https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5016

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC PETITION NO. E010 OF 2026** **SAMORA SIKALIEH (Suing as the Chairperson of** **KAREN & LANGATA DISTRICT** **ASSOCIATION [KLDA]) - PETITIONER** **VS** **MOHAMED ISAHAKIA - 1ST RESPONDENT** **THE CEDARS RESTAURANT LTD - 2ND RESPONDENT** **NAIROBI CITY COUNTY** **GOVERNMENT - 3RD RESPONDENT** **THE COUNTY EXECUTIVE** **COMMITTEE MEMBER PHYSICAL** **PLANNING AND LAND USE OF** **NAIROBI CITY COUNTY - 4TH RESPONDENT** **CHIEF OFFICER, URBAN DEVELOPMENT** **AND PLANNING OF THE NAIROBI CITY** **COUNTY GOVERNMENT - 5TH RESPONDENT** **RULING** **(In respect of the Petitioner’s application dated 29/4/2026 and the 2nd Respondent’s applications dated 14/4/2026 and 21/5/2026 respectively)** 1. For determination before this Court are three applications filed by the parties, as follows; the Petitioner’s application dated 29/4/2026, and the 2nd Respondent’s applications dated 14/4/2026 and 21/5/2026, respectively. 2. Before delving into the respective applications, a brief summary of the proceedings will suffice. The Petitioner commenced these proceedings by the Petition dated 18/3/2026, alleging that the 2nd Respondent intends to establish a high-capacity restaurant and bar facility without complying with the requisite legal provisions. The Petitioner seeks declaratory orders, a permanent injunction restraining the Respondents from undertaking the intended development, and damages for the violation of their constitutional rights. 3. Alongside the Petition, the Petitioners filed an application of even date under certificate of urgency seeking interalia temporary orders restraining the 1st and 2nd Respondents, whether by themselves, their directors, servants, agents, employees, or any person acting on their behalf, from carrying out any construction, renovation, or site preparation works, erecting any signage or advertisement boards, or commencing and/or operating a restaurant, bar, or any commercial enterprise in any manner whatsoever on TITLE NUMBER LAND REFERENCE NUMBER 10126/6 (ORIGINAL NUMBER PLOT NO. A37/58) situate along Forest Lane, Karen, Nairobi, [suit land] pending the inter-partes hearing of this Application; The Officer Commanding Station (OCS) Karen Police Station be and is hereby directed to provide the necessary security and assistance to ensure strict compliance with the orders of this Honourable Court and to prevent any further illegal erection of signage or commencement of commercial activity on the suit property; An order be issued maintaining the status quo as of the date of filing this Petition specifically that the suit presently remains a low-density residential property pending the determination of the Petition. 4. On 14/4/2026, when the application came up for hearing, Counsel for the Petitioners informed the Court that they had served the Respondent and filed an Affidavit of Service dated 10/4/2026. The Court noted that the application was not opposed despite service. Consequently, the application was allowed on the following terms. 5. Prayer Nos 2, 3, 4, 6 and 7 pending the hearing and determination of the Petition. 6. Prayer No. 5 was declined. Parties may proceed with discovery of documents as provided for in the Civil Procedure Rules. 7. The matter was then scheduled for directions on the hearing of the Petition. Those orders prompted the instant applications. **The 2nd Respondent's Application dated 14/4/2026** 1. The 2nd Respondent states that it brought the application pursuant to Articles 27, 29, 40, 47, 48, 50, 162(2) and 159 of the Constitution, 2010, Sections 2 and 60(2) of the Physical and Land Use Planning Act (PLUPA 2019), and Section 3 of the Environment and Land Court Act, 2011. The 2nd Respondent prays for orders that; 2. There be and is hereby issued an order reviewing and/or varying the orders of this Court of 14/04/2026. 3. The underlying related matters ELCEPCC/E010/2026 AND ELC PET NO E010 OF 2026 be consolidated and/or heard together. 4. Costs of this Application be provided for. 5. The application is based on the grounds stated on its face and supported by the Affidavit of Wellington Omodho, the 2nd Respondent’s Director, sworn on 15/4/2026. The deponent avers that the 2nd Respondent is the undisputed registered proprietor of the parcel of land known as Nairobi Block No. A37/58 (Original Number L.R No. 10126/6) and holds a valid Certificate of Title. He further avers that, upon acquiring the suit property, the 2nd Respondent, with the previous owner’s assistance, processed a change of use from residential to commercial to set up a family restaurant. He further avers that the County Government undertook public participation by advertising the proposed change of use in two local dailies on 15th and 16/07/2025, and that a notice was also pinned at the gate of the proposed premises. He further avers that the Petitioners did not lodge any