https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5220

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT KENYA** **AT KWALE** **ELC PETITION NO. E003 OF 2026** **PAPAYE PAUL LEHONGO & 10 OTHERS *(suing on their own behalf and on behalf of 400 residents of the suit land).*…………….….…PETITIONERS** * **VERSUS -** **SHUMBA VALLEY CONSERVANCY…….................….1ST RESPONDENT** **THE NATIONAL LAND COMMISSION…..…………….…2ND RESPONDENT** **THE COUNTY GOVERNMENT OF KWALE.……………3RD RESPONDENT** **THE CHIEF LAND REGISTRAR..………………….…….4TH RESPONDENT** **THE HON. ATTORNEY GENERAL………………………..5TH RESPONDENT** **RULING** 1. **Introduction** 2. This Honourable Court is called upon to make a determination unto the Notice of Motion application dated 11th February, 2026 (Hereinafter referred to as “The Petitioners’ Application”). It was filed by *Papaye Paul Lehongo and 10 others* suing on their own behalf and on behalf of 400 residents of the suit land, the Petitioners/Applicants herein. The application sought for injunctive relief to restrain eviction, harassment, and demolition of ostensibly their properties on LR No. 16659 (formerly LR No. 14209) (Hereinafter referred to as “The Suit Property”) situated in Kinango Sub - County, the County of Kwale. Equally, before the Court was the Notice of Motion application dated 23rd March, 2026 filed by *Shumba Valley Conservancy*, the 1st Respondent seeking to strike out the Petition on grounds of being in breach of “***the Doctrine of Res Judicata”*** and to set aside “***the Ex – Parte”*** orders issued by this Honorable Court on 16th February, 2026 thereof (Hereinafter referred to as “The 1st Respondent’s application”). 3. To this effect, the Honorable Court is seized of the Supporting Affidavit sworn on 11th February, 2026 by *Papaye Paul Lehongo*, the 1st Petitioner, deponing to long occupation of the suit land by various communities since the years 1940s, and alleging violation of constitutional rights under the provision of Articles 27, 28, 29, 40, 43 and 60 of the Constitution of Kenya, 2010. 4. The Petitioners’ application was brought under the provisions of Order 51 Rule 1, 40 Rules 1 of the Civil Procedure Rules 2010, Article 40 of the Constitution of Kenya 2010 and Sections 1A, 1B, 3A & 63( c ) & ( e ) of the Civil Procedure Act, Chapter 21, Laws of Kenya). 5. Upon service of the application by the Petitioners, the Court is seized of the Replying Affidavit sworn on 23rd March, 2026 by Mohamed Abdikadir Adan, Director of the 1st Respondent, reiterating that the suit property is a registered wildlife conservancy and asserting that the Petition is barred by “***the Doctrine of res judicata***”, having been conclusively determined in the case of:- ***“Taireni Association of Mijikenda – Versus - Mwabeja Ranching Company Limited & 7 Others (Petition No. 12 of 2021) [2022] KEELC 4882 (KLR)”***. 6. Additionally, the other Respondents opposed the said Petitioners’ application through filing of Grounds of Opposition, affidavits, and written submissions, contending that the Petitioners had engaged in wanton environmental destruction, poaching, and charcoal burning within the Conservancy, thereby undermining conservation efforts. 7. Therefore, in this Omnibus ruling expansively addresses the merits of both the applications by the Petitioners and the 1st Respondent separately and distinctly but simultaneously. Additionally, it assesses the respective affidavits filed in support and opposition thereto, guided by the applicable constitutional provisions, statutory framework, and judicial precedents. 8. **The Notice of Motion application dated 11th February, 2026** 9. The Petitioners/Applicants sought the following orders:- 10. ***Spent.*** 11. ***Spent.*** 12. ***That this Honorable Court be pleased to issue an order restraining the Respondents, their servants, agents, workers or any person acting under their instructions, or any person for that matter, from harassing, intimidating, evicting, demolishing the Petitioners' properties or in any other manner whatsoever interfering with the Petitioners' occupation of the suit Land formerly known as LR No. 16659- formerly registered as LR No. 14209 situated in Kinango Sub-County within Kwale county pending hearing and determination of the Petition.*** 13. ***That the Officer Commanding Kwale Police Station to ensure compliance of this order.*** 14. ***That this Honorable court be pleased to issue any other order it may deem fit in the interests of justice.*** 15. ***That costs of this Application be provided for.*** 16. The 1st application by the Petitioners/Applicant was premised on the grounds, facts and testimony on the face of the application and further supported by the 26 Paragraphed annexed affidavit of PAPAYE PAUL LEHONGO, the Petitioner/Applicant herein. The Affiant averred as follows that:- 17. He was one of the Petitioners therein suing on his own behalf and that of his fellow Petitioners who were residents of Kinango Sub‑County and specifically the suit land formerly known as LR No. 16659 – formerly registered as LR No. 14209, and who had authorized him to plead, act and swear on their behalf as per the authority and list of all the Petitioners. (Annexed in the affidavit and marked as “PPL ‑ 1” was a copy of the Authority). 18. For the years the Petitioners had been in occupation and use of the suit land, they had to date greatly engaged in a myriad of economic and social activities including but not limited to farming, construction of houses and burying of their loved ones. 19. The Petitioners came into possession and occupation of the suit land through their forefathers in their different communities as follows; in the year 1940 the community of Waatha inhabited the suit land followed by the Duruma Community in the year 1950, the Maasai in the year 1968 and lastly the Mrondo community in the year 1975. Subsequently, other communities inhabited the suit land in the following years forming the following villages namely; Kilibasi Center, Metani Village A and B, Ndule Village, Girigori Village, Nyango A and B Villages, Jaro Village and Kizaya Village. 20. The Petitioners had continued to farm and occupy the land and during their occupation, there came Mwambeja Ranch which was followed by Shimbaland Ranching in the year 2013, followed by Shumba Valley Conservancy, the 1st Respondent, who acquired the suit land. 21. As recognition of the existence of the Petitioners on the suit land, the following government projects were established and were in existence to date, namely: Nyango Primary School opened in the year 1982, Nyango Dispensary, Nyango ECDE, Gorigori ECDE, Social Services Curio, Metani ECDE, and Durura Dam constructed by the County Government. (Annexed in the affidavit and marked as “PPL ‑ 2” was a bundle of photographs). 22. After acquisition by the 1st Respondent, the exercise of survey, demarcation and fencing were rolled out by the 1st Respondent in the year 2020 which led to displacement of the Petitioners and their families as well as alienation of their parcels of land. 23. The Petitioners faced unfair eviction, unlawful arrests, destruction of their properties, and harassment by the 1st Respondent in a bid to have them vacate from the parcels they had occupied for many years. 24. The Petitioners brought the Petition for determination by the Court of issues surrounding historical injustices and breaches of the Constitution. 25. Further, the Petitioners complained of consequential breaches of their constitutional rights to own, use and occupy land which they had used consistently since the years 1940s. 26. The Petitioners had all along believed and held themselves as residents of Kinango Sub‑County and the suit land, which was the only place they had regarded as home, with several of the Petitioners having been born and raised on the suit land. 27. The occupation of the Petitioners was that of small‑scale farmers whose vocation was planting seasonal food crops and rearing domestic animals in the specific portions of the suit land they occupied. 28. This was also the main occupation of their neighbors in the larger Kinango Sub‑County. 29. The Petitioners, by virtue of their continued occupation, use and possession of the suit land even before it was granted to the 1st Respondent, had acquired title by reason of long and uninterrupted occupation. During this period the Respondents or anybody for that matter had never evicted them or exercised control and possession of the suit land. 30. Recently the Respondents had forcefully resorted to harassing, intimidating and destroying the Petitioners’ properties, an act which was in breach of the Petitioners’ right to own property as guaranteed under Article 40 of the Constitution. 31. The Petitioners had as well faced several acts of violence against their property and person from the 1st Respondent who, without any colour of right, had intimidated, harassed and subjected them to unlawful and arbitrary arrests in a bid to have the Petitioners vacate from the suit land. 32. The Petitioners were now at the risk of losing their properties and being rendered destitute. 33. In the recent past the Respondents had interfered with their quiet possession by using the police to threaten and evict them from the suit land. This had caused them to live in constant fear of what might happen the next day since they were threatened with eviction as well as alienation of their parcels. 34. The process that led up to the grant to the 1st Respondent was greatly flawed in that there was no public participation given that they were on the land. 35. This amounted to a serious violation of their rights to own and possess portions of the suit land and even had an opinion on any decisions that were to be made concerning their land and rights thereto since their interests had already crystallized. 36. The actions by the Respondents were purely meant to violate their constitutional rights to own property. 37. They were now desperate since their rights had been stepped on and were likely to be continuously violated by the Respondents who were using dictatorial powers and/or methods to evict them therefrom forcefully without any sanction by the Court. 38. They were a mixture of all ages of people ranging from men, women and the elderly including school‑going children who were very vulnerable to the actions of the Respondents. 39. Over and above, they were the bona fide owners of the suit land entitled to be recognized, registered and issued with title deeds for the respective portions of the suit land they occupied. 40. The Respondents through their officers, servants and/or agents had played a pivotal role in the victimization and discrimination of the Petitioners herein by facilitating the illegal dispossession of the suit land and the respective portions occupied by the Petitioners. 41. There had been several instances in which chaos had erupted in the area due to the flaw in the processes of adjudication pitting the Petitioners and the agents of the 1st Respondent. 42. It was worth noting that at the time the area was declared a settlement area and even before the acquisition by the government, the suit land was fully inhabited by the Petitioners herein who had already defined their boundaries, cleared their parcels and established their residences therein without any disturbance whatsoever. 43. He verily believed that the suit land had been purchased by the government for the benefit of genuine squatters who however ended up being disenfranchised and/or disinherited from the suit land and the settlement area. 44. The said victimization and discrimination against the Petitioners had gone to the extent of arbitrary arrests and unlawful detention on trumped‑up charges of forcible detainer, yet they were the very people rightfully entitled historically and in all material respects to benefit from the suit land and the settlement area. 45. What was set out hereinabove was true to the best of his own knowledge, information and belief, the full sources and particulars whereof were disclosed therein. 46. **The Notice of Motion application dated 23rd March, 2026** 47. The 1st Respondent’s Application was brought under the provisions of Sections 1A, 1B, 3A, 7 of the Civil Procedures Act, Cap. 21, Order 2 Rule 15(1)(b)(c) & (d), Order 51 Rule 1 of the Civil Procedure Rules, 2010, Section 7 of the Limitations of Actions Act Cap. 22, and all other enabling provisions of the Law. 48. The Applicant sought the following orders:- 49. ***Spent.*** 50. ***Spent.*** 51. ***That the Honourable Court be pleased to strike out the suit herein.*** 52. ***That the costs of this application be awarded to the 1st Respondent/Applicant*** 53. The application by the 1st Respondent/Applicant was premised on the grounds, facts and testimony on the face of the application and further supported by the 42 Paragraphed annexed affidavit of MOHAMED ABDIKADIR ADAN, a Director of Shumba Valley Conservancy, the 1st Respondent herein. The Affiant averred as follows that: 54. He was a male adult of sound mind and competent to make the statement. 55. He was a Director of Shumba Valley Conservancy, the 1st Respondent herein, and had been authorized by the 1st Respondent to plead on its behalf. He was therefore competent to swear the affidavit in support of the application filed therein. 56. Notably, the Affiant stated that he had also been a director in the Shimbaland Ranching Company Limited before the change of name. 57. He had read the Petition dated 11th February, 2026, the Notice of Motion application together with the supporting affidavit of Papaye Paul Luhengo sworn on even date, and the documents attached thereto. He deponed that he had had his Advocates, M/s Sagana Biriq & Muganda Advocates LLP, explain the import of the Petition and the orders issued on 16th February, 2026. 58. He stated that the affidavit was sworn in support of the application filed by the 1st Respondent, seeking to strike out the Petition and the proceedings therein. 59. The evidence in the affidavit was derived from his own knowledge and such other information acquired by virtue of his position from the records in the custody of the 1st Respondent. 60. The 1st Respondent was the registered and lawful proprietor of all that parcel of land arising from LR No. 16659 – formerly registered as LR No. 14209 - the suit property - situated in Kinango Sub‑County, Puma Ward, Kwale County. Attached and marked as “MAA ‑ 1” was a copy of the Certificate of Title. 61. The suit property was presently a wildlife conservancy. Historically, since the year 1975, the land had been utilized primarily for agricultural purposes. However, in the year 2021, the property underwent a significant and deliberate transition from agricultural use to a dedicated wildlife conservation area, with a focused mandate on habitat restoration and ecological preservation. 62. He deponed to the issues set out as the grounds upon which the proceedings before the Honourable Court ought to have been struck out with costs. 63. **The Impact of the Ex - Parte Orders of 16th February, 2026 on the Conservancy** 64. The Affiant averred that the suit property was presently a wildlife conservancy established in he year 2021, specifically designated for wildlife conservation, with a focused mandate on habitat restoration, preservation of indigenous species, and overall environmental protection. 65. He deponed that the 1st Respondent’s mission and vision were anchored in a commitment to protecting endangered wildlife species through community‑led conservation initiatives. It conserved indigenous flora and fauna vital to the region’s ecological development. The area constituted a designated wildlife habitat and supported free‑ranging wildlife, including species at risk of poaching due to their ornamental value or for subsistence hunting. Some of these species also posed a significant threat to human life, making them vulnerable to retaliatory killing by those encroaching on the Conservancy. 66. He was aware that the Conservancy had been affected by hunting, poaching, and charcoal burning by communities living within the area. The 1st Respondent and Kenya Wildlife Services had invested heavily in efforts to curb these activities, which had significantly degraded the environment and threatened wildlife within the Conservancy. 67. He was aware of the injunctive orders issued on 16th February, 2026, which effectively restrained the 1st Respondent as the lawful owner from exercising its rights over the property. The orders permitted the Petitioners to continue committing atrocities on the suit property, including harm to wildlife and destruction of vegetation. 68. He was advised by the 1st Respondent’s Advocate, which advice he verily believed to be true, that the said orders were obtained by material non‑disclosure of facts and had far‑reaching consequences as they affected the wildlife and endangered species residing in the Conservancy. 69. The orders issued on 16th February, 2026 had exacerbated unlawful activities undertaken by the Petitioners and individuals within the surrounding communities. There had been severe habitat destruction, significant loss of biodiversity, and increased poaching that had nearly stripped the ecosystem of key species, disrupted the ecological balance, and pushed many plants and animals closer to extinction. 70. The Petitioners had taken advantage of the orders of the Court to destroy the forest and commit atrocities against wildlife within the Conservancy. The 1st Respondent, through its officers and the Kenya Wildlife Service within the Conservancy, had documented alarming incidents including: 71. Poaching and killing of animals such as lions, elephants, giraffes, Grevy’s zebras, buffalo, leopards, warthogs, hyenas, lesser kudu, dik‑dik, ostriches, cheetahs, hartebeest, pangolins, and other herbivores, including rare species of birds, leading to a significant reduction in wildlife populations. Young animals whose mothers had been killed had been left orphaned, vulnerable, and at risk of death. 72. Endangered indigenous flora had been destroyed for commercial purposes. 73. There was ongoing large‑scale deforestation within the Conservancy for charcoal burning by the Petitioners and surrounding communities. Attached and marked as “MAA ‑ 2” was an album of photographs evidencing the poaching, hunting, charcoal burning, and destruction of the Conservancy by the Petitioners and the surrounding communities. Video evidence was to be produced during the trial. 1. The 1st Respondent’s game rangers and the Kenya Wildlife Service had established a camp to address rampant hunting and poaching. However, following the orders issued on 16th February, 2026, it had become impossible to effectively curb these activities due to the limitations imposed by the Court’s orders. 