Mara Makari Resort Limited v County Government of Narok & 2 others
The bottom line
#The Narok court kept a land dispute alive, set aside earlier orders, and paused contempt proceedings against county officials until the main application is heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff's suit is res judicata
- 2.Whether the Plaintiff's Application dated 17th February 2026, for contempt is merited
- 3.Whether the 1st and 2nd Defendants/Applicants have met the threshold for setting aside the orders of 11th March 2026, vide their Application dated 23rd March 2026
- 4.Who bears the costs of these proceedings
Key legal issues
#Whether the suit is res judicata given the earlier Makari Mara Ltd suit (Nairobi HCCC No. 163 of 2004)
Res judicata not established: the parties differ (Mara Makari Resort Ltd was incorporated in 2010 and Echotech Venture Ltd is absent), and no judgment, decree or order showing the former suit was finally determined was exhibited
Section 7 requires the same parties litigating under the same title and a former suit heard and finally determined. Mara Makari Ltd existed in 2004 while the plaintiff was incorporated in 2010; Echotech Venture Ltd was omitted; the cause of action differs. The supporting affidavit disclosed no judgment, decree or order proving final determination of the 2004 suit, so finality could not be established with certainty.
Whether the ex parte orders of 11 March 2026 should be set aside
Yes - the defendants' explanation of delay in retrieving historical documents dating to 2004 constituted sufficient cause; the application was allowed in terms of prayers 2 and 3
The court's discretion to set aside its own orders must be exercised judiciously upon sufficient cause. The defendants explained their delay by difficulty retrieving historical documents; the rhino breeding ground allegations require evidence and cross-examination and cannot be wished away. Following Patel v EA Cargo Handling and Shah v Mbogo, discretion is exercised to prevent injustice from accident, inadvertence or excusable error.
Contempt application dated 17 February 2026
Not determined on the merits; held in abeyance pending the inter-parties hearing of the 20 August 2025 application
The court reasoned that a contempt application founded on breach of the 11 March 2026 orders cannot be entertained before it decides whether those orders stand. Having set the orders aside, the contempt application was held in abeyance pending determination of the 20 August 2025 application.
Legal principles established
#- The power to set aside a court's own orders is discretionary and must be exercised judiciously upon sufficient cause being demonstrated
- Res judicata requires same parties or privies, same subject matter, and a former suit heard and finally determined
Court orders
#- 1.The Notice of Motion Application dated 23rd March 2026 is found merited and allowed in terms of prayers Nos 2 and 3
- 2.The Notice of Motion Application dated 20th August 2025, to be set down for hearing, and be determined after inter-parties hearing
- 3.The suit is found not to be Res-judicata, thus the Notice of Preliminary Objection dated 9th April 2026, by the Plaintiff is upheld
- 4.The Notice of Motion Application dated 17th February 2026, is stayed or held in abeyance awaiting the hearing and determination of the Notice of Motion Application dated 20th August 2025
- 5.Costs of the applications is awarded to the Plaintiff/Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 10, 159 and 162(2)(b) of the Constitution; Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act; Orders 40 and 51 of the Civil Procedure Rules
Relief refused
#Plaintiff's application to cite officials and institutions for contempt
The contempt application could not be determined before the court decided whether to set aside the underlying orders of 11 March 2026; it was stayed pending the inter-parties hearing
Costs
Costs of the applications is awarded to the Plaintiff/Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Therefore, the court finds and holds that the 1st and 2nd Defendants have not established that the Plaintiff's instant case is res judicata.
Having a similar name does not mean parties are the same. Mara Makari Ltd was in existence in 2004, while Mara Makari Resort Ltd was incorporated in 2010.
The Notice of Motion Application dated 23rd March 2026, is found merited and allowed in terms of prayers Nos 2 and 3.
The Notice of Motion Application dated 17th February 2026, is stayed or held in abeyance awaiting the hearing and determination of the Notice of Motion Application dated 20th August 2025.
Issues in the judgment
#Defendants' application inconsistently dated '23rd March 2025' and '23rd March 2026'
Second defendant named inconsistently ('Patrick Ole Ntutu' and 'Patrick Ole Ntuntu')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mara Makari Resort Limited v County Government of Narok & 2 others", Case Analysis (2026). Environment and Land Case E028 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5704/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.