objections within the statutory 14-day period prescribed under Section 60(2) of PLUPA and Regulation 4 of the Physical and Land Use Planning (General Development Permission and Control) Regulations. Subsequently, the 2nd Respondent obtained all necessary licences and approvals for change of use from the 3rd to 5th Respondents in accordance with the law. 6. The deponent further avers that the 2nd Respondent has been subjected to unlawful interference, economic sabotage, property destruction, and intimidation by the Petitioners and their associates, resulting in litigation in ELC Petition No. E010 of 2026. Interim orders were issued on 16/3/2026 and extended on 24/3/2026, in which the Respondents participated. However, the Petitioners subsequently instituted these proceedings and obtained conflicting ex parte orders, obtained without proper service and through material non-disclosure, thereby creating inconsistent Court orders that warrant urgent judicial intervention. 7. The deponent alleges that on or about 6/3/2026, persons acting on behalf of the Petitioners unlawfully entered the suit property, demolished the 2nd Respondent's signboard, threatened its employees, and falsely represented themselves as officials of the Nairobi County Government. The Petitioners' criminal conduct amounted to trespass, malicious damage to property, and impersonation of public officers, prompting the 2nd Respondent to report the incidents at Karen Police Station under OB No. 20/12/3/26. The affidavit further states that demand letters were exchanged between the parties, yet the Petitioners allegedly continued acts of trespass and harassment despite notice to desist. The deponent further alleges that the Petitioners abused the Court process by pursuing ex parte relief while simultaneously engaging in unlawful conduct outside the Court process. 8. The deponent contends that the Petitioners' objections are without merit. The proposed development involves only minor renovations and adaptations to an existing structure that has stood on the property for more than 30 years, not extensive construction. It is deposed that Forest Lane is already substantially commercialised, hosting numerous restaurants, hotels and hospitality establishments operating in the same locality as the 2nd Respondent. The deponent therefore argues that the Petitioners have unfairly singled out the 2nd Respondent while ignoring comparable businesses operating in the same neighbourhood. 9. It is further asserted that the proposed restaurant is intended to operate as a family restaurant without loud entertainment, that customer parking will be provided on the premises, and that the project is not expected to adversely affect neighbouring properties or public order. 10. In addition, the deponent challenges the legal foundation of the Petitioners' case, asserting that the local physical development plans relied on by the Petitioners have expired and therefore cannot lawfully govern the present dispute. The deponent further contends that, under Section 60(2) of the Physical and Land Use Planning Act (PLUPA 2019), the Petitioners ought to have directed their complaints or objections to the County Executive Committee Member (CECM) responsible for matters relating to lands (Urban Planning). The 2nd Respondent cites the Court of Appeal decision in Civil Appeal No. E160 of 2025; Claire Kubochi Anami & Others –vs- CECM Built Environment and Urban Planning, Nairobi City County & 20 Others, in which the Court held that developers who obtain approvals lawfully and in good faith should not be retrospectively prejudiced in the absence of demonstrated illegality. The deponent therefore maintains that the Petitioners have failed to identify any specific illegality committed by either the 2nd Respondent or the approving authorities, and that any grievances should have been pursued through the statutory planning dispute resolution mechanisms rather than through constitutional litigation. 11. The deponent avers that unless the Court urgently intervenes, the 2nd Respondent will suffer substantial financial loss, ongoing economic sabotage, continued trespass, and irreparable prejudice, despite having invested significantly in acquiring the property, securing planning approvals and licences, and establishing the business. The affidavit therefore urges the Court to set aside the ex parte orders obtained without service, resolve the conflict between the Court orders, restrain the Petitioners from further trespass and interference with the property, preserve the status quo pending the determination of the suit, and uphold the rights of a lawful proprietor who is alleged to have complied fully with all statutory planning and licensing requirements. **The Petitioners' Application dated 29/4/2026** 1. The Petitioners’ application is anchored in the provisions of Section 29 of the Environment and Land Court Act, Section 5 of the Judicature Act, Order 51 Rule 1 and Order 40 Rule 3 of the Civil Procedure Rules. The Petitioners pray for the following orders: 2. This Honourable Court do issue summons to **MR. WELLINGTON OLALE OMODHO, MR. MARTIN ALBRIGTSEN, MR. MAGNE HARALD ALBRIGTSEN**, and **MS. SOVEIDI EP EL LALOUS MIRNA**, in their capacities as Directors of **THE CEDARS RESTAURANT LIMITED** (2nd Respondent), to attend Court and show cause why they should not be cited and punished for contempt of Court for their willful, deliberate, and contumacious disobedience of the clear and express mandatory Orders of this Honourable Court issued by **Hon. Lady Justice J.G. Kemei** on 14/4/2026. 