https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4679

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC CAUSE NO. E007 OF 2023 (O.S.)** **REHEMA KAZUNGU BAYA ………………………..…… PLAINTIFF** **VERSUS** **KHALID OMAR AHMED ………………............. 1ST RESPONDENT** **TULIP DEVELOPMENTS LIMITED ……..……. 2ND RESPONDENT** **RULING** 1. By the Notice of Motion dated 22nd September 2025, Rehema Kazungu Baya (the Plaintiff/Applicant) prays for the following: 2. **Spent;** 3. **That leave be granted to the Firm of Muthee & Partners Advocates to come on record for the Applicant in place of Otieno Achieng & Company Advocates;** 4. **That a temporary injunction be issued restraining the 1st and 2nd Respondent by themselves, their servants and/or agents from continuing with the developments on all that parcel of land known Section 1 Mainland North/3220 Mombasa County Title No. CR. 27666 pending the hearing and determination of this application and the Originating Summons;** 5. **That in the alternative, an Order of status quo prevailing as at 24th July 2025 be issued restraining the 1st and 2nd Respondents by themselves, their servants and/or agents from continuing with any further developments on all that parcel of land known as Section 1 Mainland North/3220) Mombasa County Title No.CR. 27666 pending the hearing and determination of this Application and the Originating Summons; and** 6. **That the costs of this application be provided for.** 7. The application is supported by an Affidavit sworn by the Plaintiff and is premised on the grounds inter alia: 8. **The on 24th July 2025, the Honourable Court delivered its Ruling setting aside the judgment delivered by the Court and further enjoining Tulip Development Limited into the proceedings;** 9. **That the effect of the Ruling was to re-open the case and allow the proceedings to commence denovo;** 10. **That no directions were taken by the Applicant’s previous Advocate on record towards the fresh prosecution of the matter and the preservation of the subject matter of the suit;** 11. **That on account of the aforestated, the 2nd Respondent commenced demolition of the Applicant’s house and all the structures on the property on 29th July 2025 and is now in the process of erecting a permanent perimeter wall over the suit property;** 12. **That the Applicant was not aware of the parallel proceedings by the 2nd Respondent until after she acquired title to the property;** 13. **That in the interest of justice the Court ought to order that the file in ELC Case No. 222 of 2020 be placed before it for purposes of consolidation and to allow the issues between the parties herein to be determined to their logical conclusion; and** 14. **That the Applicant herein stands to suffer irreparable loss and damage if the Application herein is not heard and is not granted and the subject matter preserved for purposes of hearing of the main Originating Summons.** 15. Tulip Development Limited (the 2nd Defendant/Respondent) is opposed to the application. In a Replying Affidavit sworn on 2nd December 2025 by its director Zainul Iqbal, the 2nd Defendant avers that it is not true that the effect of the Ruling of 24th July 2025 was to reopen the case and allow the proceedings to commence denovo. 16. The 2nd Defendant avers that the Ruling declared the proceedings and judgment and all consequential orders a nullity and that as such, it affirmed the judgment delivered on 11th June 2024 in Mombasa ELC. Case No. 222 of 2020, which declared the 2nd Defendant as the only legal owner of the suit property. 17. The 2nd Defendant further avers that upon delivery of the Ruling on 24th July 2025, the 2nd Defendant proceeded to have the decree and warrants of eviction issued in Mombasa ELC. Case No. 222 of 2020 executed and the Plaintiff was evicted from the 2nd Defendant’s property on 29th July 2025. 18. The 2nd Defendant asserts that the Plaintiff has previously filed numerous suits claiming adverse possession against the 2nd Defendant as enumerated herein: 19. **Mombasa ELC No. 82 of 2017 (O.S) which was withdrawn on 6th April, 2017;** 20. **Mombasa ELC No. 120 of 2017 (O.S) which was dismissed on 22nd February, 2021; and** 21. **Mombasa ELC No.131 of 2020 (O.S) which was dismissed on 22nd June, 2023.** 22. I have carefully perused and considered both the application by the Plaintiff as well as the response thereto by the 2nd Defendant. I have similarly perused and considered the submissions placed before the Court by the Learned Advocates representing the 2nd Defendant. I was unable to find any submissions from the Plaintiff. 23. By her Notice of Motion application, the Plaintiff prays for leave to be granted to her current Advocate to come on record. On the main, the Plaintiff prays for a temporary order of injunction to be issued restraining the 1st and 2nd Defendants from continuing developments being carried out on a parcel of land described as Section 1 Mainland North/3220 situated in Mombasa pending the hearing and determination of the Originating Summons she has instituted herein. In the alternative, the Plaintiff prays for an order that the status quo prevailing on 24th July 2025 be maintained pending the hearing of her suit. 24. According to the Plaintiff, the effect of the orders issued by the Court on 24th July 2025 was to re-open this case and to allow the proceedings to commence denovo. It is her case that in the interest of justice, this Court ought to order that the file in ELC Case No. 222 of 2020 be placed before it for purposes of consolidation with this matter and that thereafter the Court should proceed to determine the dispute to its logical conclusion. 