2. The subject of the Ex - Parte orders and the numerous complaints by the Petitioners had been made in bad faith and for extraneous purposes. Accordingly, the Honourable Court ought to have discharged the same without delay. 3. Sometimes in the year 2020, a group of individuals acting under the auspices of the Taireni Association of Mijikenda had filed a Petition before the Environment and Land Court in Mombasa, being Petition No. 8 of 2020, which was later transferred to the Kwale Environment and Land Court, being ***“Taireni Association of Mijikenda – Versus - Mwabeja Ranching Company Ltd & 7 Others (Petition No. 12 of 2021) [2022] KEELC 4882 (KLR)”***. Attached and marked as “MAA ‑ 3” was a copy of the Petition dated 16th March, 2020. 4. The Petition had been instituted as a representative suit on behalf of persons being the Duruma Community and the Mwabeja Clan, who were later joined by the Waatha, Maasai, Kamba, and Somali communities residing on land registered as LR No. 16659 (formerly LR No. 14209), situated in Kinango Sub‑County, Puma Ward, Kilifi County. Some of its members were listed under paragraph 40 of the Petition and included the 4th Petitioner, Chikophe Mwaruwa Kizao, with a copy of his ID provided at page 116 of the said Petition. 5. All the Respondents herein had also been respondents in Kwale Petition No. 12 of 2021. 6. He had read the pleadings in “***Kwale Petition No. 12 of 2021 (formerly Mombasa Petition No. 8 of 2020)”***, in which suit the Petitioners had sought various declaratory and injunctive orders, including declarations of ancestral occupation, invalidity of the grant issued to the 1st Respondent, permanent injunctions restraining demolition, transfer, or subdivision of the suit land, and judicial review orders to quash the title deed and convert the suit land into community land. 7. The Petition had been heard with all parties making their respective representations before the Court. On 15th July, 2022, Hon. Justice A.E. Dena dismissed the Petition for lack of merit and issued orders upholding the 2nd Respondent’s title, directing excision and surrender of portions of the land to the County Government of Kwale, and ordering each party to bear its own costs. Attached and marked as “MAA ‑ 4” was a copy of the Judgment dated 15th July, 2022. 8. Following delivery of the Judgment, Shimbaland Ranching Company Limited, the Kwale County Government, and the National Land Commission had been collaborating to ensure compliance with and implementation of the directions issued by the Court. Attached and marked as “MAA ‑ 5” was a copy of the Letter dated 31st March, 2023. 9. The County Government of Kwale, in conjunction with the National Land Commission, was in the process of conducting reconnaissance of the area and the people to determine those who were genuine squatters, and to work out the modality of the surrender. Attached and marked as “MAA ‑ 6” was a copy of the Letter dated 26th July, 2023. 10. In the pendency of the above process, including sub - divisions, demarcations, and ascertainment of genuine squatters, no individual or person within the suit land had been harassed, intimidated, or evicted. The Petitioners had not pleaded with specificity or particularized their claim with cogent evidence. In any event, such a claim had been made in Petition No. 8 of 2020, and the Court had found no such evidence. 11. He was further aware that the Court in the previous suit had referenced at Paragraph 92 of its Judgment the fact that prior to the 1st Respondent’s occupation and improvement of the suit land and establishment of infrastructure, ***“the land was scarcely populated and it is only after numerous improvements on the infrastructure that invasion by a small number of individuals has taken place.”*** 12. The current Petition at Prayer (a), seeking reliefs in terms of:- ***“a declaration that the Petitioners’ rights to property guaranteed under Article 40 of the Constitution of acquiring and benefiting from the suit land formerly known as LR No. 16659 – formerly registered as LR No. 14209 situated in Kinango Sub‑County within Kwale County have been violated and infringed upon”***, was evidence of re‑litigation of a settled matter. 13. A casual perusal of the previous Petition, its language, formation, historical narration, and grievances clearly showed that the Petitioners herein had heavily borrowed or taken cue from the previous Petition. 14. He was advised by the 1st Respondent’s Advocate, which advice he verily believed to be true, that the present Petition was barred by “***the Doctrine of Res Judicata”*** for the following reasons: | | | | | --- | --- | --- | | **Particulars** | **Petition No. E003 of 2026** | **Petition 12 of 2021** | | Nature of the Suit | Representative Suit in respect of the public rights | Representative Suit in respect of the public rights | | The Parties or their Representatives are the same | The suit was filed by residents of Kinango Sub-County on behalf of 400 other members of the community, comprising the Waatha, Duruma, Maasai, and Mrodo communities, who allegedly migrated to the property in 1940, 1950, 1968,and 1975, respectively. The property in question is registered as L.R. No. 16659 (formerly L.R. No.14209). | The Petition was filed by the Taireni Association of Mijikenda, asserting rights over the property on behalf of the Duruma Community, specifically the Mwabeja Clan, as well as the Wattah, Maasai, Kamba and Somali communities, who allegedly migrated to the area in 1943.The property in question is registered as L.R. No. 16659(formerly L.R. No.14209). | | The subject matter of the two suits is the same | This suit is against the 1st Respondent/Applicant and 4 others. Community rights on property known as L.R. No.16659 (formerly L.R. No.14209). Prayers inter alia: 1. A declaration that the property No.LR 16659 -Voi (formerly 14209 -Taita), is a bona fide community or ancestral lands. 2. A declaration does issue that the issuance of the grant on the suit land, registered as No. LR 16659 - Voi (formerly 14209 -Taita) was both unlawful and unconstitutional. 3. An order of permanent injunction does issue restraining the 2nd Respondent, trespassing on the suit land, registered as No.LR 16659- Voi (formerly 14209 -Taita). | This suit is against all the five (5)Respondents who were Respondents in the previous suit. Community rights on property known as L.R. No. 16659(formerly L.R. No. 14209). Prayers inter alia: (a)A declaration that the Petitioners' right to property under Article 40 with regard to suit land formerly known as LR No. 16659-formerly registered as LR No.14209- has been violated. (b)A declaration that the Petitioners have acquired title to the suit land known as No. LR 16659 -formerly 14209and entitled to protection under Article 40 of the Constitution. (c) An order of permanent injunction against Respondents from interfering with the Petitioners' peaceful possession, use, and occupation of the suit land. (d)An order against the 2nd , 3rd and 4th Respondents to undertake a resurvey of the suit land formerly known as LR No.16659-formerly registered as LR No. 14209 with a view to settling the petitioners herein on the parcel. | | Final Judgment | Pending directions and hearing by the Court | Judgment delivered on 15th July 2022 Orders inter alia: (i) Petition is hereby dismissed. (ii) The grant issued to Mwambeja Ranching Company Limited was regularly issued, and therefore the title held by Shimbaland Ranching Company Limited arising from L.R. No. 16659(formerly L.R. No. 14209) is lawful and valid. (iii)The portions of the land measuring 1,878.2 hectares (or 4,640 acres)and 3,479 hectares (or8,584 acres) be excised from L.R. No. 16659(formerly L.R. No. 14209),surrendered to the Kwale County Government, and administered as recommended by the National Land Commission. | | Court of competent jurisdiction | Environment and Land Court at Kwale | Environment and Land Court at Kwale | 1. The Petitioners had sought similar prayers as Petition No. 12 of 2021 under the guise of enforcement of the right to property in the current suit, which were particularized as follows:- 2. ***A declaration that the Petitioners’ rights to property guaranteed under Article 40 of the Constitution of acquiring and benefitting from the suit land formerly known as LR No. 16659 – formerly registered as LR No. 14209 situated in Kinango Sub‑County within Kwale County have been violated and infringed upon.*** 3. ***A declaration that as a result of the long, uninterrupted, and continuous occupation of the suit land known as LR No. 16659 – formerly LR No. 14209 situated in Kinango Sub‑County within Kwale County, the Petitioners are entitled to acquire title and benefit from the suit land pursuant to their rights to own and occupy the portions they occupy, which have since crystallized and should be protected and promoted under Article 40 of the Constitution.*** 4. ***An order of permanent injunction be issued against the Respondents, their agents and/or servants or anyone else claiming through them or acting under their instructions or anyone for that matter, from evicting, threatening, or in any other manner whatsoever interfering with the Petitioners’ peaceful possession, use and occupation of the suit land.*** 5. ***An order against the 2nd, 3rd, and 4th Respondents to undertake a resurvey of the suit land formerly known as LR No. 16659 – formerly registered as LR No. 14209 situated in Kinango Sub‑County within Kwale County, with a view to settling the Petitioners herein on the parcels they currently occupy without any alterations.*** 6. ***An order that upon resurvey and recording of the Petitioners herein as beneficiaries therein, the Petitioners be issued with title deeds in respect to the specific portions they occupy.*** 7. ***General and exemplary damages be assessed and awarded to the Petitioners for gross violation of their fundamental rights to property and loss of property suffered as a result of the actions of the Respondents.*** 8. ***Any other relief that the Honourable Court would be pleased to issue.*** 9. ***Costs of the Petition.*** 10. The Affiant deponed that he was advised by the 1st Respondent’s Advocate, which advice he verily believed to be true, that the provision of Section 7 of the Civil Procedure Act, Cap. 21, together with Explanation 6, barred the institution of further suits where the issues had already been determined in a representative suit. 11. Section 7 provided that: **“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. Explanation 6 provided that: **“Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”** 1. The Affiant was advised by the 1st Respondent’s Advocate, which advice he verily believed to be true, that the principle of res judicata upheld the doctrine of finality in litigation, to the effect that once a judgment had become final and conclusive, the matters in issue that were directly and substantially determined therein could not be litigated afresh, save where grounds such as fraud, mistake, or lack of jurisdiction were specifically pleaded and properly challenged in subsequent proceedings. This was not the case in the present Petition. 2. He was further advised by the 1st Respondent’s Advocate that the Honourable Court lacked jurisdiction to proceed with the Petition herein. The Court was functus officio, the issues in dispute having been conclusively determined in Petition No. 12 of 2021. The Petitioners were estopped from re‑litigating the same issues. 3. He knew of his own knowledge that the Petitioners had neither filed an appeal nor sought a stay of execution of the said Judgment. Consequently, the decision of the Court in Petition No. 12 of 2021 remained valid and binding with respect to the issues determined therein. 4. The Affiant was further advised by the 1st Respondent’s Advocate, which advice he verily believed to be true, that the issue of title and ownership of the property known as LR No. 16659 (formerly LR No. 14209) had been litigated and determined by a court of competent jurisdiction in Petition No. 12 of 2021, and therefore the Honourable Court could not reopen such issues by allowing the Petitioners to litigate under a different title. 5. He was advised by the 1st Respondent’s Advocate, which advice he verily believed to be true, that under the doctrine of Res Judicata, where a party litigated in a representative capacity, such party and the persons represented could not reintroduce the same matter in a subsequent suit, even where the later suit was framed differently. He cited the holding of Kuloba J in ***“Niangu – Versus - Wambugu & Another Nairobi HCCC No. 2340 of 1991”***, where the Court stated:- ***“If parties were allowed to go on litigating forever over the same issue with the same opponent before Courts of competent jurisdiction merely because he gives his case some cosmetic face‑lift on every occasion he comes to Court, then I do not see the use of the doctrine of res judicata…”*** 1. **The Petition was barred by the Limitation of Actions** 2. The Affiant stated that he was advised by the 1st Respondent’s Advocate, which advice he verily believed to be true, that the Petition was time‑barred under the provision of Section 7 of the Limitation of Actions Act, Cap. 22, Laws of Kenya, which provided that:- **“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”** 1. The Petitioners, in Paragraph 3 of the Supporting Affidavit of Papaye Paul Luhengo, alleged that the communities had acquired rights to the property in the year 1940. 2. Similarly, the Petition, in Paragraphs 7 and 22, indicated that the Petitioners had been in occupation of the suit property for more than sixty years. In any event, the property had been allotted to Mwambeja Ranching Company Limited in the year 1997. A considerable period had since elapsed, and the Petitioners had not filed any claim to the title within the prescribed time. 3. The Petitioners had therefore lost their right to file the present suit and could not claim ownership under any description whatsoever. 4. The Affiant deponed that he was advised by the 1st Respondent’s Advocate, which advice he verily believed to be true, that mere occupation of land did not grant ownership or right to property under Article 40 of the Constitution. 5. The Petition herein ought to fail on the ground of limitation of action, and the 1st Respondent urged the Honourable Court to strike out the entire suit with costs. 6. The suit before the Honourable Court was incompetent, fatally defective, and an abuse of the court process and ought to have been dismissed with costs to the 1st Respondent. 7. He made the affidavit in support of the application filed by the 1st Respondent and urged the Honourable Court to grant the orders sought therein. 8. What was stated and the facts deponed to therein were true to the best of his knowledge, information, and belief. 9. **The Response to the Notice of Motion application dated 23rd March, 2026** 10. The 1st Petitioner responded to the Notice of Motion application dated 23rd March, 2026 through a 12 Paragraphed Replying Affidavit sworn by PAPAYE PAUL LEHONGO, the 1st Petitioner herein on 17th April, 2026 who averred as follows that:- 11. He was the 1st Petitioner, well conversant with the matters therein and duly authorized by his fellow Petitioners, hence competent to swear the affidavit. 12. He had read and understood the 1st Respondent’s application dated 23rd March, 2026 and that all the technical matters therein had been explained to him by his Advocates on record, and hence he wished to respond as follows. 13. First and foremost, the suit ( ***“Kwale Environment & Land Court Petition No. 12 of 2021 – Taireni Association of Mijikenda – Versus - Mwabeja Ranching Company Ltd & 7 Others”***) had been filed by the Taireni Association of Mijikenda mainly in protection of the Mijikenda interests over the suit property, drawn from the Duruma and Waatha communities. 14. The suit therein had involved quite different parties than those in the present suit, though it touched on the same subject matter. 15. Secondly, the prayers sought in the said suit had been quite different from those sought in the current Petition. In the earlier petition by the Taireni Association of Mijikenda, the prayers sought were to declare that members of the named communities were not squatters and that the grant issued to Mwabeja Ranching was unconstitutional, amongst other prerogative orders. 16. The current suit, though concerning the same subject matter as the previous suits, related to a different cause of action based on the particularized breaches of fundamental rights and freedoms as per Paragraph 21 of the current Petition, as well as a different class of people. There was no identity between the Petitioners herein and those who had petitioned as the Taireni Association of Mijikenda, nor between the Respondents in the two suits. 17. The Affiant was advised by the Advocates on record, which advice he verily believed to be true, that for “***the Doctrine of Res Judicata”*** to be effectively raised, an applicant must satisfy the following elements: 18. The suit or issue was directly and substantially in issue in the former suit. 19. The former suit was between the same parties or parties under whom they or any of them claim. 20. Those parties were litigating under the same title. 21. The issue was heard and finally determined in the former suit. 22. The court that formerly heard and determined the issue was competent to try the subsequent suit 23. The Affiant deponed that, evidently, the present suit having been brought by different parties than those in the former suit, against a different owner than that in the former suit, and based on a different cause of action, the bar of res judicata did not arise against a party who had never participated in the former suit and thus could not be applied to bar the current suit. 24. The Court had considered the material before it, including photographic evidence, in granting the orders to preserve the status quo. 25. There was no evidence that the alleged destruction of the environment was attributable to the Petitioners herein whatsoever. 26. The Petitioners had, over the years, continued to peacefully preserve the ecosystem 27. To that end, the 1st Respondent’s application was frivolous, vexatious, an abuse of the court process, based on bad faith, and should thus have been dismissed. 28. He swore the affidavit in opposing the 1st Respondent’s application dated 23rd March, 2026. 29. What was deposed to therein above was true to the best of his knowledge, information, and belief. 