3. This Honourable Court do issue summons against the Officer Commanding Station (OCS) Karen Police Station to attend Court and show cause and explain the actions he has undertaken in the implementation and enforcement of the Order issued on 14/04/2026. 4. In the alternative to prayer 3 above, this Honourable Court do order the Inspector General of the National Police Service and his designated officers to execute the warrant(s) of arrest against the Directors of the 2nd Respondent, namely MR. WELLINGTON OLALE OMODHO, MR. MARTIN ALBRIGTSEN, MR. MAGNE HARALD ALBRIGTSEN, and MS. SOVEIDI EP EL LALOUS MIRNA, using all lawful means possible, including but not limited to: 5. Designating specific officers to execute the warrants across any jurisdiction within the Republic of Kenya where the Directors may be found; 6. Full deployment of all necessary police resources, including intelligence gathering, surveillance, and inter-agency coordination, to locate and apprehend the said Directors; 7. Execution of the said warrants within fourteen (14) days from the date of this order and the production of the arrested persons before this Honourable Court forthwith upon arrest. 8. In the event that the contempt is not purged, the Court do convict **MR. WELLINGTON OLALE OMODHO, MR. MARTIN ALBRIGTSEN, MR. MAGNE HARALD ALBRIGTSEN**, and **MS. SOVEIDI EP EL LALOUS MIRNA** to a fine not exceeding Kshs. 20,000,000 and/or imprisonment for a term not exceeding 2 years in accordance with **Section 29 of the Environment and Land Court Act**. 9. The costs of this Application be borne by the 2nd Respondent and the Contemnors personally on a full indemnity basis. 10. The application is based on the grounds set out on its face and further supported by the affidavit of Samora Sikalieh, the Chairperson of the Karen Langata District Association, sworn on 29/4/2026. The deponent avers that on 14/4/2026, this Honourable Court issued a temporary injunction restraining the 1st and 2nd Respondents, or their agents, from undertaking any construction, renovation, site preparation, or erection of signage on the property known as Title Number Land Reference Number 10126/6 (Original Number Plot No. A37/58), situated along Forest Lane, Karen. The Court further directed the strict maintenance of the status quo, requiring the suit property to remain a low-density residential property pending final determination of the Petition. The Order was duly extracted and served upon all Respondents on 16/04/ 2026, with an express caution that any disobedience would attract penal consequences, including committal to civil jail. 11. The deponent avers that the Respondents, through their Counsel on record, have full and actual knowledge of the Court Order, as evidenced by their filing of an application dated 14/4/2026 seeking to vary or set aside the Order. Despite this knowledge and the pendency of their application, the Respondents have continued to show manifest contempt for the Court's authority. On 22/4/2026, the Petitioners’ Counsel on record sent a formal Cease and Desist letter to the Respondents’ Counsel, drawing their attention to the ongoing contemptuous acts and reminding the directors of their personal liability. 12. It is alleged that on 22nd and 23/04/2026, the 2nd Respondent, under the direct supervision of its directors, Mr. Wellington Olale Omodho, Mr. Martin Albrigtsen, Mr. Magne Harald Albrigtsen, and Ms. Soveidi Ep El Lalous Mirna, maintained a large workforce on-site and facilitated heavy deliveries of construction materials, including night-time operations to evade detection. On 17th and 24/04/2026, when the Petitioner's Advocates, accompanied by the Officer Commanding Station (OCS), Karen Police Station, visited the site to enforce the injunction, the directors, Mr. Wellington Olale Omodho and Mr. Magne Harald Albrigtsen, were personally present and contemptuously directed the workforce to continue the unauthorised construction in the very presence of law enforcement. The deponent avers that the Respondents' agents attempted a deceitful stratagem by falsely claiming to act under an unrelated and superseded Order issued by Justice Angote in ELCPCC No. E010 of 2026, a ruse intended to create artificial ambiguity to justify their defiance. He argues that this artificial ambiguity proves that the Respondents’ defiance is not born of confusion but of a deliberate, high-handed policy of judicial sabotage. 