I. Introduction
1. This Honourable Court is called upon to make a determination unto the Notice of Motion application dated 11 th 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 23 rd March, 2026 filed by Shumba Valley Conservancy , the 1 st 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 16 th February, 2026 thereof (Hereinafter referred to as “The 1 st Respondent’s application”).
2. To this effect, the Honorable Court is seized of the Supporting Affidavit sworn on 11 th February, 2026 by Papaye Paul Lehongo , the 1 st 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.
3. 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).
4. Upon service of the application by the Petitioners, the Court is seized of the Replying Affidavit sworn on 23 rd March, 2026 by Mohamed Abdikadir Adan, Director of the 1 st 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)” .
5. 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.
6. Therefore, in this Omnibus ruling expansively addresses the merits of both the applications by the Petitioners and the 1 st 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.
II. The Notice of Motion application dated 11 th February, 2026
7. The Petitioners/Applicants sought the following orders:-
a. Spent.
b. Spent.
c. 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.
d. That the Officer Commanding Kwale Police Station to ensure compliance of this order.
e. That this Honorable court be pleased to issue any other order it may deem fit in the interests of justice.
f. That costs of this Application be provided for.
8. The 1 st 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:-
a. 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).
b. 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.
c. 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.
d. 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 1 st Respondent, who acquired the suit land.
e. 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).
f. After acquisition by the 1 st Respondent, the exercise of survey, demarcation and fencing were rolled out by the 1 st Respondent in the year 2020 which led to displacement of the Petitioners and their families as well as alienation of their parcels of land.
g. The Petitioners faced unfair eviction, unlawful arrests, destruction of their properties, and harassment by the 1 st Respondent in a bid to have them vacate from the parcels they had occupied for many years.
h. The Petitioners brought the Petition for determination by the Court of issues surrounding historical injustices and breaches of the Constitution.
i. 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.
j. 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.
k. 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.
l. This was also the main occupation of their neighbors in the larger Kinango Sub ‑ County.
m. The Petitioners, by virtue of their continued occupation, use and possession of the suit land even before it was granted to the 1 st 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.
n. 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.
o. The Petitioners had as well faced several acts of violence against their property and person from the 1 st 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.
p. The Petitioners were now at the risk of losing their properties and being rendered destitute.
q. 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.
r. The process that led up to the grant to the 1 st Respondent was greatly flawed in that there was no public participation given that they were on the land.
s. 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.
t. The actions by the Respondents were purely meant to violate their constitutional rights to own property.
u. 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.
v. 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.
w. 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.
x. 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.
yz. 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 1 st Respondent.
. 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.
. 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.
. 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.
. 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.
III. The Notice of Motion application dated 23 rd March, 2026
9. The 1 st 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.
10. The Applicant sought the following orders:-
a. Spent.
b. Spent.
c. That the Honourable Court be pleased to strike out the suit herein.
d. That the costs of this application be awarded to the 1 st Respondent/Applicant
11. The application by the 1 st 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 1 st Respondent herein. The Affiant averred as follows that:
a) He was a male adult of sound mind and competent to make the statement.
b) He was a Director of Shumba Valley Conservancy, the 1 st Respondent herein, and had been authorized by the 1 st Respondent to plead on its behalf. He was therefore competent to swear the affidavit in support of the application filed therein.
c) Notably, the Affiant stated that he had also been a director in the Shimbaland Ranching Company Limited before the change of name.
d) He had read the Petition dated 11 th 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 16 th February, 2026.
e) He stated that the affidavit was sworn in support of the application filed by the 1 st Respondent, seeking to strike out the Petition and the proceedings therein.
f) 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 1 st Respondent.
g) The 1 st 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.
h) 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.
i) 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.
i. The Impact of the Ex - Parte Orders of 16 th February, 2026 on the Conservancy
a. 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.
b. He deponed that the 1 st 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.
c. He was aware that the Conservancy had been affected by hunting, poaching, and charcoal burning by communities living within the area. The 1 st 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.
d. He was aware of the injunctive orders issued on 16 th February, 2026, which effectively restrained the 1 st 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.
e. He was advised by the 1 st 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.
f. The orders issued on 16 th 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.
g. The Petitioners had taken advantage of the orders of the Court to destroy the forest and commit atrocities against wildlife within the Conservancy. The 1 st Respondent, through its officers and the Kenya Wildlife Service within the Conservancy, had documented alarming incidents including:
(i) 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.
