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ELCOtherNotice of Motion dated 3rd December 2025 (Plaintiff's application)

Gatacha (Suing as a Lawful Attorney of Peter Njonjo Kibera & Agnes Wairimu Kibera Vide Special Power of Attorney Dated 11th October 2011) v Nairobi City County & 4 others (Environment and Land Case E610 of 2025) [2026] KEELC 4396 (KLR)

Environment and Land Court
13 July 2026
2,619 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land suit as res judicata because the Court of Appeal had already settled ownership of the property.

What this practically means

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Executive summary

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The Plaintiff, acting as Attorney (under Power of Attorney) of Peter Njonjo Kibera and Agnes Wairimu Njonjo, moved the Court by Notice of Motion dated 3rd December 2025 seeking a temporary injunction restraining the Defendants from entering, excavating on, or constructing on Plot No. 239 Umoja Innercore Sector V Infill, pending determination of the suit. He alleged his principals purchased the property from the 2nd Interested Party in 2010, and that despite a pending appeal (Civil Appeal No. 429 of 2019), the 1st and 2nd Defendants entered the land in November 2025 to lay sewerage and water pipes, allegedly at the instigation of the 3rd Defendant, the area MCA. The 1st Defendant contended a Letter of Allotment confers no title and the land remains unalienated public land; the 2nd Defendant said its works were lawful utility infrastructure pursuant to approved plans; the 1st Interested Party raised a preliminary objection on res judicata (Section 7, Civil Procedure Act) and locus standi. Taking judicial notice that on 10th July 2026 the Court of Appeal upheld the judgment in Nairobi ELC Case No. 384 of 2020 vesting ownership in the 1st Interested Party, the Court (Ochieng J) held the Plaintiff had no prima facie case and declined to consider the remaining Giella limbs per Nguruman. The Court found the suit res judicata both the ELC suit and the appeal, upheld the preliminary objection, dismissed the application, struck out the Plaint, and awarded costs to the 1st and 2nd Defendants and the 1st Interested Party only.

Questions the Court framed

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

  1. 1.Whether the Plaintiff is entitled to orders of interlocutory injunction restraining the Defendants from the suit property
  2. 2.Whether the 1st Interested Party's Notice of Preliminary Objection is merited

Key legal issues

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01

Whether the Plaintiff established a prima facie case for an interlocutory injunction

Holding

No prima facie case was established since the Court of Appeal had upheld the finding that the 1st Interested Party owns the suit property

Reasoning

The plaintiff claimed through a Power of Attorney over Plot No. 239 Umoja Innercore Sector V Infill. Judicial notice was taken of the Court of Appeal judgment of 10th July 2026 in Civil Appeal No. 429 of 2019 upholding the ELC decision that the property belongs to the 1st Interested Party. On that basis alone the plaintiff could not demonstrate a prima facie case with a likelihood of success, and per Nguruman the court did not consider the remaining Giella limbs.

p. 4
02

Whether the suit is barred by res judicata under Section 7 of the Civil Procedure Act

Holding

Yes. The suit is res judicata ELC Case No. 384 of 2020 and Civil Appeal No. 429 of 2019

Reasoning

The plaintiff's principals were parties to the prior suit and appeal; ownership of the same property was directly and substantially in issue and was decided by two competent courts in favour of the 1st Interested Party. The plaintiff, litigating under the same title via a Power of Attorney, merely added a claim for compensation; introducing new defendants could not escape the jurisdictional bar.

p. 5
03

Whether the 1st Interested Party's preliminary objection was a true point of law

Holding

The court found the preliminary objection merited and struck out the Plaint

Reasoning

Applying Oraro v Mbaja, the court treated the res judicata objection as a pure point of law requiring no evidence, since the prior determinations by the ELC and the Court of Appeal conclusively disposed of the ownership question.

p. 5

Legal principles established

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  • Where a party fails to establish a prima facie case, the court need not consider the other two Giella limbs
  • A matter already directly and substantially in issue between the same parties or those claiming under them, and heard and finally decided by a competent court, is res judicata

Court orders

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  1. 1.Dismissed the Plaintiff's Notice of Motion application dated 3rd December 2025
  2. 2.Struck out the Plaint
  3. 3.Awarded costs to the 1st and 2nd Defendants and the 1st Interested Party only

The bench

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

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; relief sought under the Civil Procedure Rules (temporary injunction)

Relief refused

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Temporary injunction restraining the Defendants from entering, alienating, occupying, excavating or constructing on Plot No. 239 Umoja Innercore Sector V Infill

The Plaintiff failed to establish a prima facie case, ownership having been upheld in favour of the 1st Interested Party by the Court of Appeal

p. 4

Continuation of the suit

The suit is res judicata Nairobi ELC Case No. 384 of 2020 and Civil Appeal No. 429 of 2019

p. 5

Costs

Costs awarded to the 1st and 2nd Defendants including the 1st Interested Party only

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.

on this point alone, I find that the Plaintifi has not demonstrated a prima facie case to warrant the orders of interlocutory injunction as sought against the Defendants and Interested Parties
p. 4prima facie case for interlocutory injunction
I find that this suit is indeed res judicata Nairobi ELC Case No. 384 of 2020 and Civil Appeal No. 429 of 2019
p. 5res judicata
I however find the 1st Interested Party's Notice of Preliminary Objection merited and will proceed to strike out the Plaint and award costs to the 1st and 2nd Defendants including the 1st Interested Party only
p. 5final orders - dismissal of application, striking out of Plaint and costs

Issues in the judgment

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minor

Internal inconsistency in the year of the prior ELC suit - judgment alternately refers to ELC Case No. 384 of 2020 and ELC Case No. 384 of 2010

material

Internal chronology contradiction: judgment dated 20th June 2019 in a suit filed as No. 384 of 2020, and judicial notice taken of a Court of Appeal judgment of 10th July 2026 in a judgment dated 13th July 2026 while the application before court was dated November/December 2025 describing the appeal as pending

minor

Inconsistent spelling of the Judge who decided the prior suit - 'Okong'o' and 'Okongo'

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, "Gatacha (Suing as a Lawful Attorney of Peter Njonjo Kibera & Agnes Wairimu Kibera Vide Special Power of Attorney Dated 11th October 2011) v Nairobi City County & 4 others (Environment and Land Case E610 of 2025) [2026] KEELC 4396 (KLR)", Case Analysis (2026). Notice of Motion dated 3rd December 2025 (Plaintiff's application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4396/eng@2026-07-13

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