13. The deponent asserts that enforcement through the local police apparatus has proved problematic due to the Respondents' extreme high-handedness and deceptive legal excuses. He argues that it is therefore necessary to cite the named directors for contempt and to order the Inspector General of Police to provide the requisite assistance to execute warrants of arrest and ensure the site is fully locked down. He asserts that the Respondents' conduct falls squarely within the ambit of Section 29 of the Environment and Land Court Act, which renders refusal or neglect to obey a Court Order a criminal offence punishable by a fine not exceeding Kshs. 20,000,000/- or imprisonment for a term not exceeding two (2) years. **The 2nd Respondent's Application dated 21/5/2026** 1. The 2nd Respondent’s application is anchored on the provisions of Articles 47, 48, 50(1), and 159(2)(d) of the Constitution, Sections 3, 6 and 19(2) of the Environment and Land Court Act, and Order 11 of the Civil Procedure Rules. The 2nd Respondent prays for orders that; 2. There be and is hereby issued an order consolidating this matter together with ELCPCC NO. E010 OF 2026 (The Cedars Restaurant –vs- Hillary Soi & Others) 3. In the alternative, this Honourable Court be pleased to order that this matter be heard together with ELCPCC NO E010 OF 2026 (The Cedars Restaurant –vs- Hillary Soi & Others) 4. The costs of this Application be provided for. 5. The application is premised on the face of it and further supported by the affidavit of Wellington Omodho dated 21/3/2026. The deponent avers that the application for consolidation of related matters is premised on the proliferation of applications in both suits and the existence of conflicting orders issued by different Courts, specifically orders by Hon. Justice A.O. Angote in ELCPCC No. E010 of 2026 and orders by Learned Judge G. Kemei on 14/4/2026, which have caused unnecessary confusion and conflict. The deponent asserts that consolidation or joint hearing is imperative to resolve the resultant legal dissonance. 6. The deponent deposes that, whereas the 2nd Respondent is accused of contempt of Court for disobeying the orders of 14/4/2026, there were conflicting orders at the material time. That, in any case, the 2nd Respondent has sought to set aside the said orders on grounds of non-disclosure of material facts and failure to serve all parties. He argues that the application to set aside the ex parte orders ought to take priority. He states that a similar application dated 29/4/2026 has also been filed in ELCPCC No. E010 of 2026, seeking the setting aside of orders issued by Justice O. A. Angote. 7. The deponent further highlights that the Petitioners have filed a further application dated 14/5/2026, seeking clarification of this Court’s orders of 16/3/2026 (extended on 24/3/2026), thereby demonstrating the confusion arising from forum shopping. He avers that the subject matter of both suits concerns the suit property belonging to the 2nd Respondent and licences lawfully issued by the 3rd and 4th Respondents, who were never served prior to the ex parte proceedings of 14/4/2026. The deponent maintains that the 2nd, 3rd, 4th, and 5th Respondents acted lawfully and in good faith. 8. The deponent contends that consolidation is necessary to prevent conflicting decisions, judicial embarrassment and abuse of process. He argues that ELCPCC No. E010 of 2026, being the first in time, should be designated the lead file. He urges the Court to allow the application as prayed. **The Petitioners’ Replying Affidavit** 1. The Petitioner opposed the 2nd Respondent’s applications by the Replying Affidavit, sworn on 2/6/2026, by Samora Sikalieh. On the application for consolidation, the deponent asserts that the prayer is procedurally defective and legally untenable. The Petitioners maintain that the two matters are fundamentally distinct. The suit instituted by Cedars Restaurant Limited is a private law claim based on trespass and economic sabotage, whereas the present proceedings constitute a public law Constitutional Petition addressing violations of the Constitution and statutory land use planning frameworks. The Petitioners contend that, while the matters may be heard concurrently for judicial efficiency, true legal consolidation is impossible, as constitutional enforcement mechanisms cannot be merged into an ordinary commercial tort claim. 2. Regarding the alleged non-service, the deponent stated that it is a deliberate falsehood intended to mislead the Court. The Petitioners demonstrate that proper and formal service of the Petition and application was effected upon all relevant parties, as conclusively established by the Affidavit of Service dated 10/4/2026. He argues that the Petitioners went beyond procedural requirements by serving the documents specifically upon the 2nd Respondent's advocate on record, the firm of EA Consultancy, thereby vitiating any claims of non-disclosure or surreptitious ex parte proceedings, with service explicitly directed to Dr. Ekuru Aukot via electronic communication. 