Philemon Aloo Oniala, Mike Kipkorir Kipkwet Binot Daniel Onginga Ogweno t/a Wilmade Investments v Njiru Housing Development Limited; Bondeni Maili Saba Jua Kali Association (Interested Party) (Environment and Land Case E648 of 2025) [2026] KEELC 593 (KLR)
The bottom line
#The Environment and Land Court set aside conservatory orders obtained without disclosing an earlier pending suit over the same Ruai property, but froze construction.
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 suit offends the provisions of section 6 of the Civil Procedure Act (sub judice)
- 2.Whether there was non-disclosure of material facts in obtaining the conservatory orders
- 3.Whether the application was merited
Key legal issues
#Whether an injunction issued on non-disclosure of a parallel pending suit should be set aside
Yes; the plaintiffs obtained the conservatory orders without disclosing ELCLC No. E549 of 2025, a pending suit over the same property and cause of action, which was material non-disclosure
The court applied Order 40 Rule 7 and case law holding that an injunction obtained by concealment of material facts will be discharged. The plaintiffs' failure to disclose that Justice Mbogo had declined similar injunctive orders in ELCLC E549 of 2025 was not controverted. Since the same proprietary dispute was pending in the earlier suit, the orders were obtained misleadingly and fell to be discharged.
Whether the doctrine of sub judice under section 6 of the Civil Procedure Act applies
Yes; ELCLC No. 549 of 2025 seeks determination of proprietary rights over the suit property on the same cause of action and is still active
Citing section 6 of the Civil Procedure Act and the Supreme Court's decision in Kenya National Commission on Human Rights v Attorney General, the court held that where two suits over the same subject matter between parties claiming under the same title are pending, the later suit should be stayed. The existence of the earlier active suit rendered this matter sub judice and was a material fact concealed from the court.
Legal principles established
#- An interlocutory injunction obtained by concealment of material facts will be discharged on the application of the aggrieved party
- The sub judice rule bars a court from trying a matter directly and substantially in issue in a previously instituted suit between the same parties litigating under the same title
Court orders
#- 1.The conservatory orders issued on 22nd December 2025 and 20th January 2026 be and are hereby set aside and/or discharged forthwith
- 2.Pending the hearing and determination of the suit, no construction works and/or new developments on LR No. 10905 Ruai Nairobi LR No. 43/3 (Survey Plan No. 130014, Grant No. LR 4348, LR No. 43/37-69, now Nairobi Block 210/2-34)
- 3.The OCS of Ruai Police Station to ensure compliance
- 4.Costs of the application to be borne by the plaintiffs/respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction and Order 40 Rule 7 of the Civil Procedure Rules (application to discharge, vary or set aside an injunction)
Relief refused
#Stay of the ex-parte orders pending hearing of the application
Overtaken by events as the orders were ultimately set aside on the merits; the court granted the substantive review instead
Review only, in the alternative, directing no construction works as the sole variation
The court instead discharged the injunction altogether while maintaining a standalone prohibition on construction
Costs
Costs of the application to be borne by the plaintiff/respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Conservatory orders issued on the 22nd December 2025 and 20th January 2026 be and are hereby set aside and/or discharged forthwith
Pending the hearing and determination of this suit there should be no construction works and/or new developments on Land Reference Number 10905 Ruai Nairobi LR. No. 43/3 delineated by land Survey Plan Number 130014 (Grant No. LR. 4348), LR. No.43/37- 69 and converted now to Nairobi Block 210/2 - 34
It is settled law that if an interlocutory injunction has been obtained by means of misrepresentation or concealment of material facts, the same will on the application of the party aggrieved be discharged
A party that seeks to invoke the doctrine of sub judice must therefore establish that; there is more than one suit over the same subject matter, that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives
I hold the view that the discretion under Order 40 Rule 7 ought to be sparingly used so as to avoid a situation where it would appear as if the same is being used as a tool for appeal
Issues in the judgment
#The replying affidavit of the plaintiffs is described as sworn on 3rd January 2026, which predates the notice of motion dated 26th January 2026 that it purports to respond to; possibly a typographical date error
The judgment inconsistently refers to the earlier ownership determination as ELC 1235 OF 2015 and later as ELC 115 OF 2013 in the plaintiffs' affidavit content
The judgment refers to a 17th December 2025 ruling whose order was not attached; the fact of refusal of injunction in the earlier suit rests on inference from the filing of this suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philemon Aloo Oniala, Mike Kipkorir Kipkwet Binot Daniel Onginga Ogweno t/a Wilmade Investments v Njiru Housing Development Limited; Bondeni Maili Saba Jua Kali Association (Interested Party) (Environment and Land Case E648 of 2025) [2026] KEELC 593 (KLR)", Case Analysis (2026). ELC (Nairobi) — Notice of Motion dated 26th January 2026 (suit over Land Reference Number 10905 Ruai). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/593/eng@2026-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.