30. **The Replying Affidavit by the 2nd Respondent’s to the 1st Respondent’s application 23rd March, 2026** 31. The 2nd Respondent responded to the 1st Respondent’s application dated 23rd March, 2026 through a 11th paragraphed replying affidavit sworn by Brian Ikol on 28th May, 2026 wherein:- 32. The Affiant deponed that he was a male adult person of sound mind, the Director Legal Affairs and Dispute Resolution at the National Land Commission, the 2nd Respondent herein. The Affiant stated that he was conversant with the facts of the matter and duly authorized to sign the Affidavit on its behalf, and was therefore competent to make the Affidavit in response to the Petition before the Honourable Court. 33. The Affiant averred that he was duly authorized by the National Land Commission (“the Commission”) to swear the affidavit in response to the 1st Respondent’s Notice of Motion application dated 23rd March, 2026 as well as the supporting affidavit of Mohamed Abdikadir Adan sworn on 23rd March 2026 and the annexures thereto, including the Certificate of Title, the Judgment in Kwale Petition No. 12 of 2021, and the photographs marked “MAA-2,” which sought to set aside the ex parte orders of 16th February 2026 and to strike out the main Petition. 34. The Affiant deponed that the Commission had perused the 1st Respondent’s application and took no position on the substantive dispute between the Petitioners and the 1st Respondent regarding occupation, eviction, alleged poaching, or environmental destruction, as these were private disputes between private parties over private land. 35. The Affiant stated that the Commission noted the 1st Respondent’s contention that the suit property was private land registered in its name. If this was indeed the case, the Commission reiterated its position as stated in its response to the Petitioners that it had no constitutional or statutory mandate over private land disputes. 36. The Affiant averred that the Commission further noted the 1st Respondent’s argument that the Petition was res judicata having regard to Kwale ELC Petition No. 12 of 2021 Taireni Association of Mijikenda vs. Mwabeja Ranching Company Ltd & 7 Others, in which the Commission was a Respondent. 37. The Affiant deponed that upon a cursory review of the annexed judgment in the previous suit (Annexure “MAA-4”), the Commission observed that the previous suit also involved a contest over the same suit property LR No. 16659 (formerly 14209) between an association of occupants and the ranch/conservancy. 38. The Affiant stated that while the Commission acknowledged the judgment and orders issued in the previous suit, including the order for the excision and surrender of portions “B” and “C” to the County Government of Kwale for squatter settlement, the Commission maintained that its mandate did not extend to adjudicating ownership or occupation rights over private land that was not subject to a review of public land grant. 39. The Affiant averred that the Commission therefore respectfully requested the Honourable Court to strike out its name from the proceedings as an unnecessary and improperly enjoined party; or in the alternative, excuse the Commission from active participation in the inter partes hearing of both applications and the main Petition. 40. The Affiant deponed that the Commission would abide by any orders of the Honourable Court as to costs. 41. The Affiant stated that what was deponed therein was true to the best of his knowledge, information, and belief. 42. **The 2nd Respondent’s replying affidavit to the Petitioners Application dated 11th February, 2026** 43. The 2nd Respondent responded to the Petitioners’ application dated 11th February, 2026 through a 12 Paragraphed replying affidavit sworn by BRIAN IKOL on 28th May, 2026 wherein:- 44. The Affiant deponed that he was a male adult person of sound mind, the Director Legal Affairs and Dispute Resolution at the National Land Commission, the 2nd Respondent herein. The Affiant stated that he was conversant with the facts of the matter and duly authorized to sign the Affidavit on its behalf, and was therefore competent to make the Affidavit in response to the Petition before the Honourable Court. 45. The Affiant averred that he had sworn the affidavit in response to the Petitioners’ Notice of Motion application dated 11th February 2026 as well as the affidavit in support of the Application sworn by Papaye Paul Lehongo and the annexures thereto. The Affiant deponed that he had had the matters of law in relation to the same explained to him by the 2nd Respondent’s Counsel on record and verily believed the said explanations to be sound in law. 46. The Affiant stated that the Commission was a constitutional body established under Article 67 of the Constitution of Kenya, 2010. Its mandate and functions were explicitly set out in Article 67(2) of the Constitution and Section 5 of the National Land Commission Act, No. 5 of 2012. 47. The Affiant deponed that upon a preliminary review of the pleadings, it was manifestly clear that the suit property described as LR No. 16659 (formerly registered as LR No. 14209) was registered in the name of the 1st Respondent, Shumba Valley Conservancy. A copy of the Certificate of Title exhibited as “MAA-1” in the Supporting Affidavit of Mohamed Abdikadir Adan dated 23rd March 2026 confirmed this. 48. The Affiant averred that by dint of such registration, the suit property constituted private land as defined under Article 64 of the Constitution of Kenya, 2010, which stated that private land consisted of registered land held by any person under any freehold tenure, or land held by any person under leasehold tenure. 49. The Affiant stated that the Commission’s constitutional and statutory mandate over land was confined to public land and the review of grants or dispositions of public land to establish their propriety or legality. The Commission had no mandate over disputes concerning the occupation, ownership, eviction, or title to private land. 50. The Affiant deponed that the dispute presented by the Petitioners was a classic private land dispute. The Petitioners claimed adverse possession, long-term occupation, and constitutional violations arising from threatened eviction by the registered proprietor. These were matters that fell squarely within the jurisdiction of the Environment and Land Court as between private parties, not matters for the Commission’s administrative intervention or adjudication. 51. The Affiant averred that the Commission had not harassed, intimidated, evicted, or demolished any properties belonging to the Petitioners. The allegations of harassment, unlawful arrests, and destruction of property were specifically directed at the 1st Respondent, Shumba Valley Conservancy, and in any event related to actions on private land in which the Commission had no involvement. 52. The Affiant stated that the Commission was therefore an unnecessary and improperly enjoined party to the proceedings. Its presence did not assist the Court in determining the real dispute between the Petitioners and the 1st Respondent over occupation and ownership of the suit property. 53. The Affiant deponed that in light of the above, the Commission did not wish to participate actively in the inter partes hearing of the Petitioners’ application or the main Petition, save to seek its removal from the proceedings on the ground of misjoinder. The Commission would abide by any orders of the Honourable Court as to costs. 54. The Affiant stated that what was deponed therein was true to the best of his knowledge, information, and belief. 55. **The Further Affidavit of the Petitioner** 56. The Petitioners filed an 11 Paragraphed further Affidavit sworn by Papaye Paul Lehongo, the 1st Petitioner on 22nd May, 2026 wherein the Affiant averred as follows that:- 57. He had keenly read and understood the 1st Respondent’s Response dated 11th May, 2026. 58. Neither of the Petitioners had been found to have destroyed the environment or the ecological system as alleged by the 1st Respondent, given that the Petitioners had for a long time peacefully coexisted with the wildlife in the same ecosystem, being at the forefront in advocating for preservation of the environment and the wildlife around them. 59. The alleged acts of poaching constituted criminal offences within the meaning of the Wildlife Management and Conservation Act and, as such, none of the Petitioners or those represented by them had been charged for such an offence, going by the evidence of the 1st Respondent. 60. Even though the 1st Respondent alleged that there was no evidence of interference with the suit property or harassment of the Petitioners, it was clear from the Response that the 1st Respondent was intent on taking over possession of the entire land, including the parcels occupied by the Petitioners. 61. Even with the existence of status quo orders, the 1st Respondent on 20th March, 2026 had undertaken a survey exercise with a view to subdividing the suit property. (Annexed in the affidavit and marked as “PPL – 1” was a bundle of photographs). 62. The 1st Respondent had confirmed that the Petitioners had been in occupation of the suit property for several years even before the 1st Respondent came into existence, and as such, their claim over the suit property was not fiction but an actual claim for continued infringement of their rights as occupiers of the suit property in priority over the 1st Respondent. 63. The 1st Respondent, through its servants, had continued to violate the status quo orders by harassing the Petitioners, assaulting them, as well as seizing their cattle without any basis, leading to the cattle being killed by lions—all with the aim of evicting the Petitioners from the suit property. (Annexed in the affidavit and marked as “PPL – 2” was a bundle of photographs). 64. Therefore it was of great importance that the orders sought in the application dated 11th February, 2026 be granted to preserve the substratum of the Petition herein. 65. The Affiant deponed that he had sworn the affidavit in further support of the Petitioners’ application dated 11th February 2026. 66. The Affiant stated that what was deponed therein was true to the best of his knowledge, information, and belief. 67. **Submissions** 68. While all the parties were present in Court, they were directed to have the Notices of Motion application dated 11th February, 2026 and 23rd March, 2026, be disposed of by way of written submissions. 69. Pursuant to that, the Petitioners and the 1st Respondent herein fuly complied. Unfortunately, by the time of penning down this Ruling, the Honorable Court had not been able to access any of the Submissions from the other parties from both the Judiciary CTS Portal nor the ELC Registry, Hence, it proceeded to deliver its Ruling on merit on 31st July, 2026 accordingly. 70. **The written submissions of the Petitioners in respect of the Petitioners’ Notice of Motion dated 11th February, 2026 and the 1st Respondent’s Notice of Motion dated 23rd March, 2026** 71. The Petitioners through the Law firm of Messrs. Mutinda & Wambura Nthiga Advocates, filed their written submissions dated 22nd May, 2026. M/s. Wambura Advocate submitted that before the Honourable Court was the Petitioners’ Notice of Motion application dated 11th February, 2026 and the 1st Respondent’s Motion dated 23rd March, 2026. The 1st Respondent’s Motion challenges the jurisdiction of this honourable court to hear and determine this suit on the grounds that this current suit was res Judicata a previous suit being Kwale Environment & Land Court ***“Petition No. 12 of 2021- Taireni Association of Mijikenda (Supra)”*** which was decided on 15th July, 2022. 72. On the other hand, the Petitioners vide the Notice of Motion application dated 11th February, 2026 seeks conservatory orders restraining the respondents from harassing, intimidating, evicting, demolishing the petitioner’s properties or interfering in any other manner with the petitioner’s occupation of the suit land formerly known as LR No. 16659-formerly registered as LR No. 14209 situated in Kinango Sub-County within Kwale County pending the hearing of the petition herein. In Response to the Petitioner’s application, the 1st Respondent filed a Replying Affidavit sworn by HUSSEIN UNSHUR MOHAMED dated 11th May, 2026 essentially opposing the Petitioner’s application. 73. The Petitioners filed a Replying Affidavit sworn by PAPAYE PAUL LEHONGO dated 17th April, 2026 in opposing the 1st Respondent’s application and a Further Affidavit dated 22nd May, 2026 in further support of the petitioners’ application. 74. On the issues for determination, the Learned Counsel submitted that from the pleading, the following issues arise for determination to wit; 75. ***Whether this petition is res judicata?*** 76. ***Whether the Petitioner’s Notice of Motion Application dated 11th February, 2026 is merited?*** 77. On whether the Petition herein was res judicata. The Learned Counsel submitted that the provision of Section 7 of the Civil Procedure Act, 2010 provides as hereunder: **“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. Furthermore, the Black’s law Dictionary 10th Edition defines **“Res Judicata**” as:- **“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”** 1. The key elements that would give rise to res judicata were identified in the case of ***“Uhuru Highway Development Ltd – Versus - Central Bank of Kenya [1999] eKLR”*** to include; ***“(a) the former judgment or order must be final;*** ***(b) the judgment or order must be on merits;*** ***(c) it must have been rendered by a court having jurisdiction over the subject matter and the parties; and*** ***(d) there must be between the first and the second action identity of parties, of subject matter and cause of action.”*** 1. Moreover, in the case of in ***“Okiya Omtatah Okoiti & another – Versus - Attorney General and Another Petition No 593 of 2013 [2014] eKLR”*** where Lenaola J. (as he then was) held as follows: ***“For res judicata to be invoked in a civil matter therefore, the issue in a current suit must have been decided by a competent court. Secondly, the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar. Thirdly, the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title. (See the case of Karia & another v Attorney General & others (2005) 1EA 83)…”*** 1. Further, the Supreme Court of Kenya in the case of ***“Kenya Commercial Bank Limited – Versus - Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR”*** held that; ***“Whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same;(iii) sameness of the title/claim;(iv) concurrence of jurisdiction; and (v) Finality of the previous decision.”(emphasis theirs)*** 1. It was the Learned Counsel submission that it was not disputed that there existed one previous suit. The Application and the Replying Affidavit confirms as such. However, at the onset, the previous suit involved quite a different cause of action as this suit. The ***“Kwale Environment & Land Court Petition No. 12 of 2021-Taireni Association of Mijikenda - Versus - Mwabeja Ranching Company Limited & 7 Others”*** which was decided on 15th July 2022 was a suit filed by the Taireni Association of Mijikenda against Eight (8) Respondents based on a claim of irregular grant of the suit land which was community land to a private person. 2. Importantly, the previous petition sought to have the court declare the suit land as community land mainly for the Duruma and Wattha Communities and have the grant issued to Mwabeja Ranching Company Limited by the president of the Republic of Kenya declared unconstitutional and unlawful amongst other prerogative orders. In contrast, this current suit, is mounted against the 1st Respondent and the other Respondents whom it is said have continued to violate the Petitioners’ property rights in the wake of their undisputed long and uninterrupted occupation of the suit land. 3. Essentially, this current suit seeks for orders that the Petitioner’s property rights over the suit land have crystallized by their long and uninterrupted occupation. Furthermore, the Petitioners as well seek an order for a resurvey of the suit land with a view to settling the petitioners herein on the parcels they currently occupy without any alterations and upon resurvey, the Petitioners be issued with title deeds in respect of those portions. 4. Notably therefore, this current suit seeks distinct prayers from the previous suit and raises serious fundamental issues as to the legality of the title held by the 1st Respondent vis-a-vis the established long occupation by the Petitioners of the suit property which were not available for determination by the court in the previous suit. It was this their humble submissions that since the previous suit concerned a different cause of action, different parties and sought distinct prayers as this present suit the plea of res judicata cannot stand and has no basis. 5. On whether the Petitioner’s Notice of Motion Application dated 11th February, 2026 was merited. The Learned Counsel submitted from a cursory reading of the Motion before the Honourable Court, the only issue that arises is whether the Petitioners are entitled to the orders sought therein. Such orders are conservatory in nature. The Supreme Court in the case of ***“Gatirau Peter Munya – Versus - Dickson Mwenda Kithinji & 2 others [2014] eKLR”*** established the threshold for grant of conservatory orders as follows: ***“[86] “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.*** ***[87] The issue before us, therefore, is whether this is a proper case where the interlocutory reliefs sought by the applicant should be granted. The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that:*** ***(i) the appeal or intended appeal is arguable and not frivolous; and that*** ***(ii) unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory. [88] These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely:*** ***(iii) that it is in the public interest that the order of stay be granted. [89] This third condition is dictated by the expanded scope of the Bill of Rights, and the public spiritedness that run through the Constitution.”*** 1. Notably, in the case of ***“Centre for Rights Education and Awareness (CREAW) & 7 others – Versus - Attorney General [2011] eKLR”*** it was held that: ***“It is important to point out that the arguments that were advanced by counsel and that I will take into account in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the Petitioner’s application and not the Petition. I will not therefore delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.”