3. The Petitioners vehemently deny allegations of material non-disclosure in the proceedings in ELCEPCC/E010/2026. The deponent avows that there was absolute candour and full disclosure. The Petitioners establish that the subject proceedings and Court order were explicitly annexed to the Supporting Affidavit accompanying the Petition and are clearly visible at pages 149-254 of the annexures. He asserts that the 2nd Respondent's claims of concealment constitute a blatant falsehood designed to mislead the Honourable Court. 4. The Petitioners challenge the 2nd Respondent's contention that the orders issued in ELCEPCC/E010/2026 and the conservatory orders in the present constitutional petition are conflicting, describing this position as entirely misleading and conceptually flawed. The Petitioner distinguishes the orders, explaining that the orders of 16/3/2026 were narrowly tailored to manage an interpersonal civil claim concerning private trespass and property damage, whereas the protective orders in the present petition guard against fundamental constitutional infractions and direct statutory non-compliance under the Physical and Land Use Planning Act, 2019. 5. The Petitioner contends and invokes the well-established principle that all Court orders must be strictly obeyed and observed until formally varied or set aside. The Petitioner submits that even if the 2nd Respondent perceived the parallel orders as ambiguous, the 2nd Respondent's sole lawful recourse was to maintain the status quo ante, halt construction immediately, and seek formal clarification from the Court. Instead, the 2nd Respondent unilaterally interpreted the orders to its own commercial advantage, using the pretext of confusion to aggressively accelerate illegal construction works in complete defiance of the active conservatory provisions. 6. The deponent further states that the 2nd Respondent's reliance on alleged economic sabotage is legally irrelevant and cannot provide a valid ground for setting aside or varying properly issued conservatory orders. The Petitioner relies on the established legal threshold for the grant of conservatory orders, as settled by the Supreme Court of Kenya in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, which requires a demonstration of a prima facie case with a likelihood of success, a real danger that the petition will be rendered nugatory if orders are withheld, and a balance of convenience leaning towards the public interest, all of which the Petitioner successfully demonstrated to the Court. 7. The Petitioners contend that the 2nd Respondent's entire framework is rooted in pure speculation and conjecture rather than in concrete facts, noting that paragraphs 12-14 of the Supporting Affidavit merely assert that "KLDA may" take certain actions. The Petitioner invokes the principles established in Okiya Omtatah Okoiti vs Kenya Railways Corporation (HCCPET/E843/2025), where the Court held that ‘Advanced stages of construction or substantial sunk costs cannot be used as a shield to escape constitutional and legal scrutiny. No amount of rapid capital expenditure can sanitize an unconstitutional, procedurally fraudulent, or illegal process.’ He argues that allowing a developer to benefit from swift, bad-faith physical actions on the ground would render any final judgment of this Court a hollow victory for the rule of law and the public interest. The Petitioner therefore prays that the Notice of Motion applications dated 14/4/2026 and 21/5/2026 be dismissed with costs. **The 2nd Respondent’s Replying Affidavit** 1. The 2nd Respondent opposed the Petitioners’ application for contempt of Court by the Replying Affidavit of Wellington Omodho, sworn on 21/5/2026. The 2nd Respondent contends that the Petitioners’ Application is devoid of merit, constitutes an abuse of Court process, and forms part of a deliberate strategy to obtain interim reliefs prematurely, thereby circumventing full ventilation of the substantive issues. The 2nd deponent reiterates the assertions in his supporting affidavit seeking to set aside the orders, stating that the Petitioners have selectively targeted the 2nd Respondent despite the existence of other comparable establishments operating without complaint. 2. In further response, the deponent accuses the Petitioners of forum shopping, noting that the present Petition was filed on 19/3/2026, a mere three days after service of the order issued by Justice Angote on 16/3/2026 in ELC EPCC No. E010 OF 2026. The orders issued by Justice Angote granted injunctive relief restraining interference with the 2nd Respondent’s quiet possession and renovations of the suit property. The order remains in force and has neither been set aside nor varied. 