit is still alive.
Before penning of, I wish to point out that at this point, the court cannot grant orders that may seem to have some kind of finality in their nature as the suit is still at an interlocutory stage parties having not been heard.
It is imperative of the court to protect the plaintifi from lose and to further preserve the suit property pending the hearing and determination of the suit.
Issues in the judgment
#Discrepancy in the purchase price of the suit property as between the Defendants' pleadings and the Plaintiff's pleadings/submissions: the Replying Affidavit of the 3rd Defendant records a consideration of Kshs 30,000,000/- while the 2nd Defendant's Supporting Affidavit and submissions state Kshs 119,000,000/-
Internal date contradiction in the Plaintiff's Supplementary Affidavit as recorded: described as dated 9th October 2024 yet filed 'in a rejoinder to the averments raised in the 2nd and 3rd Defendants' Replying Afidavit sworn on 12th November 2024'; elsewhere the same affidavit is described as sworn on 27th November 2024
The coram shows Mr. Bulowa Advocate appearing for the 1st Defendant, yet the judgment elsewhere records that the 1st Defendant never entered appearance despite substituted service
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Baobab Diagnostics Limited v Wanja & 3 others (Environment and Land Case E064 of 2024) [2025] KEELC 6406 (KLR)", Case Analysis (2025). ELC Case (Kwale) – applications dated 9th October 2024, 10th March 2025 and 22nd April 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6406/eng@2025-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.