*** 1. When a court is called upon to determine whether a prima facie case has been established, it should not delve into a detailed analysis of the facts and law but should focus on determining whether the Applicant had put forward a case that is arguable and not frivolous. In the case of ***“Board of Management of Uhuru Secondary School – Versus - City County Director of Education & 2 others [2015] eKLR”*** the Court posited that: ***“It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis…”*** 1. Furthermore, in ***“Judicial Service Commission – Versus - Speaker of the National Assembly & another [2013] eKLR”*** the court expressed itself as follows: ***“Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only issue to a particular person.”*** 1. It has been clearly pleaded and confirmed by the 1st Respondent that the Petitioner have for a long period of time, been in occupation and use of the suit land. The Petitioners state that they occupied the suit land as early as the year 1940. Through that occupation and in confirmation of their presence, there have been public utilities that have been set up such as schools, churches and health care facilities. Despite their occupation, the Petitioners aver that the 1st Respondent procured registration of the suit land in its name as a private person through an unlawful process that did not take into account their views, interests and the fact of occupation of the same suit land. It was that process that violated the Petitioners’ rights and currently continues to risk their habitants. It is through the demonstration of the disregard of the Petitioners’ rights and interests over the suit land that the Petitioners’ case passes the prima facie test. 2. Furthermore, in the event the orders are not granted, it is very clear that the Petitioners will be removed and/or evicted by the 1st Respondent from the suit land, a place they have called home for decades now which eviction will cause irreparable harm not only to the Petitioners but to the vulnerable within their society such as school going children and the elderly. 3. On the aspect of public interest, the Petition herein concerns more or less the community living in the suit land. In the event the orders sought herein was not granted, the community herein, in the nature of the petitioners, will be rendered homeless and destitute without any recourse. The pleadings herein have stated with clarity the complaints, the provisions said to be infringed and the manner in which they have been infringed by the respondents per the decision in ***“Anarita Karimi Njeru – Versus - Republic (1979) eKLR”***. 4. They thus humbly submitted that the Petitioner’s Notice of Motion dated 11th February, 2026 was merited and should be allowed as prayed. 5. In conclusion, they urged to in the spirit of Article 159 (2) (d) and Article 50 (1) of the Constitution and in considering the substance of the suit and the resultant justice to the parties, find that the 1st Respondents motion dated 23rd March, 2026 herein is not merited and proceed to dismiss it and allow the Petitioners’ Motion dated 11th February, 2026 as prayed. 6. **The Written Submission of the 1st Respondent in support of the Notice of Motion application dated 23rd March, 2026 and Opposition to application dated 11th February 2026** 7. The 1st Respondents through the Law firm of Messrs. Sagana, Biriq & Muganda Advocates filed their written submissions dated 11th May, 2026. Mr. Biriq Advocate submitted that the Petitioners filed the Petition dated 11th February, 2026 together with an application, seeking injunctive orders against the Respondents, supported by the affidavit of Paul Papaye Lehongo sworn on the even date. On 16th February, 2026, this Honourable Court issued Ex - Parte injunctive orders pending the hearing and determination of the Petitioners' application. The 1st Respondent filed a Notice of Motion application dated 23rd March, 2026 seeking, ‘*inter alia”*, to set aside the Ex - Parte orders issued by the Court on 16th February, 2026, to strike out the entire suit, and for the costs of the application. 8. The 1st Respondent's Application is supported by the sworn Affidavit of Mohamed Abdikadir Adan, which raises three key grounds upon which the orders sought in the application should be granted, summarized as follows:- 9. The orders of 16th February, 2026 were obtained through material non- disclosure and have since been used by the Petitioners to destroy the conservancy that hosts endangered wildlife species and plants. The Petitioners have engaged in illegal hunting, poaching, and charcoal burning within the conservancy, thereby threatening its flora and fauna. 10. The Petition was *res judicata*. The subject matter, parties, and issues raised therein were conclusively determined by a court of competent jurisdiction in Kwale “***Taireni Association* of *Mijikenda (Supra)”***. 11. The Petition was barred by the doctrine of limitation of actions. 12. The Learned Counsel progressed further to state that the Petitioners filed a Replying Affidavit sworn by Papaye Paul Lehongo dated 17th April, 2026, in which they admit that the subject matter of the present suit is the same as that in Petition No. 12 of 2021. Their only contention in opposition to the Application was that some of the parties in the present matter are not the same as those in the previous Petition. The Honourable Court should note that the Petitioners have not rebutted the issue of poaching, hunting, charcoal burning, and destruction of the conservancy, nor had they addressed the issue of limitation of actions. There was glaring evidence of similarity between the two Petitions, including the participation of the 4th Petitioner herein, Chikophe Mwaruwa Kizao, whose identification documents are attached to both suits. 13. The 1st Respondent has opposed the application by the Petitioners vide the sworn Affidavit of Hussein Unshur Mohamed dated 11th May, 2026. The 1st Respondent submits that the entire Petition was defective and constitutes an abuse of the court process, and urges the Honourable Court to dismiss it in its entirety. 14. On the issues for determination, the Learned Counsel relied on the following: 15. ***Whether the Petition herein is res judicata*** 16. ***Whether the Orders of 16th February 2026 ought to be discharged.*** 17. ***Whether the suit is barred by the doctrine of limitation of actions.*** 18. ***Whether the Petitioners' application dated 11th February 2026 has merit.*** 19. On the analysis of the issues and whether the Petition was res judicata. The Learned Counsel submitted that Sometime in 2020, a group of individuals acting under the auspices of Taireni Association of Mijikenda filed a Petition before the Environment and Land Court at Mombasa, being Petition No. 8 of 2020. The suit was later transferred to Kwale Environment and Land Court being “***Taireni Association of Mijikenda versus Mwambeja Ranching Company Limited* *(Supra)”*** (See annexure marked as “MAA – 3” of the 1st Respondent's documents). The said Petition ("previous Petition") was instituted as a representative suit on behalf of persons from Duruma, Wattah, Maasai, and Kamba communities who were residing on portions of land registered as L.R. No. 16659 (formerly LR No. 14209) 20. In paragraph 40 of the Petition (see pages 56 and 88 of the 1st Respondent's documents), the individuals who were members of the Petitioners are listed, and they included the 4th Petitioner in this suit (see page 34 of the Petitioners' documents), Chikophe Mwaruma Kizao, with a copy of his national identity card (ID) attached as evidence in the said Petition (see page 81 of the 1st Respondent’s documents). All the Respondents in the current Petition were also Respondents in the previous Petition. The previous Petition was heard with all the parties making their respective representations before the Court. On 15th July, 2022, Hon Lady Justice A. E. Dena dismissed the said Petition for lack of merit (see annexure marked as “MAA – 4” of the 1st Respondent's documents). 21. The Learned Counsel further stated that the judgment in Petition No. 12 of 2021 was a bar to any subsequent suits before any Court of concurrent jurisdiction, including the current one, based on the same cause of action, same parties, and the same subject matter under the doctrine of res judicata. The Petitioners herein in the Replying Affidavit dated 17th April, 2026, sworn by Papaye Paul Lehongo, allege that the previous suit involved parties that were different from those who instituted the present suit, the cause of action was also different, and the claim is against a different property owner. There is no explanation of these allegations or a rebuttal to any of the issues raised in the 1st Respondent's application. 22. The current Petition was filed by individuals claiming to ‘bring this Petition on their own behalf and on behalf of 400 others and for the benefit of their community members who inhabit the suit land herein’ (see paragraph 1 of the Petition). The communities they represent include the Duruma, the Wattah, the Maaasai and Mrondo, and the suit land is the same as it was in the previous Petition, L.R. No. 16659 (formerly L.R. No. 14209). In paragraph 3 of the said Replying Affidavit dated 17th April 2026, the Petitioners admit that the previous suit ‘was filed by Taireni Association of Mijikenda mainly in protection of the Mijikenda interests over the suit property drawn from Duruma and Watta communities’ and that both suits ‘touched on the subject matter.’ 23. In paragraph 1 of the Judgment in Petition 12 of 2021, the Court pointed out that "the Petitioners, Taireni Association of Mijikenda describe themselves as a national association registered specifically for the purpose of empowering the Mijikenda community, advocacy, organizing and educating the community. The subject of this Petition is land registered as LR 16659 - formerly registered as LR No. 14209 (herein the suit property). It was said to be situated in Kinango sub-county Puma Ward within Kwale county. It is alleged that Duruma community mostly of the Mwambeja clan and other communities which joined them later have been in continuous occupation of the same for more than a century. The Petition is also instituted on behalf of these communities.’ (page 101 of the 1st Respondent's documents). 24. The Court was clearly conscious of the fact that representative suits on behalf of communities, often brought under provisions similar to the provision of Order 1 Rule 8 of the Civil Procedure Rules, are designed to bind the entire community or group represented, rather than just the individuals named in the lawsuit. The judgment or decree passed in such a suit binds the represented class, including those who were not present in court or did not appear. 25. As was in Petition 12 of 2021, the current Petition is filed on behalf of the same communities who claim that they have occupied the suit land since the years 1940s. They also claim the land to be a community land, and have been in continuous occupation and use of the suit land. The Petitioners allege facing harassment, intimidation, arrests, and forceful eviction by the 1st Respondent. The Petitioners are seeking recognition as owners of the portion of land they occupy. The current Petition is thus a mirror image of the previous Petition. The law dictates that if the core issue was previously decided by a competent court between the same parties or privies, it cannot be reopened, even if the new suit is framed differently. 26. According to the Learned Counsel, the principle of res judicata serves a crucial purpose, to bar repeated litigation over the same issue once conclusively decided. As stated under Section 7 of the Civil Procedure Act, 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 their privies, litigating under the same title, before a competent court. 27. The provision of Section 7 explanation 6 of the Civil Procedures Act, Cap. 21 further provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 28. The Petitioners had cosmetically changed or altered the pleadings to hide the similarity of suits or disguised the fact that they were trying to revive a decided matter in an attempt to evade the doctrine of res judicata. They had endeavored to add, subtract or metamorphose parties to make this suit appear different from the former. They had re - phrased the prayers to appear different while the substratum of the dispute is the same, or bring a new legal claim that could have been brought in the previous suit. They had attempted to introduce or conjure new issues that were already covered or could have been raised previously. In all commonwealth jurisdictions, when a litigant tries to obfuscate the connection between suits, courts look at the true substance of the suit rather than its form. In essence, courts will look beyond the technical, superficial changes in the new suit (such as added parties or altered pleadings) and examine the substance of the dispute. 29. The Learned Counsel referred the Court to a decision by Justice Olola in ***“Waugh (Suing on behalf of the Estate of the Late Peter Waugh) – Versus - Kiiru & 3 others [2025] KEELC 899 (KLR)”*** where he observed as follows:- ***“13.As was stated in Nancy Mwangi T/A Worthlin Marketer -- Versus - Airtel Networks (K) Ltd. & 2 Others (2014) eKLR:"The court must always be vigilant to guard against litigants evading the doctrine of res-judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the Plaintiff in the second suit is trying to bring before the Court in another way and in another form a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi – Versus - National Bank of Kenya Limited & Others (2001) EA 177 the court held that, 'Parties cannot evade the doctrine of res-judicata by merely adding other. parties or causes of action in a subsequent suit. In that case the court quoted Kuloba J., in the case of Njagu -Versus - Wambugu & Another, Nairobi HCCC No. 2340 of 1991 (unreported) where he stated that, 'If parties were allowed to go on litigation forever over the same issue with the same opponent before a court of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res-judicata...”*** 1. In the instant matter, the parties and the suit remain the same. The Applicant herein had earlier on applied for stay of execution orders which application was rejected by this very court. In her new application she has sought a review of the earlier orders and for the same order of stay of execution to be granted. This court is however reminded that the doctrine of Res-Judicata cannot be defeated by a party merely giving her case some cosmetic face lift by introducing a new prayer in the same application. 2. Addressing the above scenario, the Court in ***“John Michael Wanjao – Versus - George Kimetto & 2 Others [2014] KEELC”***, held that if a subsequent suit is a disguise to pass off as new, while essentially being the same as the former suit, it must be dismissed as res judicata. The court emphasized that issues that could or ought to have been raised in the former suit cannot be litigated in a later one. Hon. Justice Sila Munyao (as he then was) concluded by stating that: ***“My own view of this matter therefore is that although the issues being raised appear different, and the parties seem different, those issues could and/or ought to have been a ground of attack in the previous suit, and in my view the addition of the other two parties is a disguise to pass off this suit as a suit raising new issues. There is no new issue which could not have been raised in the former suit. This suit in my view is clearly caught up by the doctrine of res judicata and I do not hesitate to declare it as res judicata.”*** 1. The Supreme Court in the case of ***“John Florence Maritime Services Ltd & Another – Versus - Cabinet Secretary Transport and Infrastructure & 3 Others, Petition 17 of 2015 (2021) KESC 39 KLR (Civ)”*** established the principles to be met in a case for res judicata and stated as follows: ***[59] For res judicata to be invoked in a civil matter, the following elements must be demonstrated:*** ***a) There is a former Judgment or order which was final;*** ***b) The Judgment or order was on merit;*** ***c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and*** ***d) There must be between the first and the second action identical parties, subject matter and cause of action."*** 1. The Petition herein meet the threshold as established by the Supreme Court in the above case, for the reasons that, first, the previous suit (Petition No. 12 of 2021) was heard and determined on its merit, second, a judgment was delivered on 15th July 2021 which was neither reviewed nor appealed, third, the current parties or their privies were parties in Petition No. 12 of 2021, fourth, the cause of action in both suits are the same, fifth, the subject matter in the two suits are the same and finally, the reliefs sought in the Petition herein are substantially identical to those in the previous suit. 2. It was clear from the foregoing that the language, formation, the historical narration, the grievances, the prayers sought and the parties in both suits are the same despite the tremendous attempt or effort to camouflage. 3. The Supreme Court in the case of in ***“John Florence Maritime Services Limited (Supra)”***, stated at paragraph 58 that:- ***"This Court in the case of Kenya Commercial Bank Limited – Versus - Muiri Coffee Estate Limited & another Motion No. 42 of 2014 [2016] eKLR (Muiri Coffee case) held as follows regarding the doctrine of res judicata:*** ***"[52] Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon. Norbert Mao – Versus - Attorney-General, Constitutional Petition No. 9 of 2002; [2003] UGCC3, the Petitioner brought an action on behalf of 21 persons from his constituency, for declarations under Article 137 of the Uganda Constitution, and for redress under Article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the Petitioner, another action had already been filed under Article 50, seeking similar relief; and Judgment had been given in Hon. Ronald Reagan Okumu – Versus - Attorney - General, Misc. Application No.0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the Petition, on a plea of res judicata, declining the Petitioner's pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment. (Emphasize is mine)*** ***[53] In Silas Make Otuke – Versus – Attorney - General & 3 Others, [2014] eKLR, the High Court of Kenya agreed with the Privy Council decision in Thomas – Versus - The AG of Trinidad and Tobago (1991) LRC (Const.) 1001, in which the Board was “satisfied that the existence of a constitutional remedy as that upon which the appellant relies does not affect the application of the principle of Res Judicata”.