3. He avers that the Petitioners’ conduct in the forum has resulted in the issuance of conflicting Court orders that have embarrassed the Court and created substantial confusion. It is averred that the Petitioner failed to disclose that other orders had already been granted by Justice Angote, thereby obtaining subsequent orders surreptitiously. 4. He deposes that proper service was not effected upon the 2nd Respondent, as purported service was made via a general email address not belonging to any director, contrary to the requirement that service upon a corporation must be effected upon its officers. The order allegedly served upon the other Respondents bears no date on the stamped copy. He asserts that the directors of the 2nd Respondent were never personally served with the Court orders they are accused of disobeying. He argues that the 2nd Respondent’s counsel only became aware of the orders through social media, by which time the remodeling works had already been completed. He asserts that the Petitioners have adduced no evidence demonstrating willful disobedience of Court orders. Given the quasi-criminal nature of contempt proceedings, the law requires personal service upon each proposed contemnor to enable them to respond to the threat to personal liberty, a requirement which the Petitioner failed to satisfy. 5. It is deposed that the existence of two conflicting orders left even the Officer Commanding Station Karen Police Station unable to determine which order to enforce, and that Court administrators themselves issued contradictory correspondence acknowledging the difficulty. The 2nd Respondent has moved this Court by way of an application to set aside the orders granted herein, which application ought to be prioritised to ensure due process is followed and to avoid the possibility of the Court punishing the Directors based on orders that may have been irregularly obtained. 6. He asserts that the conservatory orders of 14/4/2026 were granted in error, as they are intended to address public wrongs and are inherently public, markedly different from ordinary injunctions. The Petitioner's own application for clarification of the orders constitutes a tacit admission of the lack of clarity in the proceedings. The 2nd Respondent argues that the Petitioners cannot be permitted to benefit from their own misdoings. The Court is therefore urged to dismiss the contempt application and to allow the application to set aside the orders, so as to pave the way for the consolidation and substantive hearing of the matters herein. **The Petitioners’ Supplementary Affidavit** 1. The Petitioners filed a Supplementary Affidavit, sworn by Samora Sikalieh on 23/5/2026. The deponent avers that the affidavit is sworn to urgently bring to the attention of this Honourable Court a calculated and brazen escalation of illegal activities by the 1st and 2nd Respondents, constituting direct and willful contempt of the prohibitory orders issued by this Court on 14/4/2026. He contends that the said orders explicitly restrained the Respondents, their agents and servants, from undertaking any construction, renovation, or site preparation, and specifically barred the commencement or operation of any restaurant, bar, or commercial enterprise on the suit property, Title Number Land Reference Number 10126/6, pending the hearing and determination of the Petition. 2. It is deponed that the worst apprehensions of the residents of Forest Lane have now fully crystallised, as the Respondents, in total defiance of the Court's clear directives, have officially opened "The Cedars Restaurant" to the public and commenced full-scale commercial operations. Photographic and electronic evidence annexed as "SS 1–SS 5" and captured on 23/5/2026 irrefutably depicts a newly erected industrial kitchen chimney stack actively emitting thick smoke, soot, and carbon emissions over the perimeter wall and directly into adjoining residential dwellings. 3. The deponent avers that the unauthorised operation of the said industrial kitchen has created an immediate, severe, and irreversible environmental and private nuisance in the locality, exposing residents to toxic smoke, heavy soot, and pungent commercial odours that permeate their private homes. This conduct fundamentally violates and destroys residents' constitutional right to a clean, healthy, and serene residential environment, as guaranteed under Article 42 of the Constitution of Kenya, and demonstrates that the Respondents are acting with sheer impunity and in profound unclean hands. 