https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4321

Embakasi Jua Kali Housing Association (Suing through, Anunda - Chairman, Magati - Secretary, Muya - Treasurer) v Embakasi Developers Ltd & 5 others (Environment and Land Case 1002 of 2015) [2026] KEELC 4321 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEELC 4321 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 1002 of 2015 CA Ochieng, J July 13, 2026 Between Embakasi Jua Kali Housing Association (Suing through, James Billy O Anunda - Chairman, Meshack O Magati - Secretary, John Muya - Treasurer) Plaintiff and embakasi Developers Ltd 1st Defendant Nairobi City County 2nd Defendant Rasikkumar Daihyabhai Patel 3rd Defendant BhanuMatiben Patel Rasikbhai 4th Defendant James Murigi Wanjiku 5th Defendant Lydia Odongo 6th Defendant Ruling 1.What is before the Court for determination is the Plaintiff’s Notice of Motion application dated the 11th November 2025, in which it seeks the following Orders:a.That this Honorable Court be pleased to grant stay of further proceedings in this suit pending the hearing and determination of ELC Petition No. 288 of 2015; Muungano Wa Wanavijiji and others v The Hon. Attorney General and others.b.That costs of this application be provided for. 2.The application is based on grounds that the Plaintiff filed this suit against the Defendants claiming adverse possession of the properties owned by the 1st Defendant, formerly known as LR No. 7109/3, LR No. 7109/4, LR No. 7109/5 and LR No. 7109/7 now amalgamated and subdivided into parcel numbers Nairobi Block 263/4091- Nairobi Block 263/4607. Further, that since the Plaintiff’s claim is founded on the presumption that the 1st Defendant is the lawful and bonafide registered owner of the suit properties, a challenge to the title and ownership of the said properties by any one goes to the core of these proceedings, and in the year 2024, the Plaintiff learnt of the existence of another suit, being Milimani ELC Petition No. 288 of 2015, in which the 1st Defendant is sued as the 11th Defendant in that suit and ownership of the properties subject of this suit is under challenge in that suit, which is at an advanced stage of hearing with the Petitioners having closed their case. The Plaintiff contends that there is need to issue the Orders sought to avert the danger of different courts making different decisions in respect of the same subject matter and the Defendant will not suffer prejudice. The supporting affidavit of Meshack O. Magati, said to have been filed on 11th November 2025, is not available on CTS. Response 3.The 1st Defendant filed Grounds of Opposition in response. He avers that the application is res judicata as the Plaintiffs filed at the Court of Appeal, Civil Application No. NAI E326 of 2025, Embakasi Jua Kali Housing through James Billy O. Anunda, Meshack O. Magati, John Muya v Embakasi Developers Limited and Nairobi City County, where it sought stay of proceedings and an injunction pending hearing of an intended Appeal, of which its application was dismissed for non-appearance under Rule 58 of the Court of Appeal Rules. Further, that granting the Orders sought will impede the 1st Defendant’s right to fair hearing without inordinate delay, adding that the Plaintiffs have never disputed its ownership of the suit properties. 4.The 2nd to 6th Defendants did not file responses to the instant application which was canvassed by way of written submissions. Submissions 5.The Plaintiff submits that the circumstances of this Case are unique in the sense that it is a claim of adverse possession and for it to be maintained, the presumption is that the title of the 1st Defendant in unimpeachable, thus the existence of parallel proceedings challenging the ownership and title of the 1st Defendant puts the Court at risk of reaching conflicting determinations on the primary issue of ownership and title of the 1st Defendant. 6.It insists that the outcome of the other suit will have a direct impact on the outcome of this suit as adverse possession is a hostile possession by asserting hostile title in denial of the title of the true owner, thus in the event that the Court in Petition 288 of 2015 determines that the 1st Defendant does not have good title, then the instant suit would substantially be rendered moot. 7.The 1st Defendant did not file submissions. Analysis and Determination 8.Upon consideration of the instant Notice of Motion application including the supporting affidavit, Grounds of Opposition and submissions, the only issue for determination is whether this suit should be stayed pending the hearing and determination of ELC Petition No. 288 of 2015. 9.The Plaintiff seeks to stay proceedings herein on grounds that the ownership of the suit properties is directly challenged in ELC Petition No. 288 of 2015 and that the determination of that Petition may substantially affect the present claim for adverse possession, which is unique as it requires proof of hostile possession. 