*** ***[54] The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.” (Emphasize is not mine)*** 1. The Learned Counsel went further to quote the Supreme Court at paragraph 59 of the Judgment which emphasized that:- ***“That Courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in E.T – Versus - Attorney - General & Another, (2012) eKLR, thus: -*** ***“The Courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the Court. The test is whether the plaintiff in the second suit is trying to bring before the Court in another way and in a form of a new cause of action which has been resolved by a Court of competent jurisdiction. In the case of Omondi – Versus - National Bank of Kenya Limited and Others, (2001) EA 177 the Court held that, 'parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.' In that case the Court quoted Kuloba J., in the case of Njangu – Versus - Wambugu and Another Nairobi HCCC No.2340 of 1991 (unreported) where he stated, 'If parties were allowed to go on litigating forever over the same issue with the same opponent before Courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to Court, then I do not see the use of the doctrine of res judicata.....”*** 1. The Learned Justices of the Supreme Court concluded at paragraph 65 of the Judgment by stating that:- ***“Simply put Res - Judicata is essentially a bar to subsequent proceedings involving same issue as had been finally and conclusively decided by a competent Court in a prior suit between the same parties or their representatives.”*** 1. The High Court of South Africa (Western Cape Division, Cape Town) in the case of:- ***“Technical Systems (Pty) Limited – Versus - RTS Industries & 4 others (Case No. 5288/2020)”***, the Court held that:- ***“[15] It is trite that the onus rests upon the party relying on Res - Judicata to prove it. It is equally trite that the requirements for proof are (a) a final and definitive prior Judgment or order; (b) given in litigation to which the current parties or their privies were parties; and (c) the cause of action in both cases must be the same, and the same relief must, or may, have been claimed in both cases.”*** 1. Hon. Lady Justice Dena concluded in her Judgment in Petition No. 12 of 2021 (see page 123 of the 1st Respondent’s documents) thus:- ***“[89] .......Based on the provisions of the law in definition of unalienated government land and the process through which the same would be allocated, it is my finding that the land was unalienated government land and therefore the allocation to the 1st respondent was procedural and as per the confines of the provisions of the law back then. The court places reliance on the evidence adduced by the witnesses with regards to the process through which the land was allocated.*** ***[90] The land has also been referred to as private land having been transferred by sale to the 2nd Respondent, they are bona - fide purchasers for value and became the absolute owner of the property. The 2nd Respondent is protected under section 25 of the Land Registration Act and section 99 of the Land Act 2012. This title can only be impeached on the basis of fraud for which the 2nd Respondent is proved to have been aware of or party to. There are no allegations of fraud that have been specifically pleaded and particularized as against the 2nd Respondent to the required standard which is also higher than that of a balance of probabilities as was the holding in Ratil Patel – Versus - Lalji Makanji EA (1957) and Virjay Marjania – Versus - Nansigh Dardar & another (2000) eKLR.*** ***[91] I agree the 2nd Respondent must also be protected on its right to own property and which it has demonstrated was procedurally acquired. The matter has already been dealt with conclusively in Nairobi HCC No. 566 of 2013 Mwambeja Ranching Company Limited & another – Versus - Kenya National Capital Corporation [2019] eKLR. I will not disturb the finding as I have no such jurisdiction it is actually res judicata. Having made this finding, the only jurisdiction is to deal with the constitutional issue on whether the rights of the communities have been infringed upon which I have found in the negative.”*** 1. This reference by the Learned Judge indicates that there was a prior suit, Nairobi HCC No. 56 of 2013. That matter determined the issue of ownership of the suit property, and the Judge properly declined to revisit those issues on the basis that they were res judicata. The 1st Respondent urges the Honourable Court to find that this suit was Res Judicata and could not be relitigated. 2. On the issue of whether the orders of 16th February, 2026 ought to be discharged. The Learned Counsel submitted that the 1st Respondent submitted that the Ex - Parte orders issued by this Honourable Court on 16th February, 2026 had been exploited by the Petitioners to the detriment of the conservancy. In particular, the Petitioners had engaged in unlawful activities, including poaching and killing wildlife, destruction of endangered indigenous flora for commercial gain, and charcoal burning, all of which had led to large-scale deforestation within the conservancy (see annexure as “MAA – 2” of the 1st Respondent’s documents). 3. The Petitioners failed to make full and frank disclosure when obtaining the said orders, thereby concealing material facts that have significantly affected the conservancy. Notably, they did not disclose that the issues raised in the present Petition had previously been litigated in Petition No. 12 of 2021. 4. The entire proceedings herein was an abuse of court process, and the Honourable Court should discharge and dismiss the Petition immediately. On this point, the Learned Counsel buttressed it through the case of:- ***“Republic – Versus - Chief Magistrate, City Court (T.W. Murigi) & another ex parte Carron Creations Ltd & another [2016] KEHC 3250 (KLR)”***, Justice Odunga held as follows:- ***43. For a party to fail to disclose material facts or to disclose them in such a way as to mislead the court as to the true facts, amounts to abuse of the Court process and the court ought, for its own protection and to prevent an abuse of the process, to refuse to proceed any further with the examination of the merits.*** ***44. In this case it was contended that the applicants failed to disclose the existence of Judicial Review Miscellaneous Application No. 411 of 2015 instituted on 23rd November, 2015 which raised issues directly a substantially similar to the issues raised herein. Copies of the said. proceedings were exhibited to these proceedings and it is clear that the parties are the same. The said proceedings were commenced on 23rd November, 2015. The closing order which is the subject of these proceedings was issued on 10th November, 2015. From the said earlier proceedings it is clear that the Applicants were put on notice that a closing order had been issued by the time they commenced the said earlier proceedings.*** ***45. No reason has been given why the orders now being sought in these proceedings were not sought in the earlier proceedings. It is not explained to the Court why, if it was necessary to institute these proceedings, the said earlier proceedings were not deemed fit to be withdrawn before these proceedings were instituted. In fact the applicants have maintained a "deafening silence" both in their pleadings and in the submissions about the existence of those earlier proceedings as if those proceedings do not exist.*** ***46. In my view the failure by the applicant to disclose the existence of the said earlier proceedings not only amounts to non-disclosure of material facts but is also an abuse of the process of the Court which cannot be countenanced.*** 1. As demonstrated by the photographic evidence annexed by the 1st Respondent, the Petitioners, together with the persons they purport to represent in this suit, have caused destruction to the conservancy that is irreparable. The continued subsistence of the orders has far-reaching consequences, including the threatened extinction of indigenous wildlife and ongoing deforestation in the region, the effects of which cannot be remedied. 2. The Learned Counsel further submitted that the Ex - Parte orders had been abused by the Petitioners, and the Honourable Court should decline any further protection to them. In fact, the numerous complaints in their application were made in bad faith and for extraneous purposes. The allegations of eviction, forceful displacement, arbitrary arrest or demolition of properties are not true and were also addressed conclusively by the Honourable Court in Petition No. 12 of 2021 (See paragraph 52 of the judgment at page 112 of the 1st Respondent's documents). The Learned Counsel prayed for the orders of 16th February, 2026 to be discharged without further delay. 3. On whether the suit is barred by the doctrine of limitation of actions. The Learned Counsel asserted that the Petitioners alleged that they occupied the suit property in the year 1940. The Petitioners allege in Paragraphs 7 and 9 of the Petition that they have stayed in the suit property for more than 60 years, having first settled in the area in 1940. According to the Learned Counsel, from the Petitioners' own admission, considerable time has lapsed, yet they did not lodge any cause of action claiming any rights to the suit property within the statutory timelines. 4. The provision of Section 7 of the Limitation of Actions Act, Cap 22, provides that an action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. 5. The Courts have pronounced themselves on the doctrine of limitation of action in recovery of land and downed their tools where the suit was filed beyond the statutory timelines. In the case of:- ***“Kipsongok Arap Chepsiror – Versus - William Kurgat & 5 others [2022] KEELC 1573 (KLR)”***, the Court observed as follows:- ***“The Plaintiff slept on his right to recovery of land as no reasonable explanation has been tendered on why he did not pursue this claim in the 1970's. The ground has shifted and granting the Plaintiff orders sought for would occasion injustice to the land owners who are in Occupation pursuant to the subdivisions and the transfers. The court notes that the land owners were also not sued as this was a scheme with many shareholders as confirmed by both the Plaintiffs and the Defendants including the Land Registrar who gave evidence that they prepared the titles according to the members' register given by the officials of the Chesegem farm. In the case of Bosire Ongere – Versus - Royal Media Services (20154) eKLR Justice R.E. Aburili held that: -*** ***“The law of Limitation of Actions is intended to bar the Plaintiffs from instituting claims that are stale and aimed at protecting Defendants against unreasonable delay in the bringing of suits against them. The issue of Limitation goes to the jurisdiction of court to entertain claims and therefore if a matter is statute barred, the court has no jurisdiction to entertain the same. And even if the issue of Limitation is not raised by a party to the proceedings, since it is a jurisdictional issue, the court cannot entertain a suit which it has no jurisdiction over.”*** 1. The Learned Counsel further averred that the suit herein was statute-barred, which goes to the jurisdiction of the Court. The Petitioners cannot claim rights on a property which is rightfully owned by the 1st Respondent and enjoy the protection of the Honourable Court. As such, the 1st Respondent pleads with the Honourable Court to dismiss the suit immediately. 2. On whether the Petitioners’ application dated 11th February, 2026 has merit. The Learned Counsel submitted that the Applicant filed an application dated 11th February, 2026 seeking orders to restrain the Respondents from harassing, intimidating, evicting, demolishing the Petitioners' properties, or interfering with the Petitioners' occupation of the property known as No. 16659 (formerly known as L.R No.14209). The 1st Respondent filed a Replying Affidavit sworn by Hussein Unshur Mohamed on 11th May, 2026, opposing the application and urging the Honourable Court to dismiss the same for being res judicata and an abuse of court process. 3. The issues raised in the application were res judicata. The 1st Respondent reiterates that the issues raised in the application are res judicata and had been considered and determined in Petition No. 12 of 2021. 4. The second issue is that the Petitioners had not established a prima facie case. The Learned Counsel submitted that it is undisputed that the suit property, being L.R No. 16659-formerly LR No. 14209, belongs to the 1st Respondent, and the Petitioners have no legal or proprietary interests in the property. The 1st Respondent submitted that conservatory orders could not be used to prevent a lawful owner from taking possession of their property. The Court in the case of:- ***“Francis Kimathi Mutisya & 173 Others – Versus - Nairobi City County Government & Another [2021] KEELC 1279 (KLR)”***, observed as follows:- ***“In my humble view, the grant of orders of temporary injunction sought, would be tantamount to restraining the owners of the land from assuming and taking possession of the said land and such kind of a situation, would be inimical to law, public policy, and public order, and thus the same would be unfathomable.*** 1. According to the Learned Counsel, the Petitioners had not established a prima facie case with a probability of success. The 1st Respondent urges the Honourable Court to decline exercise of jurisdiction in this matter and dismiss the application with costs. 2. On whether or not the Petitioners had met the standard of proof. The Learned Counsel submitted that the Petitioners had not met the standard of proof for the grant of the conservatory orders. There was no evidence tabled before the Honourable Court on harassment, intimidation, eviction, and unlawful arrest of the Petitioners as alleged. The allegations were speculative, and no basis had been tendered by the Petitioners. The Court of Appeal in the case of:- ***“Nguruman Limited – Versus - Nielsen & 2 others [2014] KECA 606 (KLR)”*** held as follows: ***29.On the second factor, that the applicant must establish that he ‘might otherwise’ suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury.*** ***Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot "adequately" be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be an adequate remedy.*** 1. The Learned Counsel went further to state that it is a trite law that whoever alleges must prove a requirement under the provision of Sections 106, 107 and 108 of the Evidence Act, Cap. 80 on “**the Burden of Proof”**. The Petitioners had not discharged this burden, and therefore, the Honourable Court could not grant the orders sought in the application dated 11th February ,2026. 2. In conclusion, the Learned Counsel submitted that the 1st Respondent had demonstrated that the instant suit was res judicata, the issues herein having been conclusively determined by a court of competent jurisdiction in Petition No. 12 of 2021. This Honourable Court could not re - open those issues merely because the Petitioners had given their Petition a cosmetic facelift. The 1st Respondent urged this Honourable Court to discharge the orders issued on 16th February, 2026, the same having been obtained through material non - disclosure of facts and with ulterior motives aimed at the destruction of the conservancy. 3. The Learned Counsel opined further that the application dated 11th February, 2026 lacked merit and amounted to an abuse of court process. The 1st Respondent urged the Honourable Court to dismiss the application with costs. 4. Finally, this suit was barred by the doctrine of limitation of actions, which went to the very jurisdiction of this Court to entertain the matter. As this Court was well aware, jurisdiction was everything; without it, a court had no power to take even one more step. A court's jurisdiction flows from either the Constitution or legislation, or both, and could not be expanded through judicial craft or innovation. See ***“Owners of the Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Ltd [1989] eKLR”***. The Learned Counsel humbly prayed that the 1st Respondent’s application dated 23rd March, 2026 be allowed as prated and that the Petition pending before this Honourable Court be dismissed in its entirety. 1. **The Written Submissions by the 2nd Respondent on the Petitioners Application dated 11th February, 2026 and 1st Respondent’s Application dated 23rd March, 2026** 2. The 2nd Respondent through the director of Legal Affairs, National Land Commission, filed their written submissions dated 2nd July, 2026. They submitted that the 2nd Respondent, the National Land Commission (hereinafter "the Commission"), is a constitutional body established under Article 67(1) of the Constitution of Kenya, 2010. Its mandate and functions are set out in Article 67 (2) of the Constitution and Section 5 of the National Land Commission Act, No. 5 of 2012. The Commission has been joined as the 2nd Respondent in these proceedings where the Petitioners seek conservatory orders to restrain their eviction from the suit property, while the 1st Respondent sought to set aside the said orders and strike out the Petition on grounds of res judicata and limitation of actions. 3. These consolidated submissions were filed on behalf of the Commission to address both pending applications. The Commission's primary contention was that it had been improperly enjoined in these proceedings, as the dispute related to private land over which the Commission had no constitutional or statutory mandate. 4. On the commission’s position. The Learned Counsel submitted that: 5. The suit property, LR No. 16659 (formerly LR No. 14209) , is registered in the name of the 1st Respondent, Shumba Valley Conservancy, as evidenced by the Certificate of Title marked as "MAA - 1" in the Supporting Affidavit of Mohamed Abdikadir Adan. Further, the Petitioners themselves acknowledge this. In paragraph 5 of their Supporting Affidavit, they state that “there came Mwambeja Ranch which was followed by Shimbaland Ranching in the year 2013 followed by Shumba Valley Conservancy, the 1st Respondent who acquired the suit land.” 6. The Petitioners did not dispute that the 1st Respondent held a Certificate of Title over the property. By virtue of such registration, the suit property constitutes private land as defined under Article 64 of the Constitution of Kenya, 2010. 7. The Commission's mandate was confined to public land and never extended to disputes concerning private land. 8. The Commission is therefore improperly enjoined in the suit and prays to be struck out of these proceedings. 9. On the submissions on the Petitioners’ application, the Learned Counsel submitted that it was not in that the suit property, LR No. 16659 (formerly LR No. 14209), was registered in the name of Shumba Valley Conservancy the 1st Respondent. This was evidenced by the Certificate of Title exhibited as “MAA - 1” in the Supporting Affidavit of Mohamed Abdikadir Adan. 10. Under the provision of Article 64 of the Constitution of Kenya, 2010 defines private land as follows:- **“Private land consists of:-** **(a) registered land held by any person under any freehold tenure; (b) land held by any person under leasehold tenure; and (c) any other land declared private under an Act of Parliament.”