4. He asserts that the Respondents are pursuing a calculated, bad-faith strategy to present this Court with an irreversible fait accompli, operating under the misguided belief that the Court would hesitate to dismantle a fully operational mega-restaurant. On that basis, he urges the Court to intervene urgently, assert its authority, protect its process from manipulation, and exact strict penal consequences for this outright defiance. Failure to do so will irreparably compromise the rule of law and the dignity of this Court and render the Petitioner's pursuit of justice nugatory. The deponent prays for immediate punitive and restorative action to preserve the sanctity of the Court's orders and the constitutional rights of the residents. **The Court’s directions on written submissions** 1. The Court directed the parties to file their submissions. The parties complied and filed their respective submissions, both dated 9/6/2026. The parties further highlighted their submissions on 10/6/2026. The Court has read and considered both the written submissions and the highlighted submission, which, in any event, now form part of the Court record. **Analysis and Determination** 1. I have considered the pleadings, the applications, the rival affidavits in support, the submissions in relation to them, as well as the Court record. I distil the following issues for determination: 2. Whether the Orders issued by this Court on 14/4/2026 should be set aside; 3. Whether the Petitioner’s application for contempt of Court is merited; 4. Whether this Court should order the consolidation of this suit with ELC EPCC No. E010 OF 2026. 5. Who should bear the costs of the applications. **Whether the Orders issued by this Court on 14/4/2026 should be set aside;** 1. It is settled principle that the decision whether to set aside an ex parte order is discretionary. The discretion is intended to be exercised to avoid injustice and hardship arising from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. See Shah vs Mbogo & Another (1967) EA 116. 2. In the present case, the record shows that on 14/4/2026, having considered the Petitioners’ application dated 18/3/2026, the Court granted prayers 2, 3, 4, 2,3,4,6 and 7. As noted earlier, the Court was satisfied that the Respondents had been duly served, as evidenced by the Affidavit of Service dated 10/4/2026, but had failed to file a response. The orders issued were in the following terms; 3. A temporary injunction do issue restraining the 1st and 2nd Respondents, whether by themselves, their directors, servants, agents, employees, or any person acting on their behalf, from carrying out any construction, renovation, or site preparation works, erecting any signage or advertisement boards, or commencing and/or operating a restaurant, bar, or any commercial enterprise in any manner whatsoever on TITLE NUMBER LAND REFERENCE NUMBER 10126/6 (ORIGINAL NUMBER PLOT NO. A37/58) situate along Forest Lane, Karen, Nairobi, pending the inter-partes hearing of this Application. 4. A temporary injunction do issue restraining the 3rd, 4th, and 5th Respondents, their officers, or agents from processing, granting, or issuing any further approvals, permits, renovation licenses, health certificates, liquor licenses, or single business permits in respect of TITLE NUMBER LAND REFERENCE NUMBER 10126/6 (ORIGINAL NUMBER PLOT NO. A37/58), pending the inter-partes hearing of this Application. 5. The Officer Commanding Station (OCS) Karen Police Station be and is hereby directed to provide the necessary security and assistance to ensure strict compliance with the orders of this Honourable Court and to prevent any further illegal erection of signage or commencement of commercial activity on the suit property. 6. An order be issued maintaining the status quo as of the date of filing this Petition specifically that the suit presently remains a low-density residential property pending the determination of the Petition. 7. Costs of this application be awarded to the Petitioner/Applicant. 8. The 2nd Respondent, however, contends that the orders issued by this Court on 14/4/2026 conflict with the orders issued by Justice Angote on 16/3/2024 in ELC EPCC No. E010 OF 2026; Cedars Restaurant Ltd v Soi & 2 others. The 2nd Respondent accuses the Petitioners of concealing from the Court the existence of the orders by Justice Angote, thereby embarrassing the Court and bringing it into disrepute. 9. The Petitioners, on the other hand, aver that the orders were duly issued on merit after the Court considered the evidence adduced before it. Regarding non-disclosure of the orders, the Petitioners maintain that the orders were duly annexed to the application; hence, the accusation of concealing material facts before the Court does not arise. 10. For starters, it is important to note that parties are bound by their pleadings. Although the Court granted prayers 2 and 3 of the said application, those prayers had already been exhausted at the time of the hearing. The orders were sought in the pendency of the determination of the application. Therefore, at the time of hearing the application, prayers 2 and 3 had already been spent. 11. However, I note that when the orders were extracted on 15/4/2026, they were mischievously amended to read ‘pending the hearing and determination of the Petition.’ Orders 1 and 2, as they appear thereon, were therefore not issued by this Court. The Court therefore issued interim orders in respect of prayers 2 and 3, not final orders as they appear on the orders extracted on 15/4/2026. The Petitioners ought to have extracted only the status quo orders in terms of their prayer No. 6. 12. Having considered the affidavit evidence and submissions, the Court finds as follows: 13. There exists another suit, ELC EPCC No. E010 OF 2026; Cedars Restaurant Ltd –vs- Soi & 2 Others. 14. The civil suit was filed by the 2nd Respondent herein before this Petition was instituted. 15. On 16/3/2026, the Court handling ELC EPCC No. E010 OF 2026, having considered the application, issued interim orders “THAT there be and is hereby issued a temporary injunction restraining the 1st, 2nd and 3rd Defendants, by themselves, their agents or servants, from entering into, harassing occupants, interfering with improvements/renovations, destroying fixtures, or in any other way interfering with the Plaintiff’s quiet possession and enjoyment of the parcel of land known as Plot No. A37/58 (Original Number L.R No 10126/6) pending the hearing and determination of this Application.” 16. The said orders were extended and are still currently in force. 17. Juxtaposing the orders issued by this Court on 14/4/2026 with those issued by the Honourable Court in ELC EPCC No. E010 OF 2026 on 16/3/2026 and extended on 24/3/2026 until 19/5/2026, it is evident that the two interim orders conflict with each other. 18. Whereas this Court directed the 2nd Respondent to maintain the status quo as at the date of filing this Petition, specifically that the suit presently remains a low-density residential property pending the determination of the Petition, the orders of 16/3/26 restrained the Petitioners herein from interfering with improvements/renovations, destroying fixtures, or in any way interfering with the 2nd Respondent’s quiet possession of its property. 19. From the affidavit evidence of the parties herein, it has proved practically difficult to enforce both sets of orders. 20. Although the two suits are different, the two sets of orders converge on the same suit property, hence creating a conflicting effect. 21. Given that the orders of the Court issued on 16/3/2026 were issued first, they shall prevail. 22. Therefore, for orderly Court proceedings and to protect the Court from disrepute, the just course is for this Court to set aside its orders issued on 14/4/2026. 23. Accordingly, the orders issued on 14/4/2026 herein are hereby set aside. **Whether the Petitioner’s application for contempt of Court is merited;** 1. This Court has power to punish contempt of Court as provided for under Section 20 of the Environment and Land Court and Section 63 of the Civil Procedure Act. Section 29 of the Environment and Land Act provides that any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act commits an offence and, on conviction, shall be liable to a fine not exceeding twenty million shillings, to imprisonment for a term not exceeding two years, or to both. 2. Having set aside the orders of 14/4/2026, which form the basis of the application for contempt, the application has lost its ‘ground’. It is no longer anchored in any orders. The application is therefore moot. Any decision rendered thereon would be no more than an academic statement, contrary to the public policy that a Court should not exercise its jurisdiction or act in vain. The application is therefore dismissed. **Whether this Court should order the consolidation of this suit with ELC EPCC No. E010 of 2026.** 1. Arising from the Court’s finding on the orders of 14/4/2026, and to avoid further conflicting decisions, directions and/or parallel proceedings, this Court is of the view that the Court handling ELC EPCC E010 of 2026 is better placed to determine the issue of consolidation. 2. Consequently, the application dated 21/5/2026 should be placed before the said Court for determination. This Court will therefore not pronounce itself on the said application. 3. Based on the foregoing, the applications are determined as follows; 4. The 2nd Respondent’s application dated 14/4/2026 is hereby merited. The orders issued on 14/4/2026 are hereby set aside. 5. The Petitioner’s application dated 29/4/2026 for contempt of Court is hereby deemed moot. It is dismissed. 6. The 2nd Respondent’s application dated 21/5/2026 shall be determined by the Court handling ELC EPCC E010 of 2026. 7. This file shall be placed before the Court handling ELC EPCC E010 of 2026 for determination and issuance of appropriate orders. 8. Each party shall bear their own costs of the applications. 9. It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JULY 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered virtually in the presence of:** 1. NA for the Petitioner 2. N/A for the 1st Respondent 3. Dr Aukot & Ms Bosire for the 2nd Respondent 4. N/A for the 3rd - 5th Respondents 5. CA- Mr. Amos