https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3090

Rhapta Road Investments Limited v Mbogua & 2 others (Miscellaneous Application E016 of 2025) [2026] KEELC 3090 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3090 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Miscellaneous Application E016 of 2025 MN Kullow, J May 21, 2026 Between Rhapta Road Investments Limited Applicant and John Daniel Mbogua 1st Respondent Nairobi City County Government 2nd Respondent Farhan Aden Muhumed 3rd Respondent Ruling 1.Before me is the Notice of Motion application dated 15th December 2025 brought under the provisions of Order 40 Rules 1(a) and 2(1), Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3, 3A, 63(c) and (e) of the Civil Procedure Act and all other enabling provisions of the law. The Applicant seeks the following orders:a.1 & 2 Spent;b.That a temporary injunction be and is hereby issued restraining the Respondent, their agents, servants and or assigns from occupying, constructing on, possessing, alienating, amalgamating, disposing off or committing any acts of waste on all that parcel of land known as L.R. No. 21/1/46/1 pending hearing and determination of this suit.c.That the OCS Gigiri Police Station be directed to provide security for enforcement of the Court orders;d.That costs of the application be provided for. 2.The application is premised on the grounds set out on the face thereof and is supported by the affidavit of Kiran Kumar Shah sworn on 15th December 2025. The deponent avers that the Applicant is the registered proprietor of L.R. No. 21/1/91 having purchased the same in March 2017 from Edward Mgenyi Mbekelu and Charity Namana Mbekelu and thereafter changed the user of the property from residential to a health facility. 3.He depones that upon purchase of the property, the Applicant found encroachment on L.R. No. 21/1/46/1, which is an access road serving L.R. No. 21/1/91, L.R. No. 21/1/92 and L.R. No. 21/1/93, and that the 1st Respondent has since escalated the encroachment by commencing construction of a car wash on the said access road and placing a commercial container at the entrance of the Applicant’s health facility thereby completely obstructing access thereto. 4.The deponent further avers that the 1st Respondent has excavated onto the Applicant’s perimeter wall thereby weakening the same structurally and creating a risk of collapse and harm. It is deponed that searches and inquiries made from the Nairobi City County Government, the Ministry of Lands and the Director of Surveys confirmed that L.R. No. 21/1/46/1 is public land reserved as an access road and does not belong to any of the adjoining proprietors. According to the Applicant, despite several complaints and correspondence with the relevant authorities over the alleged encroachment, the interference with the access road has persisted, resulting in denial of access to patients, ambulances, suppliers, staff and clients accessing the health facility situated on the Applicant’s property. 5.The deponent also states that on 9th December 2025 the Nairobi City County Government through the Office of the Director, Planning Compliance and Enforcement issued an administrative approval to the 3rd Respondent permitting construction of a temporary structure on Plot No. Nairobi Block 229/550, which the Applicant contends forms part of or directly affects the suit access road. 6.He avers that the 3rd Respondent is acting at the instance and on behalf of the 1st Respondent who has historically encroached upon the suit property. The Applicant contends that unless the orders sought are granted, it will continue to suffer denial of access to its premises, disruption of operations at the health facility, loss of clients and revenue and irreparable harm incapable of compensation by an award of damages. The Response 7.The application is opposed by the 1st Respondent through the replying affidavit of John Daniel Mbogua sworn on 27th January 2026. The 1st Respondent depones that he is the original owner of L.R. No. 21/1/46, which measured approximately five acres before subdivision into several portions including L.R. No. 21/1/91 owned by the Applicant. 8.He avers that upon subdivision, he created an internal access road known as L.R. No. 21/1/46/1 serving the subdivided plots but reserved unto himself a separate parcel now known as Nairobi Block 229/550 fronting Limuru Road with its own private access road. He contends that the parcel Nairobi Block 229/550 has its own access distinct from L.R. No. 21/1/46/1 and that the survey map demonstrates that his property extends to the portion presently claimed by the Applicant. 9.The 1st Respondent further depones that the present dispute is not new and that the Applicant had previously filed ELC Case No. E096 of 2023 seeking substantially similar injunctive orders in respect of L.R. No. 21/1/46/1, which application was dismissed by the Court. He avers that the Applicant has no proprietary interest over L.R. No. 21/1/46/1 and has not produced any authenticated document demonstrating that the same constitutes public land. According to the 1st Respondent, the Applicant’s property has its own access and the Applicant is merely attempting to extend its boundaries into land that was never sold to its predecessors in title. He further states that when he sold L.R. No. 21/1/91 to the original proprietors, it was expressly explained to them that the road leading to L.R. No. 21/1/92 did not form part of the access road to their property. 