** 1. According to the Learned Counsel, the suit property, being registered land held by the 1st Respondent under a grant/leasehold tenure, falls squarely within the definition of private land. 2. Under the provision of Article 67 (2) of the Constitution of Kenya, 2010 sets out the functions of the National Land Commission as follows; **(a) to manage public land on behalf of the national and county governments; (b) to recommend a programme of registration of all public land; (c) to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress; (d) to encourage the application of traditional dispute resolution mechanisms in land conflicts;** **(e) to assess tax on land and premiums on immovable property in any area designated by law;** **(f) to monitor and have oversight responsibilities over land use planning throughout the country;** **(g) to carry out functions that Parliament may enact.”** 1. The provision of Section 5 of the National Land Commission Act, No. 5 of 2012 reiterates these functions and further provides that the Commission’s mandate over land management is confined to public land. The Commission has no constitutional or statutory mandate over private land disputes. The Commission cannot adjudicate on ownership, occupation, eviction, or title to private land. These are matters that fall squarely within the jurisdiction of the Environment and Land Court under the provision of Article 162 (2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011. 2. The instant dispute, being between private parties, the Petitioners claiming occupation rights against the registered proprietor, the 1st Respondent, is a matter for determination by this Honourable Court. The Court of Appeal in ***“In the Advisory Opinion of the National Land Commission (Advisory Opinion Reference No. 2 of 2014) [2015] KECA 16 (KLR)”***held that the Commission's mandate is limited to public land and does not extend to private land disputes. The Court stated: ***‘The National Land Commission is a constitutional body with specific functions under Article 67(2) of the Constitution. Those functions are limited to public land.’*** 1. In the case of:- ***“Republic – Versus - National Land Commission & 2 others Ex - Parte Magnate Ventures Limited [2018] eKLR”***, the Court held that the National Land Commission exceeded its mandate by purporting to determine a dispute between two private parties over private land. The Court stated: ***“The jurisdiction of the National Land Commission as far as reviewing of grants and dispositions in land is concerned is limited to public land as defined in the Constitution... The National Land Commission had no jurisdiction to hear and determine the complaint raised by the interested party.”*** 1. This Honourable Court according to the Learned Counsel has the power to strike out improperly joined parties. The Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010 provides:- **“The court may at any stage of the proceedings, either upon or without the application of either part, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendants, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”** 1. In the case of:- ***“Peter Njenga Kamau t/a Penar Interconsumer Products – Versus - Ecolab INC & another [2023] KEHC 18858 (KLR)”***, the court held:- ***“It is well settled that a necessary party is one against whom there is a direct and real right or interest in the reliefs sought or one whose presence is necessary for purposes of passing an effective decree. The party must be present for the court to effectually and completely adjudicate upon and settle all the questions involved in the suit.”*** 1. Therefore, the presence of the Commission is not necessary for the Court to effectually and completely adjudicate upon the dispute between the Petitioners and the 1st Respondent. The Petitioners' claim for conservatory orders against eviction and their claim for adverse possession by long occupation can be fully determined without the Commission's involvement. Further, the Petitioners have not particularized any specific acts of violation attributable to the Commission. The allegations of harassment, intimidation, eviction, and destruction of property are directed at the 1st Respondent. The Petitioners also seek an order for re-survey and issuance of title deeds. The Commission has no mandate to conduct surveys on private land or to issue title deeds for private land. The Chief Land Registrar the 4th Respondent is the statutory officer responsible for land registration under the Land Registration Act, 2012. 2. In light of the foregoing submissions, the Commission respectfully prayed that this Honourable Court be pleased to strike out the name of the 2nd Respondent from these proceedings on the ground that the Commission is an improperly enjoined party, as the suit property is private land over which the Commission has no mandate under Article 67(2) of the Constitution and Section 5 of the National Land Commission Act, 2012. In the alternative, excuse the Commission from active participation in the inter partes hearing of both applications and the main Petition, order that the costs of these proceedings as against the Commission be borne by the Petitioners or, in the alternative, that each party bears its own costs. 3. On the submissions for the 1st Respondent’s Application, the Learned Counsel submitted that the 1st Respondent has filed a Notice of Motion application dated 23rd March, 2026 seeking, inter alia, to set aside the Ex - Parte orders issued on 16th February, 2026 and to strike out the Petition on grounds of res judicata, material non-disclosure, and environmental degradation. The Commission respectfully submitted that it takes no position on the merits of the 1st Respondent's application. The dispute between the Petitioners and the 1st Respondent is a private land dispute concerning occupation, eviction, and alleged constitutional violations arising from threatened dispossession. 4. According to the Learned Counsel, the allegations of poaching, charcoal burning, and environmental destruction leveled by the 1st Respondent against the Petitioners were criminal allegations falling under the jurisdiction of the Kenya Wildlife Service, the Director of Public Prosecutions, and the relevant courts. While the Commission took no position on the *res judicata* argument raised by the 1st Respondent, it was informative to note that the Commission was a party in the previous suit, ***“Kwale ELC Petition No. 12 of 2021 – Taireni Association of Mijikenda (Supra)”***. 5. The Learned Counsel further went ahead to state that upon a cursory review of the said judgment annexed as “MAA - 4” to the 1st Respondent’s Supporting Affidavit, the following observations were made:- 6. The previous petition involved the same suit property LR No. 16659 (formerly LR No. 14209). 7. The previous Petitioners claimed that the Duruma community and other communities had been in continuous occupation of the suit property for more than a century. 8. The previous Petition was dismissed by Hon. Lady Justice A. E. Dena on 15th July, 2022. 9. The Court declared that the grant issued to Mwambeja Ranching Company Limited was regularly issued and upheld the 2nd Respondent’s title. 10. According to the Learned Counsel, the Court also made orders for the excision of portions described as “B” and “C” measuring 1,878.2 hectares and 3,479 hectares respectively to be surrendered to the County Government of Kwale for settlement of the residents. The Commission noted that the current Petition involves the same suit property as in Petition No. 12 of 2021, Similarly constituted parties. The current Petitioners claim through the same communities Waatha, Duruma, Maasai who were represented in the previous suit. Similar prayers including declarations of rights to property, orders restraining eviction, and orders for re-survey and issuance of title deeds were also sought. 11. According to the Learned Counsel, the doctrine of *res judicata*, codified under the provision of Section 7 of the Civil Procedure Act, Cap. 21. In the case of ***“Mburu Kinyua – Versus - Gachini Tuti [1978] KLR 69”***, the Court held that the mere addition of parties in a subsequent suit does not render the doctrine of res judicata inapplicable, as parties cannot escape the said doctrine by simply undertaking a cosmetic surgery to their pleadings. The Court in ***“Mburu Kinyua (supra)”*** further held: ***“If the added parties peg their claim under the same title as the parties in the earlier suit, the doctrine will still be invoked since the addition of the party would in that case be for the sole purpose of decoration and dressing and nothing else.”*** 1. In conclusion, the Learned Counsel submitted that the Commission is a constitutional body with a specific mandate over public land. The suit property was private land. The Commission has no mandate over private land disputes. The Commission has been improperly enjoined in these proceedings and ought to be struck out. The Commission urged this Honourable Court to protect it from being drawn into disputes that fall outside its constitutional mandate, as this constitutes an abuse of the court process and unnecessarily expends public resources. 2. In conclusion, the Commission held that it would abide by any other orders that this Honourable Court may deem just and expedient in the interests of justice. 3. **Analysis and Determination** 4. The Honourable Court carefully read and considered the Notice of Motion application dated 11th February, 2026 filed by the Petitioners/Applicants, Papaye Paul Lehongo and others, together with the Supporting Affidavit sworn by Papaye Paul Lehongo and the annexures thereto. The Court equally considered the Notice of Motion application dated 23rd March, 2026 filed by the 1st Respondent, Shumba Valley Conservancy, supported by the Affidavit sworn by Mohamed Abdikadir Adan, and the objections raised therein. The Court also took into account the Replying Affidavit sworn by the Petitioners in opposition to the 1st Respondent’s application, the grounds of opposition filed by the Respondents, and the relevant statutory provisions and judicial authorities cited. 5. In order to arrive at an informed, reasonable, fair, Just and Equitable decision, the Court has condensed the subject matter into the following seven (7) salient issues for determination: - 6. ***Whether the Petitioners/Applicants have demonstrated sufficient proprietary interest and legal stake in LR No. 16659 (formerly LR No. 14209) to warrant preservation of the suit property pending trial;*** 7. ***Whether the Notice of Motion application dated 23rd March, 2026 by the 1st Respondent is merited, particularly on the basis of Section 7 of the Civil Procedure Act, Cap. 21 (Doctrine of Res Judicata), “functus officio”, and the jurisdictional limits of this Honourable Court;*** 8. ***Whether the Petitioners’ claim of historical occupation and alleged breaches of constitutional rights under Articles 27, 28, 29, 40, 43 and 60 of the Constitution can be distinguished from the matters conclusively determined in Kwale ELC Petition No. 12 of 2021 (Taireni Association of Mijikenda – Versus - Mwabeja Ranching Company Ltd & 7 Others);*** 9. ***Whether the Ex - Parte injunctive orders issued on 16th February, 2026 were obtained through material non‑disclosure and whether they ought to be set aside.*** 10. ***Whether the balance of convenience and the overriding objective under Sections 1A and 1B of the Civil Procedure Act, Cap. 21 in favour of preservation of the suit property through injunctive and inhibitory orders, or whether such relief would amount to unlawful deprivation of rights of a registered proprietor under Section 26 (1) of the Land Registration Act, Cap. 21.*** 11. ***Whether the Petition is barred by limitation under Section 7 of the Limitation of Actions Act, Cap. 22, Laws of Kenya.*** 12. ***Who ought to bear the costs of the applications dated 11th February, 2026 and 23rd March, 2026.*** ***ISSUE No. a). Whether the Petitioners/Applicants have demonstrated sufficient proprietary interest and legal stake in LR No. 16659 (formerly LR No. 14209) to warrant preservation of the suit property pending trial.*** 1. Under this sub‑title, the main issue here is whether the Petitioners/Applicants have demonstrated sufficient proprietary interest and legal stake in LR No. 16659 (formerly LR No. 14209) to warrant preservation of the suit property pending trial. 2. The Petitioners asserted that they and their forefathers had occupied the suit land since the 1940s, with successive communities—Waatha, Duruma, Maasai, and Mrondo—settling there over decades. They deponed that they had established villages, schools, dispensaries, dams, and burial grounds, and that their occupation had been uninterrupted until the 1st Respondent commenced fencing and demarcation in 2020. They argued that by virtue of long, continuous occupation, they had acquired rights akin to ownership, protected under Article 40 of the Constitution. 3. They further contended that eviction would render them destitute, infringe their socio‑economic rights under Article 43, and violate the principles of land policy under Article 60. They relied on the doctrine of historical injustices, asserting that their rights had crystallized into proprietary interests deserving protection pending trial. The Petitioners emphasized that their occupation was not casual or transient but generational, with schools, dispensaries, and community projects established with government recognition, thereby reinforcing their claim to legitimacy. They also highlighted that government infrastructure such as Nyango Primary School and Durura Dam were constructed on the land, demonstrating state acknowledgment of their presence and reinforcing their claim to a proprietary stake. 4. The 1st Respondent, Shumba Valley Conservancy, deponed that it was the registered proprietor of LR No. 16659, having transitioned the land into a wildlife conservancy in 2021. It argued that the Petition was barred by “***the Doctrine of Res Judicata”,*** citing the Civil case of:- ***“Taireni Association of Mijikenda – Versus - Mwabeja Ranching Company Limited & 7 Others (Petition No. 12 of 2021) [2022] KEELC 4882 (KLR)”***, where similar claims of ancestral occupation were dismissed. 5. The 1st Respondent further contended that the Petitioners had engaged in poaching, charcoal burning, and environmental destruction, and that the injunctive orders of 16th February, 2026 had emboldened such activities. It relied on Section 26 (1) of the Land Registration Act, No. 3 of 2012 which accords indefeasibility of title to a registered proprietor, save for fraud or misrepresentation. The 1st Respondent stressed that conservation efforts were being undermined and that the Petitioners’ continued occupation posed a grave threat to endangered species and ecological balance. It argued that the Petitioners’ claim was not one of proprietary entitlement but of unlawful occupation, and that the balance of convenience lay in protecting the conservancy’s ecological mandate. 6. The application herein is premised under the provision of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law. Which provides as follows:- **Order 40, Rule 1** **Where in any suit it is proved by affidavit or otherwise—** **a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or** **b) that the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.** 1. Fundamentally, the principles applicable in an application for an injunction were laid out in the celebrated case of ***“Giella – Versus - Cassman Brown & Co Limited (1973) EA 358”***, where it was stated: - ***“First an applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”*** 1. The three conditions set out in ***“Giella (supra)”***, need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of ***“Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR”***: - ***“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”.*** 1. In dealing with the first condition of prima facie case, the Honorable Court guided by the definition melted down in the famous case “***MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) KLR 125”*** of: - ***“So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”*** 1. Further in ***“Mitu-Bell Welfare Society – Versus - Kenya Airports Authority (2021) eKLR”***, the Supreme Court of Kenya affirmed that interim preservatory orders under Article 23(3) are active constitutional mandates, not mere procedural steps, designed to protect the Bill of Rights before permanent harm occurs. The Court determined these orders must be specific and directed at relevant parties, allowing courts to use structural interdicts to supervise state actions, particularly in instances where earlier, ignored orders resulted in unlawful evictions. 2. The provision of Section 26(1) of the Land Registration Act, No. 3 of 2012 provides that a Certificate of Title is ‘***prima facie’*** evidence of ownership, only challengeable on grounds of fraud, misrepresentation, or illegality. In the case of:- ***“Kenya Breweries Limited & Another – Versus - Washington O. Okeyo [2002] eKLR”*** is a landmark decision by the Court of Appeal of Kenya that establishes the stringent legal test for granting a mandatory interlocutory injunction. The Court ruled that a temporary mandatory injunction should only be granted in exceptional and clear circumstances, exceeding the standard required for a normal prohibitory injunction. 3. Similarly, the decision of ***“Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR”*** where the Learned Judge offered further elaboration on what is meant by **“balance of convenience”** and stated:- ***“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”*** 1. Applying these principles, the Court finds that the Petitioners have demonstrated ‘***a prima facie”*** case. Their evidence of generational occupation, establishment of social amenities, and uninterrupted settlement raises serious constitutional questions under the provision of Articles 40 and 43. These are not trivial claims but substantial issues deserving ventilation at trial. The Petitioners demonstrate long occupation and social investment in the land. Be that as it may, the 1st Respondent holds a registered Certificate of Title, which under the provision of Section 26 (1) of the Land Registration Act is prima facie evidence of ownership unless impeached for fraud, mistake or illegality. No such evidence has been tendered at this stage. 