10.On its part, the 1st Defendant contends that the application is res judicata as the Plaintiff previously filed an application before the Court of Appeal, being Civil Application No. NAI E326 of 2025 seeking stay of proceedings pending the hearing and determination of an intended Appeal, which application was dismissed for non-attendance pursuant to Rule 58 of the Court of Appeal Rules. I note the Plaintiff has not denied that they indeed filed the aforementioned application in the Court of Appeal seeking stay of these proceedings, which application was dismissed. 11.From the Court record, I note the Plaintiff filed this suit in 2015, the same year the alleged Petition was filed. The Plaintiff has not been keen to proceed with this matter and instead resorted to filing of interlocutory applications. Further, from the Originating Summons, the Plaintiff stated that the suit property was owned by the 1st Defendant. 12.On stay of proceedings in Laly Furnishing House Limited v Kenya National Highways Authority & 2 others [2025] KEELC 429 (KLR), the Judge stated that:“An order of stay of proceedings, which is distinct from an order of stay of execution, is one that should be granted in exceptional circumstances. The Halsbury’s Laws of England, 4th Edition, Vol. 37 at p. 330 states as follows with respect to applications to stay proceedings: “The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court’s general practice is that a stay of proceedings should not be imposed unless the proceedings, beyond reasonable doubt, ought not to be allowed to continue….This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of this case.” 13.From the Court record, it emerges that there have been previous suits in respect to the dispute herein being HCCC No. 2299 of 1999 filed by the 1st Defendant and HCCC No. 456 of 2010 (OS) filed by the Plaintiff but they later withdrew it after getting Orders of interlocutory injunction against the 1st Defendant. Further, in a Ruling dated the 26th September, 2024, it emerged that parties herein were negotiating a settlement wherein the Plaintiff’s members sought to purchase various plots emanating from the suit property, from the 1st Defendant. 14.On stay of proceedings, Section 6 of the Civil Procedure Act provides that:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 15.The Supreme Court stated as follows in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR:“…. The purpose of the sub judice rule is to stop the filing of multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of sub judice must therefore establish that; there is more than one suit over the same subject matter, that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 16.In Kenya Wildlife Service v James Mutembei [2019] eKLR, it was held that:“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right of access to justice, the right to be heard without delay, and overall, the right to a fair trial. Therefore, the test for stay of proceedings is high and stringent. This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases… Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is no cause of action in law or equity…..” 17.In this instance I note the Plaintiff has not confirmed if its members are parties to the aforementioned Petition. Further, they claim the suit property herein is also the suit property in the aforementioned Petition. The Petition was filed the same year as the Originating Summons herein and I note there have been previous suits touching on the suit property, which I have highlighted above. Since the dispute herein revolves around adverse possession, I opine that this will not affect the proceedings in the Petition since if the Plaintiff’s members claim on adverse possession succeeds, then whoever is declared as owner of suit property in the Petition will have to transfer suit property to them. 18.It is trite that in a claim to prove ownership over a property, it has to be instituted as a civil suit and it involves invoking provisions within the available statutes. However, in a Petition, constitutional provisions claimed to have been violated, have to be raised. To my mind a claim for adverse possession over a property and a Constitutional Petition are distinct. In the foregoing, I am unable to stay the proceedings herein as sought by the Plaintiff as there are no exceptional circumstances demonstrated. I further find that since the Plaintiff had also sought to stay these proceedings in an application filed in the Court of Appeal, which was dismissed, the instant application is hence deemed to be res judicata by dint of section 7 of the Civil Procedure Act. 19.Based on the facts as presented, while relying on the legal provisions cited and associating myself with the decisions quoted, I find the instant Notice of Motion application dated the 11th November, 2025 unmerited and will dismiss it with costs to the 1st Defendant. DATED SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF JULY, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Gakunju holding brief for Elijah Mwangi for 1st DefendantCourt Assistant: Vena