Carnation Properties Management Company Limited & 2 others v Carnation Properties Limited & 2 others (Land Case E122 of 2025) [2026] KEELC 746 (KLR)
The bottom line
#Kenya's Environment and Land Court stopped an auction of land containing sub-leases the charge did not cover, confirming the court can protect third-party land interests.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to hear and determine the suit and the applications herein
- 2.Whether the suit is sub judice within the meaning of section 6 of the Civil Procedure Act
- 3.Whether the Plaintiffs have established a basis for the grant of interlocutory injunctive relief as sought in the Notice of Motion dated 24th March 2025
- 4.What orders ought to issue on costs
Key legal issues
#Jurisdiction of the Environment and Land Court
The Court has jurisdiction because the dominant issue is the protection of registered third-party proprietary interests in land, not the recovery of loans or enforcement of the charge as between lender and borrower.
The Court must interrogate the pleadings and reliefs to identify the dominant issue. The Plaintiffs are not the chargor, do not challenge the charge's validity, and do not contest indebtedness. Their complaint is that the entire parcel was advertised for sale despite express exclusion of their registered sub-leases and reversionary interest from the charge instruments. Such questions directly implicate interests in land within Article 162(2)(b) and section 13 of the ELC Act.
Sub judice under section 6 of the Civil Procedure Act
The plea of sub judice fails because the Plaintiffs were not parties to the earlier High Court proceedings and the issues are distinct.
Section 6 requires the same matter directly and substantially in issue between the same parties or those litigating under the same title, in a pending suit before a competent court. The earlier proceedings concerned loan facilities and the statutory power of sale as between chargor and chargee; the present suit arose from the advertisement of the entire parcel, imperilling the Plaintiffs' proprietary interests, which were not in issue in the earlier suits.
Interlocutory injunction
The Plaintiffs established a prima facie case, irreparable harm and balance of convenience favouring preservation of the status quo; a temporary injunction issued limited to their registered interests.
The registered interests predate and are expressly excluded from the charges, yet the entire parcel was advertised without delineation, raising a legitimate question warranting trial. Land and registered proprietary interests are unique; once sold, the substratum of the suit would be irreversibly altered. The balance of convenience favours preserving the status quo pending determination.
Legal principles established
#- Jurisdiction is determined by the dominant issue in dispute, ascertained from the pleadings and reliefs sought; disputes concerning protection of registered third-party proprietary interests in land fall within the ELC's jurisdiction even where a charge and loan underlie the dispute.
- For sub judice to apply, the matter must be directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title, pending before a competent court.
- The Nguruman/Giella principles for interlocutory injunctions are sequential, not conjunctive.
Court orders
#- 1.A temporary injunction issued restraining the Defendants, their agents, servants, auctioneers or any other persons acting under their authority, from advertising, offering for sale, selling by public auction or otherwise disposing of Land Reference Number 1870/IX/189, insofar as such sale affects or includes the Plaintiffs' registered sub-leases and reversionary interests, pending the hearing and determination of the suit
- 2.The 2nd and 3rd Defendants' Notice of Motion dated 16th September 2025 seeking to strike out the suit is dismissed
- 3.Costs of both applications shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act
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 Plaintiffs' Notice of Motion dated 24th March 2025 is hereby allowed to the extent that a temporary injunction is issued restraining the Defendants, whether by themselves, their agents, servants, auctioneers or any other persons acting under their authority, from advertising, offering for sale, selling by public auction or otherwise howsoever disposing of Land Reference Number 1870/IX/189, insofar as such sale affects or includes the Plaintiffs' registered sub-leases and reversionary interests, pending the hearing and determination of the suit.
The 2nd and 3rd Defendants' Notice of Motion dated 16th September 2025 seeking to strike out the suit is hereby dismissed.
Costs of both applications shall be in the cause.
The dispute before the Court therefore does not concern accounts, indebtedness, or the enforcement of the banker–customer relationship. Rather, it concerns the protection of registered third-party proprietary interests in land and the legality of actions taken in relation to land subject to those interests.
First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by damages; and if the court is in doubt, then it can decide the application on a balance of convenience.
Issues in the judgment
#The case title, case number and neutral citation are not stated in the provided extract of the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Carnation Properties Management Company Limited & 2 others v Carnation Properties Limited & 2 others (Land Case E122 of 2025) [2026] KEELC 746 (KLR)", Case Analysis (2026). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/746/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.