2. On irreparable harm, eviction would render the Petitioners homeless, disrupt their livelihoods, and interfere with burial grounds and schools. Such harm cannot be adequately compensated by damages. In the case of ***“Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai [2018] eKLR”*** which defined the concept of balance of convenience as: ***“The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer.*** ***In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”.*** 1. The Petitioners’ displacement would amount to irreversible social dislocation. 2. On balance of convenience, preserving the status quo is less prejudicial than permitting eviction. As stated in ***“Paul Gitonga Wanjau – Versus - Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR”***, the court dealing with the issue of balance of convenience expressed itself thus:- ***“Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.”*** 1. In this case, the Petitioners risk permanent dispossession, while the Respondent, if ultimately successful, would only suffer delay in exercising its rights. The lower risk of injustice lies in maintaining occupation pending trial. The Court is mindful, however, of the Respondent’s conservation mandate. Thus, while preservation orders are merited, they must be conditional to ensure that Petitioners do not engage in environmental destruction, poaching, or charcoal burning. This balances the Petitioners’ proprietary claims with the Respondent’s ecological stewardship. 2. The Court however notes that while the Petitioners face displacement, the 1st Respondent demonstrates ongoing destruction of wildlife and ecological degradation. Preservation of the land in favour of the Petitioners risks irreparable environmental harm, which is constitutionally protected under the provision of Article 69 of the Constitution of Kenya, 2010. 3. The Petitioners have demonstrated occupation and social ties to the land, but unfortunately they have not shown a sufficient proprietary interest in any way including a claim of land Adverse possession under the provision of Sections 7, 13, 17 and 38 of the Limitation of Action, Cap. 22 read together with Order 37 of the Civil Procedure Rules, 2010, capable of overriding the 1st Respondent’s registered title or distinguishing their claim from matters conclusively determined in Petition No. 12 of 2021. Accordingly, while the humanitarian concerns are compelling, the legal stake advanced does not warrant preservation of the suit property pending trial. 4. For these reason, therefore, I discern that the balance of convenience tilts in favour of protecting the wildlife Conservancy, protection, preservation and management and upholding the sanctity of registered title in favour of the 1st Respondent herein. ***ISSUE No. b). Whether the Notice of Motion application dated 23rd March, 2026 by the 1st Respondent is merited, particularly on the basis of Section 7 of the Civil Procedure Act, Cap. 21 (Doctrine of Res Judicata), “Functus Officio”, and the jurisdictional limits of this Honourable Court.*** 1. Under this sub‑title, the main issue here is whether the Notice of Motion dated 23rd March, 2026 by the 1st Respondent is merited, particularly on the basis of the provision of Section 7 of the Civil Procedure Act, Cap. 21 ***(“The Doctrine of Res Judicata”), “functus officio”,*** and the jurisdictional limits of this Honourable Court. The 1st Respondent argued that the Petition was barred by res judicata, citing the case of ***“Taireni Association of Mijikenda – Versus - Mwabeja Ranching Company Ltd & 7 Others (Supra)”***, where similar claims of ancestral occupation of LR No. 16659 were dismissed. It contended that the parties and issues in the present Petition were substantially the same, and that the Court had already conclusively determined the matter. 2. It is trite law that jurisdiction is everything, and without it, the Court cannot take one more step in the case. In the celebrated case of ***“Owners of Motor Vessel ‘Lillian S’ – Versus - Caltex Oil (Kenya) Limited (1989) eKLR”***, the Court, Nyarangi J held that:- ***“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings…”*** 1. Similarly, the Supreme Court in the case of ***“Samuel Kamau Macharia & Another – Versus - Kenya Commercial Bank Limited & 2 Others [2012] eKLR”*** pronounced itself thus: ***“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. …. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation….”*** 1. It is also trite that jurisdiction is derived from the Constitution and statute. The jurisdiction of this Court is derived from the provision of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2012. The jurisdiction of the ELC Court is set out in the provision of Section 13 of the ELC Act as follows:- 2. **The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.** 3. **In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—** 4. **relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;** 5. **relating to compulsory acquisition of land;** 6. **relating to land administration and management;** 7. **relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and** 8. **any other dispute relating to the environment and land** 9. The provision of Article 162 (2) (b) of the Constitution provides that Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to land, and shall determine the jurisdiction and functions of these courts. These courts are Employment and Labour Relations Court and the Environment and Land Court. 10. The 1st Respondent further averred that the Court was “***functus officio”***, having already pronounced itself on the ownership and validity of title in Petition No. 12 of 2021 as dictated under the provision of Order 21 of the Civil Procedure Rules, 2010. It relied on Section 7 of the Civil Procedure Act, Cap. 21 which provides: 11. Further, I dare state as follows that the substantive law on “***Res Judicata*** “is found under the provision of Section 7 of the Civil Procedure Act Cap. 21 which provides that: **“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, and has been heard and finally decided by such court.”** 1. The Black’s law Dictionary 10th Edition defines **“Res Judicata”** as **“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”** 1. A person may not commence more than one action in respect of the same or a substantially similar cause of action and the Court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action so as to avoid multiplicity of actions. In order therefore to decide as to whether an issue in a subsequent suit is res judicata, a court of law should always look at the Decision claimed to have settled the issues in question and the entire suit and the instant suit to ascertain; 2. what issues were really determined in the previous suit; 3. whether they are the same in the subsequent suit and were covered by the Decision. 4. whether the parties are the same or are litigating under the same Title and that the previous suit was determined by a court of competent jurisdiction 5. Kuloba J., in the case of ***“Njangu – Versus - Wambugu and another Nairobi HCCC No.2340 of 1991 (unreported)”***, held that: ***‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…..”*** 1. In the Court of Appeal case of ***“Siri Ram Kaura – Versus – M.J.E. Morgan, CA 71/1960 (1961) EA 462”*** the then EACA stated that: - ***“The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata...*** ***The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before ...*** ***The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application.*** ***It is therefore not permissible for parties to evade the application of Res judicata by simply conjuring up parties or issues with a view to giving the case a different complexion from the one that was given in the former suit.”*** 1. On the issue of “***functus officio”***, the doctrine was considered by the Court of Appeal in the case of:- ***“Telkom Kenya limited – Versus - John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) (2014) eKLR”***, where the court held that:- ***“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon…*** ***The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions...”*** 1. The Supreme Court of Kenya in the case of ***“Raila Odinga & 2 Others – Versus - Independent Electoral & Boundaries Commission & 3 Others (2013) eKLR”***, cited with approval an excerpt from an article by **Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832** which reads:- ***“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”*** 1. The doctrines of res judicata and functus officio require that the matter be conclusively determined in a previous suit. The Respondent also invoked **Explanation 6 to Section 7**, which deems representative suits binding on all persons claiming under the litigating parties. It argued that the Petitioners herein were privies to the earlier litigants and therefore estopped from re‑litigating. 2. I reiterate that the 1st Respondent argues that the Petition is barred by res judicata, citing the case of:- ***“Taireni Association of Mijikenda – Versus - Mwabeja Ranching Company Ltd & 7 Others (Supra)”***, where similar claims of ancestral occupation of LR No. 16659 were dismissed. In the case of:- ***“Uhuru Highway Development Limited – Versus - Central Bank of Kenya [1996] eKLR”***, the Court emphasized that res judicata prevents re-litigation of matters already determined. Similarly, in ***“E.T – Versus - Attorney General & Another [2012] eKLR”***, the Court held that res judicata applies not only to issues actually litigated but also to those that could have been raised. Here, the Petitioners are either members or privies to the communities represented in Petition No. 12 of 2021. The subject matter (LR No. 16659) and reliefs sought are substantially identical. Therefore, I hold that the plea of res judicata is well-founded. 3. On the issue of functus officio, the doctrine dictates that once a court has delivered a final judgment, it cannot revisit the matter except under review or setting aside or varying or appeal. In ***“Telkom Kenya Ltd – Versus - John Ochanda (suing on behalf of 996 former employees of Telkom Kenya Ltd) [Supra)”***, the Court of Appeal held that functus officio ensures finality of litigation. Since the Environment and Land Court at Kwale already rendered judgment in Petition No. 12 of 2021, this Court cannot reopen the same issues under the guise of a fresh petition. The Petitioners’ failure to appeal or seek review further cements the functus officio bar. 4. On the jurisdictional limits of this Honourable Court, I note that Jurisdiction is everything; without it, a court must down its tools. This principle was famously articulated in ***“Owners of the Motor Vessel “Lillian S” – Versus - Caltex Oil (Supra)”***. The Petitioners’ claim is framed as a constitutional petition alleging historical injustices. While the Environment and Land Court has jurisdiction under the provision of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011, it cannot sit on appeal over its own decisions or re-litigate matters already determined. That jurisdiction lies with the Court of Appeal. Thus, entertaining the present petition would amount to this Court exceeding its jurisdictional limits. 5. Thus, in summary, I discern as follows:- Firstly, the Petition is *res judicata* under Section 7 of the Civil Procedure Act. Secondly, this Court is *functus officio*, having already determined the issues in Petition No. 12 of 2021. Thirdly, the Petition offends the jurisdictional limits of this Court, as it seeks to re - open matters conclusively determined. Hence, all said and done, the Notice of Motion application dated 23rd March, 2026 is merited. The Petition herein is struck out with costs to the 1st Respondent. The ex parte orders issued on 16th February, 2026 are hereby set aside. ***ISSUE No. c). Whether the Petitioners’ claim of historical occupation and alleged breaches of constitutional rights under Articles 27, 28, 29, 40, 43 and 60 of the Constitution can be distinguished from the matters conclusively determined in Kwale ELC Petition No. 12 of 2021 ( “Taireni Association of Mijikenda – Versus - Mwabeja Ranching Company Ltd & 7 Others”).*** 1. Under this sub-title, the main issue herein is whether the Petitioners’ claim of historical occupation and alleged breaches of constitutional rights under Articles 27, 28, 29, 40, 43 and 60 of the Constitution of Kenya, 2010 can be distinguished from the matters conclusively determined in Kwale ELC Petition No. 12 of 2021 (***“Taireni Association of Mijikenda – Versus - Mwabeja Ranching Company Ltd & 7 Others (Supra)”***). The doctrine of *res judicata*, codified under Section 7 of the Civil Procedure Act, Cap 21, is a fundamental principle of judicial finality. It ensures that litigation comes to an end and that parties are not vexed twice over the same matter. In ***“E.T – Versus - Attorney General & Another (Supra)”***, the Court clarified that res judicata applies not only to issues actually litigated but also to those that could have been raised in the earlier proceedings. In Petition No. 12 of 2021, the Environment and Land Court at Kwale considered claims of ancestral occupation of LR No. 16659 (formerly LR No. 14209) by the Duruma, Waatha, Maasai, and other communities. The Petitioners sought declarations that the land constituted ancestral land and that the grant to Mwabeja Ranching Company Ltd was unconstitutional. The Court dismissed the petition for lack of merit, holding that the claims were not supported by sufficient legal or evidentiary basis. 2. The present Petitioners advance substantially similar claims of historical occupation, continuous use, and violation of property rights under Article 40. These issues were directly and substantially in issue in Petition No. 12 of 2021. Thus, the plea of res judicata prima facie applies, and the Petitioners cannot re-open the same dispute under the guise of a fresh constitutional petition. 3. On the constitutional rights under the provision of Articles 27, 28, 29, 40, 43 and 60 of the Constitution, the Petitioners argue that their rights to equality (Article 27), dignity (Article 28), freedom and security of the person (Article 29), property (Article 40), socio-economic rights (Article 43), and sustainable land use (Article 60) have been violated, infringed and thwarted. 4. In the case of:- ***“Kipsiwo Community Self Help Group – Versus - Attorney General & 6 Others (ELC No. 9 of 2013) [2013] KEELC 63 (KLR)”***, the Court recognized that historical occupation may crystallize into rights deserving protection, particularly where communities have lived on land for generations. Similarly, in the case of:- ***“Makupa Transit Shade Ltd – Versus - County Director of Planning & Architecture, County Government of Mombasa [2017] KEELC 1983 (KLR)”***, the Court emphasized that constitutional claims must be balanced against statutory entitlements of registered proprietors. 5. However, the Petitioners’ constitutional claims are not novel. They mirror the arguments advanced in Petition No. 12 of 2021, where the Court considered and dismissed allegations of violation of property and socio-economic rights. The Petitioners’ attempt to reframe the same grievances under broader constitutional provisions does not escape the bar of res judicata. As already indicated, they have not come to Court pleading a claim of suit land under the land adverse possession. Perhaps, then their plea would have some consideration on its merit. 6. Finally on the issue of *functus oficio* and jurisdictional limits, the doctrine of functus officio dictates that once a court has delivered a final judgment, it cannot revisit the matter except under review or appeal. In ***“Telkom Kenya Ltd – Versus - John Ochanda (Supra)”***, the Court of Appeal held that functus officio ensures finality of litigation and prevents courts from re-opening concluded disputes. 7. Further, as stated in ***“Owners of the Motor Vessel “Lillian S” (Supra)”***, jurisdiction is everything. Without jurisdiction, a court must down its tools. The Environment and Land Court at Kwale, having delivered a final judgment in Petition No. 12 of 2021, cannot sit on appeal over its own decision. The proper forum for challenging that judgment was the Court of Appeal, not a fresh petition before the same court. 8. The Petitioners attempt to distinguish their claim by emphasizing: * Broader constitutional violations (Articles 27, 28, 29, 43, 60 of the Constitution). * Alleged lack of public participation in the grant process. * Vulnerability of school-going children and elderly residents 1. While these arguments highlight humanitarian concerns and underscore the social impact of eviction, they do not introduce materially new issues. The substratum remains the same: occupation of LR No. 16659 and challenge to its grant to the 1st Respondent. 2. In the case of:- ***“Finsco Consulting Africa Ltd – Versus - County Executive Committee Member, Lands, Housing, Physical Planning & Urban Development & 4 Others (ELC Petition E007 of 2025) [2026] KEELC 3233 (KLR)”***, the Court reiterated that constitutional petitions cannot be used to circumvent res judicata or appellate procedures. The Petitioners’ attempt to reframe the dispute under different constitutional provisions does not alter the fact that the issues were conclusively determined in Petition No. 12 of 2021. 3. The Petitioners’ claim of historical occupation and alleged breaches of constitutional rights cannot be distinguished from the matters conclusively determined in Kwale ELC Petition No. 12 of 2021. The issues are substantially identical, the parties are either the same or privies, and the reliefs sought overlap. 4. Accordingly, I strongly hold that the Petition is barred by *res judicata*, this Court is *functus officio*, and the Petition offends the jurisdictional limits of this Honourable Court. ***ISSUE No. d). Whether the ex parte injunctive orders issued on 16th February, 2026 were obtained through material non‑disclosure and whether they ought to be set aside.*** 1. Under this sub‑title, the main issue herein is whether the ex parte injunctive orders issued on 16th February, 2026 were obtained through material non‑disclosure and whether they ought to be set aside. The law governing ex parte injunctions is clear. The provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010 permits the grant of temporary injunctions where property rights are threatened. However, such orders are granted on the basis of urgency and must be accompanied by full and frank disclosure of all material facts. 