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ELCPartially AllowedELC Case at Kwale (Originating Summons for adverse possession; Notice of Motion dated 9th December 2025 and Notice of Motion dated 4th February 2026)· [2026] KEELC 2749 (KLR)

Nrandzaka v Josephat & 3 others (Enviromental and Land Originating Summons E025 of 2025) [2026] KEELC 2749 (KLR)

Environment and Land Court
30 April 2026
16,899 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~68 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kwale protected a woman's adverse possession claim over Diani land, blocking eviction until her case is fully heard.

What this practically means

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Executive summary

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The Environment and Land Court at Kwale (Naikuni J) determined two competing interlocutory applications in an adverse possession suit over Land Parcel No. Kwale/Diani/SS/295 and its subdivisions. The Plaintiff, who claimed open, continuous and exclusive occupation since about 1974, sought a temporary injunction and an inhibition order under Section 68 of the Land Registration Act pending trial of her Originating Summons for adverse possession. The Defendants, registered proprietors of the subdivided parcels, sought to strike out the suit as res judicata, alleging material non-disclosure of prior litigation (Kwale CMCC No. 324 of 2006, Kwale ELC Appeal No. E003 of 2021 and Mombasa Court of Appeal Civil Appeal No. E054 of 2023, which had allowed their appeal on vacant possession), perjury, want of a verifying affidavit and abuse of process. The court framed four issues. It held that the elements of res judicata are conjunctive and that adverse possession was never directly and substantially pleaded, framed or determined in the prior litigation, which concerned vacant possession; the suit was therefore not barred. The Plaintiff was found to have established a prima facie case with probability of success, irreparable harm (loss of home, livelihood and desecration of family graves) and the balance of convenience, warranting an injunction. Perjury allegations could not be summarily determined in civil proceedings; the want of a verifying affidavit was a curable defect under Article 159(2)(d). The Defendants' application was dismissed with costs; the Plaintiff's application was allowed with costs in the cause. A temporary injunction and inhibition order were issued, with the OCS Diani directed to ensure compliance, and the matter set down for pre-trial conference and hearing in 2026.

Key legal issues

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01

Res judicata and adverse possession

Holding

The Plaintiff's adverse possession claim is not barred by res judicata because adverse possession was never directly and substantially in issue in the prior litigation, which concerned vacant possession and registered ownership

Reasoning

The court applied Section 7 of the Civil Procedure Act and the conjunctive elements of res judicata from IEBC v Maina Kiai, Communications Commission of Kenya v Royal Media Services and John Florence Maritime Services. While parties and property were the same, the cause of action in the prior suits was vacant possession. Adverse possession is a statutory claim requiring specific pleading and proof, which was absent in the earlier proceedings.

p. 25
02

Threshold for interlocutory injunction

Holding

The Plaintiff satisfied all three Giella v Cassman Brown limbs: prima facie case with probability of success, irreparable harm (desecration of graves, loss of home and livelihood), and balance of convenience favouring preservation of her occupation

Reasoning

Applying Giella as sequenced in Nguruman, the court found the Plaintiff's occupation since 1974 open, continuous and exclusive, conferring an apparently infringed right. Eviction would destroy residence and livelihood and desecrate graves, harm incapable of monetary compensation. The balance of convenience favours preserving status quo pending trial.

p. 30
03

Striking out for material non-disclosure, perjury and procedural defects

Holding

The Defendants' application was dismissed; the non-disclosure was not material since adverse possession was never adjudicated, perjury cannot be determined summarily in civil proceedings, and want of a verifying affidavit is curable

Reasoning

The court applied Bahadurali Ebrahim Shamji on the duty of full disclosure but held the omitted facts did not relate to the distinct cause of action. On perjury it invoked Scope Telematics and the criminal standard. On procedure it applied Article 159(2)(d) and Shashikant C. Patel, holding the defect curable, and applied the D.T. Dobie standard against summary dismissal.

p. 32
04

Costs

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act; the Defendants bear costs of their failed application, while costs of the Plaintiff's successful application abide the outcome of the main suit

Reasoning

Relying on Section 27(1) and the principle that costs follow the event, the court held the successful Plaintiff entitled to costs of the Defendants' unsuccessful application, but deferred costs of her own interlocutory application to the cause so as not to prejudge the substantive claim.

p. 32

Legal principles established

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  • All elements of res judicata must be satisfied conjunctively; failure to meet even one is fatal to the plea
  • Res judicata applies only to issues that were distinctly put in issue and finally determined; matters arising incidentally or not pleaded cannot found the plea
  • Perjury allegations cannot be summarily determined by a civil court at the interlocutory stage
  • Absence of a verifying affidavit is a curable defect and does not render a suit a nullity, consistent with Article 159(2)(d)

Court orders

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  1. 1.The Notice of Motion dated 4th February 2026 by the Defendants dismissed with costs to the Plaintiff
  2. 2.The Notice of Motion dated 9th December 2025 by the Plaintiff allowed
  3. 3.Temporary injunction restraining the Defendants, their servants, agents or persons acting under their instructions from evicting, alienating, transferring, leasing or otherwise interfering with Land Reference Numbers Kwale/Diani/295 and its sub-divisions pending hearing and determination of the substantive suit for adverse possession or until further orders
  4. 4.Order of inhibition under Section 68 of the Land Registration Act issued against the suit property and its sub-divisions, prohibiting any dealings whatsoever until the suit is heard and determined
  5. 5.The OCS Diani Police Station to ensure compliance with the injunctive and inhibition orders and maintain peace on the suit property
  6. 6.Mention for Pre-Trial Conference on 27th July 2026 and hearing on 27th October 2026 preferably through physical means
  7. 7.Costs of the Defendants' application dated 4th February 2026 awarded to the Plaintiff; costs of the Plaintiff's application dated 9th December 2025 in the cause
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, No. 19 of 2011

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, "Nrandzaka v Josephat & 3 others (Enviromental and Land Originating Summons E025 of 2025) [2026] KEELC 2749 (KLR)", Case Analysis (2026). ELC Case at Kwale (Originating Summons for adverse possession; Notice of Motion dated 9th December 2025 and Notice of Motion dated 4th February 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2749/eng@2026-04-30

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