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ELCDismissedELCLJR E073 OF 2025

Ngungi & another v Kanyi & 5 others (Environment and Land Judicial Review Case E073 of 2025) [2026] KEELC 5193 (KLR)

Environment and Land Court
6 August 2026
MKMOHAMMED N. KULLOW
1,019 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that similar-looking land cases can run in parallel when they raise different issues and seek different remedies.

What this practically means

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Executive summary

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This is a ruling on the Applicant's Notice of Motion dated 7th October 2025 seeking a stay of judicial review proceedings instituted by the Ex-parte Applicants on grounds of sub judice, contending that the suit offended Section 6 of the Civil Procedure Act by duplicating ELC OS Cause 029 of 2025 and ELC No 226 of 2025. The Applicant argued the court thus lacked jurisdiction. The Ex-parte Applicants, through a replying affidavit of Joel Kanyi Kamau, opposed, asserting the causes of action differed: trespass in ELC No 226 of 2025, adverse possession in ELCOS E029 of 2025, and a challenge in this cause to the Respondents' decision of 7th August 2025 permitting demolition of structures on the property. The Applicant filed no submissions. Framing a single issue - whether the proceedings were sub judice under Section 6 or the court's inherent jurisdiction - the court, per Mohammed N. Kullow J, restated the purpose of the sub judice rule as preventing parallel litigation and conflicting decisions, and the test including whether a final decision in the earlier suit would operate as res judicata. Examining the pleadings, the court found the earlier suits concerned proprietary rights and declarations on irregular transfer, while this cause sought certiorari, prohibition and mandamus against the administrative decision. The issues did not substantially overlap, and a determination here would not affect the ownership questions in the other suits. The application was dismissed with costs in the cause.

Questions the Court framed

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

  1. 1.Whether the instant Judicial Review proceedings are sub judice within the meaning of Section 6 of the Civil Procedure Act, or under the Court's inherent jurisdiction

Key legal issues

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01

Whether the judicial review proceedings are sub judice to ELCOS E029 of 2025 and ELC No 226 of 2025

Holding

The proceedings are not sub judice as the issues and remedies in the matters are entirely different; the judicial review challenges the legality and procedural propriety of an administrative decision whereas the other suits concern proprietary rights and title

Reasoning

Applying Section 6 of the Civil Procedure Act, the court must find the same matter directly and substantially in issue between the same parties. A perusal of the pleadings showed the other suits raise ownership/proprietary claims and declarations on irregular transfer, while this cause seeks certiorari, prohibition and mandamus against the decision of 7th August 2025 authorising demolition. A quashing or upholding of that decision would not affect the ownership issues in the earlier suits.

p. 5

Legal principles established

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  • Sub judice under Section 6 of the Civil Procedure Act bars a court from proceeding with a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties before a court of competent jurisdiction
  • Sub judice is determined by substance rather than form

Court orders

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  1. 1.The Notice of Motion application dated 7th October 2025 is dismissed for lack of merit
  2. 2.Costs be in the cause

The bench

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

MK
majority

Wrote the judgment

Jurisdiction invoked
Section 6 of the Civil Procedure Act and the Court's inherent jurisdiction (interlocutory stay application in judicial review proceedings)

Relief refused

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Stay of the proceedings in the instant suit on grounds of sub judice

The issues in the judicial review proceedings do not substantially overlap with those in ELCOS E029 of 2025 and ELC No 226 of 2025; different issues and remedies are sought

p. 5

Costs

Costs be in the cause

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 Notice of Motion application dated 7 th October ,2025 is hereby dismissed for lack of merit.
p. 6Dismissal of stay of proceedings application
Costs be in the cause.
p. 6Costs order
A perusal of the pleadings shows that the judicial review proceedings and the proceedings in ELCOS E029 of 2025 and ELC No 226 of 2025 raise totally different issues and seek different remedies.
p. 5Test for sub judice - different issues and remedies

Issues in the judgment

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minor

Typographical/grammatical errors in the judgment text

minor

Applicant filed no submissions; date discrepancy in Ex-parte Applicants' submissions (dated 9th July 2026 in a ruling of 6th August 2026, while the motion is dated 7th October 2025)

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, "Ngungi & another v Kanyi & 5 others (Environment and Land Judicial Review Case E073 of 2025) [2026] KEELC 5193 (KLR)", Case Analysis (2026). ELCLJR E073 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5193/eng@2026-08-06

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