2. In the case of:- ***“Uhuru Highway Development Ltd – Versus - Central Bank of Kenya (Supra)”***, the Court emphasized that ex parte relief is discretionary and must be exercised with utmost candour. Any concealment of facts disentitles a party from equitable relief. Similarly, in the case of:- ***“Makupa Transit Shade Ltd – Versus - County Director of Planning & Architecture, County Government of Mombasa [2017] KEELC 1983 (KLR)”***, the Environment and Land Court of Kenya established a strict legal threshold for when an ex parte leave order granted in judicial review proceedings can be set aside. The principle is rooted in equity: **he who comes to equity must come with clean hands**. 3. The 1st Respondent contends that the Petitioners misled the Court by failing to disclose that the issues raised had already been conclusively determined in “***Kwale ELC Petition No. 12 of 2021 (Taireni Association of Mijikenda (Supra)”***. They were privies to parties in the earlier litigation, thereby presenting the matter as novel when it was not. Ongoing activities such as poaching, deforestation, and charcoal burning were being carried out within the Conservancy, undermining conservation efforts and threatening endangered species. Photographic evidence annexed as “MAA ‑ 2” of their annextures demonstrates destruction of flora and fauna, which was not disclosed when seeking the Ex - Parte orders. The Respondent therefore argues that the Petitioners obtained the orders in bad faith, suppressing facts that would have influenced the Court’s discretion. 4. The Petitioners obtained the Ex - Parte orders on 16th February, 2026 without disclosing the existence and outcome of Petition No. 12 of 2021, which had conclusively determined similar claims. This omission constitutes material non‑disclosure. The Petitioners also failed to disclose ongoing environmental degradation activities within the Conservancy, which directly affect the balance of convenience. The orders restrained the Respondents from exercising its proprietary rights, yet were obtained without full disclosure of the 1st Respondent’s conservation mandate and the ecological risks posed by continued occupation. Thus, the Petitioners did not approach the Court with clean hands, and the orders were obtained through suppression of material facts. 5. The Ex - Parte injunctive orders of 16th February, 2026 were obtained through material non‑disclosure of prior litigation and ongoing environmental harm. The Ex - Parte injunctive orders issued on 16th February, 2026 are hereby set aside. Costs of the application to the 1st Respondent. ***ISSUE E. Whether the balance of convenience and the overriding objective under Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Act, No. 19 of 2011 favour preservation of the suit property through injunctive and inhibitory orders, or whether such relief would amount to unlawful deprivation of rights of a registered proprietor under Section 26 (1) of the Land Registration Act, No. 3 of 2012*** 1. Under this sub‑title, the main issue herein is whether the balance of convenience and the overriding objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap 21 favour preservation of the suit property through injunctive and inhibitory orders, or whether such relief would amount to unlawful deprivation of rights of a registered proprietor under the provision of Section 26(1) of the Land Registration Act, 2012. Section 26(1) of the Land Registration Act, 2012 protects registered proprietors but allows impeachment of title on grounds of fraud, misrepresentation, or illegality while Sections 1A and 1B Civil Procedure Act Cap. 21 and 3 & 13 of the Environment & Land Act, No. 19 of 2011 enshrines the overriding objective of ensuring just, expeditious and proportionate, affordable resolution of disputes. 2. Courts are required to interpret and apply the law in a manner that furthers substantive justice and avoids undue technicalities. They also impose a duty on parties to assist the Court in achieving these objectives. Section 26(1) of the Land Registration Act, 2012, provides that a Certificate of Title issued by the Registrar is prima facie evidence of ownership and is indefeasible except where obtained through fraud, misrepresentation, or illegality. This provision underscores the sanctity of title and the protection accorded to registered proprietors. 3. The Petitioners argue that they had occupied the suit property since the years of 1940s, establishing villages, schools, dispensaries, dams, and farms, with generations born and raised on the land. Eviction would render them homeless, disrupt livelihoods, and violate their rights under Articles 27 (equality), 28 (dignity), 29 (security of the person), 40 (property), 43 (socio‑economic rights), and 60 (principles of land use) of the Constitution. The preservation of the property is necessary to ensure the substratum of the dispute remains intact pending trial. The overriding objective requires the Court to protect vulnerable communities from irreparable harm while the matter is litigated, especially where eviction would cause destitution and social dislocation. 4. The 1st Respondent contends that it holds a registered title to LR No. 16659, which under the provision of Section 26(1) Land Registration Act is indefeasible unless impeached for fraud or illegality. Injunctive and inhibitory orders restraining its proprietary rights amount to unlawful deprivation of property. The Petitioners’ claims are barred by res judicata, having been conclusively determined in “***Kwale ELC Petition No. 12 of 2021 (Taireni Association of Mijikenda (Supra)***. Continued occupation by Petitioners has led to poaching, deforestation, and charcoal burning, undermining conservation efforts and threatening endangered species, contrary to the provision of Article 69(1)(g) of the Constitution, which obligates protection of biodiversity. 5. The Petitioners demonstrate long occupation and social investment in the land. However, the Respondent’s registered title under the provision of Section 26(1) Land Registration Act remains prima facie evidence of ownership. No fraud or illegality has been proved at this stage to impeach the title. Eviction would cause homelessness, disruption of livelihoods, and violation of socio‑economic rights. These are harms that damages cannot adequately compensate, favouring the Petitioners. While Petitioners face displacement, the Respondent demonstrates ongoing destruction of wildlife and ecological degradation. Preservation of the land in favour of Petitioners risks irreparable environmental harm, which is constitutionally protected under the provision of Article 69 of the Constitution. The comparative mischief is greater if conservation efforts collapse. 6. As indicated, the provision of Sections 1A and 1B of the Civil Procedure Act require the Court to balance justice for both parties. Preserving the property for Petitioners may protect livelihoods but undermines the sanctity of title and conservation obligations. The Court must ensure proportionate justice, avoiding escalation of conflict and protecting broader public interest. 7. The Court finds that although the Petitioners have demonstrated potential irreparable harm, but the balance of convenience and the overriding objective tilt in favour of the registered proprietor. Granting injunctive and inhibitory orders would amount to unlawful deprivation of rights under the provision of Section 26(1) of the Land Registration Act and would undermine environmental conservation obligations under Article 69 of the Constitution. ***ISSUE No. f). Whether the Petition is barred by limitation under Section 7 of the Limitation of Actions Act, Cap. 22, Laws of Kenya*** 1. Under this sub‑title, the main issue herein is whether the Petition is barred by limitation under the provision of Section 7 of the Limitation of Actions Act, Cap. 22, Laws of Kenya. Section 7 of the Limitation of Actions Act provides:- **“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”** 1. This provision imposes a strict twelve‑year limitation period for actions seeking recovery of land. Once the period lapses, the claimant’s right is extinguished, and the registered proprietor’s title is shielded from challenge. The principle is rooted in the need for certainty in land ownership, stability in property transactions, and avoidance of stale claims that could unsettle settled titles. It reflects the policy that land disputes must be resolved within a reasonable time to protect both proprietors and the integrity of the land registration system. 2. The purpose of the law of limitation was stated in the case of ***“Mehta – Versus - Shah [1965] E.A 321”***, as follows:- ***“The object of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand, and on the other hand protect a defendant after he has lost evidence for his defence from being disturbed after a long lapse of time. The effect of a limitation enactment is to remove remedies irrespective of the merits of the particular case.”*** 1. The Petitioners argue that their occupation of LR No. 16659 (formerly LR No. 14209) dates back to the 1940s, through successive generations of Waatha, Duruma, Maasai, and Mrondo communities. They have established villages, schools, dispensaries, dams, and farms, evidencing long‑standing possession and recognition by government projects. Their claim is not time‑barred because they rely on doctrines of historical injustice and continuing violation of constitutional rights under the provision of Articles 27, 28, 29, 40, 43, and 60 of the Constitution. 2. They invoke Section 26 of the Limitation of Actions Act, which suspends limitation where fraud or mistake is alleged, contending that the grant of title to the 1st Respondent was irregular, unprocedural, and effected without public participation. They further argue that eviction and harassment constitute ongoing violations, meaning limitation cannot run until such violations cease. The Petitioners therefore frame their claim not merely as a land recovery action but as a constitutional petition seeking redress for continuing breaches of fundamental rights. 3. The 1st Respondent contends that it holds a registered title to the suit property, issued lawfully and protected under the provision of Section 26(1) of the Land Registration Act, 2012, which makes title indefeasible except on proof of fraud or illegality. Any claim to recover land is barred by Section 7 of the Limitation of Actions Act, since the grant was made decades ago and no action was commenced within twelve years. The Petitioners’ reliance on historical occupation cannot override statutory limitation, especially where similar claims were dismissed in the case of:- “***Kwale ELC Petition No. 12 of 2021 (Taireni Association of Mijikenda – Versus - Mwabeja Ranching Company Ltd & 7 Others)***. The Petitioners’ failure to appeal or seek review of that decision further cements the bar of limitation and invokes the principle of finality in litigation. The 1st Respondent therefore insists that the Petition is a disguised attempt to re - open a matter already determined, and limitation law prevents such re ‑ litigation. 4. In the case of ***“Gathoni – Versus - Kenya Co-operative Creameries Ltd [1982] KLR 104”*** Potter, JA stated the rationale of the law of limitation as follows: - ***“The law of limitation of actions is intended to protect defendants against unreasonable delay in bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest.”*** 1. Also, the question of limitation is a question that goes to the jurisdiction of this court. It is a clear point of law, which if argued as preliminary point, may dispose of the suit. In the case of ***“Bosire Ongero – Versus - Royal Media services [2015] eKLR”***, the court stated that ***“the question of limitation touches on the jurisdiction of the court, which means that if a matter is statute barred, the court would lack jurisdiction to entertain it. I therefore find and hold that the preliminary objection raised in the instant case is on a point of law, and the same is validly and properly taken.”*** 1. These authorities collectively underscore that limitation law is not a mere technicality under Article 159 ( 2 ) ( d ) of the Constitution of Kenya, 2010 but a substantive bar to stale claims, protecting both proprietors and the judicial system from endless litigation. 2. The Petitioners’ claim is essentially one for recovery of land, which falls squarely under the provision of Section 7 of the Limitation of Actions Act. The registered title of the 1st Respondent dates back decades, well beyond the twelve‑year limitation period. While the Petitioners invoke Section 26 of the Land Registration Act (fraud exception), no cogent evidence of fraud or mistake has been tendered at this stage. Mere allegations without substantiation cannot displace the statutory protection of title. The plea of continuing violation is weakened by the fact that similar claims were dismissed in Petition No. 12 of 2021, and no appeal was pursued. The doctrine of continuing injury cannot be invoked to perpetuate litigation already conclusively determined. The overriding principle of finality in litigation, coupled with statutory limitation, weighs heavily against reopening the matter. 3. In a nutshell, therefore, I strongly hold that the Petition is barred by limitation under Section 7 of the Limitation of Actions Act, Cap. 22. The Petitioners have not demonstrated sufficient grounds under Section 26 to suspend limitation, nor have they distinguished their claim from matters conclusively determined in Petition No. 12 of 2021. The sanctity of registered title under the provision of Sections 24, 25 & 26 (1) of the Land Registration Act must be upheld, and the Court cannot allow stale claims to unsettle settled ownership. ***ISSUE No. g).*** ***Who ought to bear the costs of the applications dated 11th February, 2026 and 23rd March, 2026*** 1. Under this sub‑title, the main issue herein is who ought to bear the costs of the applications dated 11th February, 2026 and 23rd March, 2026. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The governing provision is Section 27(1) of the Civil Procedure Act (Cap. 21), which provides: **“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”** 1. Thus, while the general rule is that costs follow the event, the Court retains discretion to depart from this principle where justice so demands. 2. The case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and fundamental Freedoms practice and Procedure Rules 2013) provides: - **“(1) The award of costs is at the discretion of the Court.** **(2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.”** 1. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of ***“Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR”*** and ***“Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR”***, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of ***“Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”***, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 2. In the present matter, the Petitioners shall bear the costs of their own unsuccessful application dated 11th February, 2026. The 1st Respondent shall be awarded the costs of its successful application dated 23rd March 2026. This outcome aligns with Section 27 of the Civil Procedure Act and the principle that costs follow the event, ensuring fairness and discouraging abuse of court process. 3. **Conclusion and Disposition.** 4. Upon considering the analysis of the framed issues, the Notice of Motion applications dated 11th February, 2026 and 23rd March 2026, together with the affidavits, submissions, and authorities cited, the Honourable Court makes the following specific findings and orders:- 5. **THAT the Notice of Motion application dated 11th February, 2026 be and is hereby found to be unmeritorious.** 6. **THAT the Petitioners/Applicants failed to disclose material facts, including the existence and outcome of the Civil case *“ELC (Kwale) Petition No. 12 of 2021”*, and did not demonstrate sufficient proprietary interest capable of overriding the Respondent’s registered title. Thus, the Ex - Parte injunctive orders issued by this Honourable Court on 16th February, 2026 be and are thereby set aside.** 7. **THAT the Notice of Motion application dated 23rd March, 2026 by the 1st Respondent be and founded to be merited. The Petition found to be on breach and hence barred by *“the Doctrine of Res judicata”* as it is enshrined under the provision of Section 7 of the Civil Procedure Act, Cap. 21, barred by limitation of action under the provision of Section 7 of the Limitation of Actions Act, Cap. 22 and offends “*the doctrine of functus officio*”. Accordingly, the Petition be and is hereby struck out.** 8. **THAT for avoidance of doubt, the Honourable Court issues the following orders:** 9. **The interim injunctive and inhibitory orders granted on 16th February, 2026 are hereby discharged forthwith.** 10. **The 1st Respondent, as the registered proprietor of LR No. 16659 (formerly LR No. 14209), retains full title, interest and rights of proprietary and ownership subject to compliance with environmental and conservation laws under the provision of Article 69 ( 1 ) & ( 2 ) of the Constitution of Kenya, Environmental Management & Co - ordination (Amendment) Act, (EMCA), 2015 and the Wildlife Conservation & management Act, 2013.** 11. **THAT the balance of convenience and the Overriding Objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Court Act, No. 19 of 2011 which are in favour of just, proportionate, resolution of disputes and expeditious disposal of cases through the dismissal of the Petition to prevent abuse of process and to uphold the sanctity of registered title under Section 26 (1) of the Land Registration Act, No. 3 of 2012.** 12. **THAT a declaration having the 2nd Respondents – the National Land Commission a State and Constitutionally established body under the provision of Article 67 of the Constitution of Kenya, 2010 to mainly deal with Public land be and is hereby strike out from these proceedings having been erroneously joined as the suit land being a private land.** 13. **THAT costs of the application dated 11th February, 2026 shall be borne by the Petitioners/Applicants; costs of the application dated 23rd March, 2026 shall be awarded to the 1st Respondent/Applicant to be borne by the Petitioners/Applicants herein.** 14. **THAT the matter is hereby marked as concluded, with no further interlocutory reliefs pending before this Court.** **IT IS SO ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……31ST ……DAY OF ………….JULY.……..……..2026.** **…………..……………………..…………………….** **HON. MR. JUSTICE L. L. NAIKUNI,** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of:** 1. Mr. Daniel Disii, the Court Assistant; 2. M/s. Wambura Advocate for the Petitioners; 3. Mr. Biriq Advocates for the 1st Respondent. 4. No appearance for the 2nd, 3rd, 4th & 5th Respondents.