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ELCDismissedELC Petition No. E008 of 2026· [2026] KEELC 4596 (KLR)

Haji v Khansam Apartments and Management Company Ltd & 3 others (Environment and Land Petition E008 of 2026) [2026] KEELC 4596 (KLR)

Environment and Land Court
16 July 2026
BAB. A. Akello
2,864 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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An Mombasa court ruled one ELC judge cannot stop another judge's judgment, so Khansam's case judgment will proceed as planned.

What this practically means

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Executive summary

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In this ruling of the Environment and Land Court at Mombasa, the Applicant, Abdikhani Abdi Rahman Haji, a non-party to Mombasa ELC Petition No. E001 of 2026 (a developer's petition by Khansam Apartments and Management Co. Ltd against the County Government of Mombasa and Charles Changawa, scheduled for judgment on 16th July 2026), sought by Notice of Motion dated 8th June 2026 to have the proceedings placed before Ombwayo, J., to arrest, stay or hold that judgment in abeyance, and to have both petitions consolidated and heard by the same judge. The 1st Respondent opposed, contending the petitions were not identical, that the Applicant was a stranger to E001, and that consolidation could not be used by a non-party to arrest a judgment. The National Construction Authority likewise opposed, noting it had issued a compliance certificate for the disputed project. The court framed three issues: jurisdiction to arrest the E001 judgment; whether to order joint hearing and consolidation; and costs. On the first, it held that ELC judges are peers of equal status with no power to command one another, following the Supreme Court's decisions in Kenya Hotel Properties and Republic v Karisa Chengo, and declined Prayer (iii) for want of jurisdiction. On the second, although Rule 17 of the Mutunga Rules confers consolidation power, the court declined it on four cumulative grounds: the hearing in E001 was complete; the parties differ; the causes of action differ (Articles 40 and 47 versus Articles 42 and 70); and the application was a collateral attack and forum shopping by a self-confessed stranger, violating audi alteram partem as against unserved parties in E001. The motion was dismissed in its entirety, directions were given for the prosecution of E008, and costs were awarded to the 1st Respondent against the Applicant, to be taxed if not agreed.

Key legal issues

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01

Jurisdiction of one ELC judge to arrest or stay the judgment of a peer judge

Holding

The Court has no jurisdiction; judges of the ELC are of equal status and neither is empowered to command the other.

Reasoning

The ELC is a specialised superior court under Article 162(2)(b) and Section 4 of the ELC Act. Every ELC judge has the status of a High Court judge. Between Ombwayo, J. and the presiding judge there is no superior and no subordinate. The Supreme Court in Kenya Hotel Properties and Republic v Karisa Chengo confirms equal-status courts have no appellate or supervisory jurisdiction over one another; such an order would be a nullity.

02

Whether the two petitions should be consolidated and heard by the same judge

Holding

Consolidation declined on four cumulative grounds: stage of proceedings, differing parties, differing causes of action, and the application being a collateral attack/forum shopping.

Reasoning

Rule 17 of the Mutunga Rules permits consolidation, but the discretion is exercised on principle, not sentiment. E001 was fully heard with judgment due; the parties and causes of action differ materially (a developer's petition vs a neighbour's environmental petition); granting orders would bind persons not served or heard (audi alteram partem); and the motion was in substance a collateral attack by a self-confessed stranger to E001, amounting to forum shopping.

p. 8
03

Costs of the application

Holding

Costs follow the event; the Applicant pays the 1st Respondent's costs.

Reasoning

The 1st Respondent was put to the trouble of defending a motion at the instance of a non-party on the eve of a fully awaited judgment, and there was no reason to depart from the ordinary rule that costs follow the event.

p. 9

Legal principles established

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  • Superior courts of equal and competent jurisdiction cannot grant orders to reopen or review each other's decisions
  • A litigant cannot use consolidation at the instance of a non-party to arrest a judgment in a matter fully heard and pending delivery
  • Consolidation is a case-management tool for the front end of proceedings, not the back end

Court orders

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  1. 1.Prayer (iii), for the arrest, stay or holding in abeyance of the judgment scheduled for delivery on 16th July 2026 in Mombasa ELC Petition No. E001 of 2026, declined for want of jurisdiction
  2. 2.Prayers (ii), (iv) and (v), for the two Petitions to be heard together and by the same judge, declined on the merits
  3. 3.Nothing in the Ruling shall be construed as staying, delaying or otherwise affecting the delivery of judgment by Hon. Ombwayo, J. in Mombasa ELC Petition No. E001 of 2026
  4. 4.The respondents in the Petition granted fourteen (14) days to file and serve their responses from the date thereof
  5. 5.The petitioner at liberty to file and serve a further affidavit, if any, and file submissions within fourteen (14) days of service by the respondents, but not later than thirty (30) days from the date thereof
  6. 6.The respondent to file and serve their submissions within fourteen (14) days of service by the petitioner
  7. 7.Parties to highlight submissions on 3rd November, 2026, and Judgment to be fixed on the same day
  8. 8.The Petitioner/Applicant to bear the costs of the application, to be paid to the 1st Respondent, and to be taxed if not agreed

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3(8), 13, 17, 19, 21, 30
  • Constitution of KenyaArticles 22, 40, 42, 47, 70, 162(2)(b)
  • Environment and Land Court ActSections 4, 13(3)
  • Civil Procedure Rules, 2010Order 1 rule 10; Order 11 rule 3(2)(i)

Cases cited (8)

  • Kenya Hotel Properties Limited v Attorney General & 6 Others
    [2022] KESC 62 (KLR)
  • Republic v Karisa Chengo & 2 Others
    [2017] eKLR
  • Muiruri v Credit Bank Limited & 2 Others
    [2008] KECA 263 (KLR)
  • M'Mwarama v M'Ipwi (Sued as the Legal Representative of the Estate of Petero M'Impwe Nabea)
    [2026] KEELC 1179 (KLR)
  • The Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Rebecca Muriuki t/a Kahaari (Proposed Third Party)
    [2020] eKLR
  • Senate of the Republic of Kenya & 4 Others v Speaker of the National Assembly & Another
    [2020] eKLR
  • Kithi v The Land Registrar, Kilifi County & 3 Others
    [2023] KEELC 17227 (KLR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13(3) of the Environment and Land Court Act; Articles 22, 42 and 70 of the Constitution

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, "Haji v Khansam Apartments and Management Company Ltd & 3 others (Environment and Land Petition E008 of 2026) [2026] KEELC 4596 (KLR)", Case Analysis (2026). ELC Petition No. E008 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4596/eng@2026-07-16

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