25. The 2nd Defendant is opposed to the application and denies that the effect of the orders issued herein on 24th July 2025 were to re-open this case and allow proceedings to commence denovo. According to the 2nd Defendant, that ruling declared the proceedings, the judgment and all consequential orders issued herein a nullity and affirmed the judgment delivered in Mombasa ELC. Case No. 222 of 2020 on 11th June 2024. 26. From the record, it is clear that this Court on 24th July 2025 issued orders in relation to the Notice of Motion dated 31st January 2025 as follows: 27. **That leave be granted to the Intended 2nd Defendant/Applicant to be joined in these proceedings as the 2nd Defendant;** 28. **That the Judgment entered herein on 16th October, 2024 and all consequential orders be set aside *ex debito justiciae*;** 29. **That the proceedings and the judgment herein and all consequential orders be declared a nullity in view of the determination already made by this court in ELC No. 222 of 2020; Tulip Development Limited-vs-Rehema Kazungu Baya, Khalid Omar Ahmed, Salim Salim Mwabahle, Joseph A. Ngetich and Abraham Birundu Nyangoto on 11th June, 2024 on the ownership of L.R No. MN/1/3220 registered as grant number CT 27666 in favour of Tulip Development Limited, the Applicants herein; and** 30. **That costs be provided for.** 31. That Ruling was the result of a Notice of Motion application dated 31st January 2025 brought by the 2nd Defendant wherein it sought to have the judgment set aside on account that the Plaintiff had obtained the same ex-parte without disclosing to the Court material facts including the fact that she had filed other suits and that there was a valid judgment decreeing the suit property to the 2nd Defendant. 32. From a perusal of the annextures attached to the 2nd Defendant’s Replying Affidavit to this application, it is evident that the Plaintiff has previously instituted various suits against the 2nd Defendant claiming to have acquired the suit property herein by way of adverse possession. She filed Mombasa ELC. No. 82 of 2017 (OS) but withdrew the same on 6th April 2017. Subsequently, the Plaintiff instituted Mombasa ELC. No. 120 of 2017 but the same was dismissed for want of prosecution by the Court on 22nd September 2021. Again, the Plaintiff instituted Mombasa ELC Case No. 131 of 2020 against the Defendant. The said suit was subsequently withdrawn. An attempt to reinstate the same via a Notice of Motion dated 26th June 2023 was rejected by the Hon. Justice Nelly Matheka on 29th November 2023 as being an abuse of the Court process. 33. It is also evident that on 4th December 2020, the 2nd Defendant did institute Mombasa ELC. Case No. 222 of 2020 against the Plaintiff herein and 4 other individuals seeking among others, an order that the Defendants had fraudulently acquired the suit property. From the record, the Plaintiff herein filed a Statement of Defence to the said suit dated 25th February 2021 denying the 2nd Defendant’s claim. 34. Having heard the suit and in a judgment rendered on 11th June 2024, Lady Justice Nelly Matheka allowed the 2nd Defendants’ suit and issued orders that the Plaintiff and her co-defendants in the said suit had indeed fraudulently acquired the land and that they had acquired no lawful or valid title or interest in all that parcel of land known as LR. No. MN/1/3220 and that all titles acquired by them were illegal. The Court went on to declare that the 2nd Defendant herein is the true and lawfully registered proprietor of the suit property. 35. That being the case, it was clear to me that this application before the Court was clearly filed in abuse of the Court process and that the matters sought to be raised by any further hearing of the matter were res judicata. 36. The doctrine of *res judicata* is provided for in Section 7 of the Civil Procedure Act as follows: **“7. Res judicata** **No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court…”** 1. As the Court of Appeal stated in the case of ***Koross –vs-Komen & 4 Others (2015) KECA 906 (KLR)***: **“The philosophy behind the principle of res judicata is that there has to be finality; Litigation must come to an end. It is a rule to counter the all too human propensity to keep trying until something gives. It is meant to provide rest and closure, for endless litigation and agitation does little more than vex and add to costs. A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go.”** 1. In the matter herein, the decree issued in Mombasa ELC Case No. 222 of 2020 has not been set aside. The decision that the 2nd Defendant is the rightful proprietor of the suit land stands and it is high time the Plaintiff accepted that outcome. 2. In the circumstances herein, it is clear to me and I hereby find that this suit is res judicata, vexatious and a gross abuse of the Court process. Nothing worthwhile will be achieved by allowing the application other than the continuous vexation of the 2nd Defendant and the wastage of the precious judicial time. 3. Accordingly, I hereby dismiss not only the Motion dated 22nd September 2025 but this entire suit with costs to the 2nd Defendant. 4. It is so ordered. **Ruling dated, signed and delivered in open court and virtually at Mombasa this 23rd day of July, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) Mrs. Omondi with Mr. Gathu Advocate for the Plaintiff c) No appearance for the 1st Defendant d) No appearance for the 2nd Defendant