10.The 1st Respondent additionally contends that the dispute falls within the mandate of the Physical and Land Use Planning Liaison Committee and not this Court and that granting the orders sought would amount to depriving him of his property contrary to Article 40 of the Constitution. He depones that he lawfully initiated and obtained approvals and documentation relating to Nairobi Block 229/550 including approvals relating to the temporary structure complained of by the Applicant. The 1st Respondent therefore denies the allegations made in the application and urges the Court to dismiss the same with costs. Further Affidavit 11.In response to the replying affidavits filed by the 1st Respondent, the Applicant filed a Further Affidavit sworn on 2nd March by Kiran Kumar Shah. The deponent states that the 1st Respondent’s assertion that the present application is res judicata is misleading as the previous matter being ELC E096 of 2023 was not heard and determined on merits but was struck out for want of jurisdiction with the parties being directed to approach the Nairobi Physical and Land Use Planning Liaison Committee. He avers that following the said ruling, the 1stRespondent ceased the acts complained of but resumed construction and interference upon the suit access road in December 2025 through the 3rd Respondent, thereby giving rise to a fresh and continuing cause of action. 12.The deponent further states that at the time the renewed acts of encroachment arose, the Nairobi Physical and Land Use Planning Liaison Committee had suspended its sittings and was non-operational, rendering recourse thereto impossible. He avers that the doctrine of res judicata cannot apply to a matter struck out for want of jurisdiction nor to continuing trespass. He further points out that the 1st Respondent admitted in paragraph 7 of his replying affidavit that he created L.R. No. 21/1/46/1 as an internal road upon subdivision of L.R. No. 21/1/46, which according to the Applicant confirms that the parcel was created as a road of access and not private land reserved for exclusive use. 13.The Applicant additionally depones that the 1st Respondent has not produced any certificate of title or lawful ownership documents in respect of L.R. No. 21/1/46/1 and reiterates that the Director of Surveys had confirmed that the same is an access road created upon subdivision and does not belong to any individual proprietor. 14.The deponent further avers that the 3rd Respondent admitted that the administrative approval issued on 9th December 2025 had been cancelled by the 2nd Respondent on 11th December 2025 and consequently there exists no lawful approval authorising construction on the suit access road. 15.He maintains that the Respondents have not denied obstructing access to the Applicant’s health facility and contends that unless restrained, the Respondents may continue interfering with the access road to the detriment of the Applicant and the public. Analysis and Determination 16.The application was canvassed by way of written submissions which this Court has carefully considered together with the application, the affidavits on record and the annexures thereto. 17.Having considered the pleadings and submissions by the parties, the issues that arise for determination are: -a.Whether this Court has jurisdiction to entertain the present application.b.Whether the Applicant has satisfied the conditions for grant of temporary injunctive orders.c.Who should bear the costs of the application. Issue No:1: Whether this Court has jurisdiction to entertain the present application. 18.I have carefully considered the pleadings, affidavits and submissions filed by the parties as well as the ruling delivered by Hon. Justice Judy Omange on 11th October 2024 in ELC E096 of 2023 touching on the same subject property namely L.R. No. 21/1/46/1. 19.In the said ruling, the learned Judge found that the dispute therein arose from development permissions and planning issues and consequently held that the same fell within the mandate of the Nairobi Physical and Land Use Planning Liaison Committee established under the Physical and Land Use Planning Act, 2019. The Court accordingly struck out the suit for want of jurisdiction. There is no evidence placed before this Court to demonstrate that the said ruling has been reviewed, varied and/or set aside. 20.In the present application, the Applicant attempts to distinguish the previous proceedings on the basis that the acts complained of are fresh acts of encroachment allegedly committed in December 2025 and that at the material time the Nairobi Physical and Land Use Planning Liaison Committee had suspended its sittings and was not operational. However, other than the averments contained at paragraph 6 of the Further Affidavit, no annexure, public notice or documentary evidence was exhibited before this Court to demonstrate that the said Liaison Committee had indeed suspended its operations or was non-functional at the material time. 21.Further, even assuming that the said Liaison Committee had suspended its sittings, such suspension in itself would not confer jurisdiction upon this Court where the statute has expressly provided a dispute resolution mechanism and where this Court had previously pronounced itself on the issue of jurisdiction in respect of the same subject matter. 22.Further, from the material placed before this Court, the substratum of the dispute remains the same, namely the legality of construction activities and development approvals touching on L.R. No. 21/1/46/1. The dispute therefore substantially falls within matters contemplated under the Physical and Land Use Planning Act and the dispute resolution mechanism established thereunder. This Court agrees with the reasoning by Hon. Justice Judy Omange that disputes emanating from development permissions and planning processes ought in the first instance to be ventilated before the statutory bodies established under the Act. 23.Accordingly, I find and hold that this Court lacks jurisdiction to entertain the present application. 24.Having found that this Court lacks jurisdiction, I need not consider the second issue as to whether the Applicant has satisfied the conditions for grant of a temporary injunction. On the issue of costs, costs follow the event and there is no reason to depart from that general principle. Disposition 25.In the result, the Notice of Motion application dated 15th December 2025 is hereby struck out with costs to the Respondents.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21ST DAY OF MAY, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Buyengo for the PlaintiffN/A for the DefendantsPhilomena W. Court Assistant