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ELCDismissedNotice of Motion dated 23rd February 2026 (ELC suit, Malindi)

Ashfam Enterprises Ltd & another v Ngalla & 3 others (Environment and Land Case 26 of 2025) [2026] KEELC 3408 (KLR)

Environment and Land Court
19 May 2026
1,724 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Malindi court refused to stop SARICODO members working near the Sabaki River, ruling that Kenyan environmental cases should not be blocked on technicalities.

What this practically means

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Executive summary

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The plaintiffs sought a temporary injunction restraining the defendants, said to be members of the Sabaki River Conservation and Development Organization (SARICODO), from trespassing on, subdividing, building upon or dealing with property referenced Portion Number 1872 originating from plot 793/3. The application was supported by the affidavit of the second plaintiff, who asserted registered ownership and alleged the defendants were unlawfully constructing on the land. In reply, Joseph Mwandenge Mangi deponed that the defendants were sued as members of a CBO devoted to conservation of the Sabaki River estuary since 2006, and exhibited a Geospatial Assessment Report indicating that a significant portion of parcel 793, the predecessor of the suit plot, was historically under river water within the riparian zone. The plaintiffs filed a preliminary objection contending the deponent lacked locus standi and the affidavit was hearsay. The court dismissed the objection, holding that guided by the Constitution 2010, the Environmental Management and Coordination Act, global environmental litigation trends, the precautionary principle and the in dubio pro natura principle, environmental litigation should not be defeated on a locus standi technicality, particularly where environmental institutions may have relevant information. Turning to the injunction, the court found the plaintiffs guilty of material non-disclosure, having failed to join proper parties or disclose the riparian character of the land, and noted the defendants' activities appeared conservational. The application was dismissed with costs to the defendants, and the suit was set down for pretrial directions on 19th June 2026.

Questions the Court framed

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

  1. 1.Whether the replying affidavit sworn by a non-party should be struck out on the preliminary objection
  2. 2.Whether a temporary injunction should issue restraining the defendants from activities on the suit property

Key legal issues

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01

Locus standi of a non-party deponent to a replying affidavit in environmental litigation

Holding

The preliminary objection was dismissed; the court refused to strike out the affidavit given environmental conservation trends and the precautionary and in dubio pro natura principles

Reasoning

The court noted Kenya's ratification of international environmental instruments and municipal statutes such as EMCA, the Water Act and the Forests Act. Guided by global environmental litigation trends and the Constitution 2010, courts must respond expeditiously to conservation issues under the precautionary principle and reject locus standi challenges to environmental litigation. Striking out the affidavit would be out of tune where prima facie evidence shows environmental institutions had dealt with the matter.

p. 4
02

Whether a temporary injunction should issue over the suit property

Holding

Dismissed; the plaintiffs failed to disclose critical information on the Sabaki River estuary ecosystem and to join proper parties, and the defendants' activities appear geared to conservation

Reasoning

The replying affidavit revealed that the suit plot originated from parcel 793, part of which was historically under river water within the riparian zone. The plaintiffs omitted this and failed to join proper parties. The defendants' CBO activities were classified as conservational, and the court found no ground to bar them absent proof they were deleterious to the ecosystem.

p. 4

Legal principles established

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  • Environmental litigation in Kenya should not be defeated on technical objections of locus standi; where in doubt the court rules in favour of protecting the environment (in dubio pro natura)

Court orders

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  1. 1.The preliminary objection of the plaintiff is summarily dismissed with costs
  2. 2.The Notice of Motion dated 23rd February 2026 is dismissed with costs to the defendants
  3. 3.The suit shall be mentioned on 19th June 2026 for pretrial directions

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Not expressly stated; original jurisdiction of the Environment and Land Court over land and environmental disputes

Relief refused

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Temporary injunction restraining the defendants from trespassing on, subdividing, building upon or dealing with the suit property

The application lacked merit; the plaintiffs were guilty of material non-disclosure, failed to join proper parties, and the defendants' activities appear conservational

p. 4

Costs

Preliminary objection dismissed with costs; application dismissed with costs to the defendants

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 plaintifi is guilty of material non-disclosure, and I dismiss the same with costs to the defendants
p. 4dismissal of injunction application for material non-disclosure
to reject any challenge to environmental litigation premised on lack of locus standi, and to where in doubt rule in favour of protecting the environment - the in dubio pro natura principle
p. 4locus standi and in dubio pro natura principle
it behoves this court to examine this matter not as an ordinary land dispute but as a suit that may eventually raise ecological concerns pertinent to the Sabaki Estuary
p. 4characterisation of the suit as an environmental dispute
The present suit shall be mentioned on 19th June 2026 for pretrial directions.
p. 4final orders - directions

Issues in the judgment

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minor

Suit property description inconsistent within the application ('Orig. No. 739/3' versus 'Orign. No. 793/3')

minor

Name of the organization spelled inconsistently (SARICODO and SARIKODO)

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, "Ashfam Enterprises Ltd & another v Ngalla & 3 others (Environment and Land Case 26 of 2025) [2026] KEELC 3408 (KLR)", Case Analysis (2026). Notice of Motion dated 23rd February 2026 (ELC suit, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3408/eng@2026-05-19

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