(ii) Endangered indigenous flora had been destroyed for commercial purposes.
(iii) 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.
h. The 1 st 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 16 th February, 2026, it had become impossible to effectively curb these activities due to the limitations imposed by the Court’s orders.
i. 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.
j. 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 16 th March, 2020.
k. 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.
l. All the Respondents herein had also been respondents in Kwale Petition No. 12 of 2021.
m. 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 1 st 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.
n. The Petition had been heard with all parties making their respective representations before the Court. On 15 th July, 2022, Hon. Justice A.E. Dena dismissed the Petition for lack of merit and issued orders upholding the 2 nd 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 15 th July, 2022.
o. 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 31 st March, 2023.
p. 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 26 th July, 2023.
q. 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.
r. 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 1 st 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.”
s. 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 SubCounty within Kwale County have been violated and infringed upon” , was evidence of relitigation of a settled matter.
t. 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.
u. He was advised by the 1 st 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 1 st Respondent/Applicant and 4 others. Community rights on property known as L.R. No.16659 (formerly L.R. No.14209).
Prayers inter alia:
(a) A declaration that the property No.LR 16659 -Voi (formerly 14209 -Taita), is a bona fide community or ancestral lands.
(b) 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.
(c) An order of permanent
injunction does issue restraining the 2 nd 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 2 nd , 3 rd and 4 th 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 15 th 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
v. 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:-
(a) 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.
(b) 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.
(c) 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.
(d) An order against the 2 nd , 3 rd , and 4 th 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.
(e) 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.
(f) 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.
(g) Any other relief that the Honourable Court would be pleased to issue.
(h) Costs of the Petition.
w. The Affiant deponed that he was advised by the 1 st 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.
a. 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.”
b. 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.”
x. 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 ef
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1. This Honourable Court is called upon to make a determination unto the Notice of Motion application dated 11 th 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 23 rd March, 2026 filed by Shumba Valley Conservancy , the 1 st 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 16 th February, 2026 thereof (Hereinafter referred to as “The 1 st Respondent’s application”).
2. To this effect, the Honorable Court is seized of the Supporting Affidavit sworn on 11 th February, 2026 by Papaye Paul Lehongo , the 1 st 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.
3. 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).
4. Upon service of the application by the Petitioners, the Court is seized of the Replying Affidavit sworn on 23 rd March, 2026 by Mohamed Abdikadir Adan, Director of the 1 st 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)” .
5. 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.
6. Therefore, in this Omnibus ruling expansively addresses the merits of both the applications by the Petitioners and the 1 st 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.
II. The Notice of Motion application dated 11 th February, 2026
7. The Petitioners/Applicants sought the following orders:-
a. Spent.
b. Spent.
c. 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.
d. That the Officer Commanding Kwale Police Station to ensure compliance of this order.
e. That this Honorable court be pleased to issue any other order it may deem fit in the interests of justice.
f. That costs of this Application be provided for.
8. The 1 st 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:-
a. 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).
b. 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.
c. 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.
d. 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 1 st Respondent, who acquired the suit land.
e. 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).
f. After acquisition by the 1 st Respondent, the exercise of survey, demarcation and fencing were rolled out by the 1 st Respondent in the year 2020 which led to displacement of the Petitioners and their families as well as alienation of their parcels of land.
g. The Petitioners faced unfair eviction, unlawful arrests, destruction of their properties, and harassment by the 1 st Respondent in a bid to have them vacate from the parcels they had occupied for many years.
h. The Petitioners brought the Petition for determination by the Court of issues surrounding historical injustices and breaches of the Constitution.
i. 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.
j. 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.
k. 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.
l. This was also the main occupation of their neighbors in the larger Kinango Sub ‑ County.
m. The Petitioners, by virtue of their continued occupation, use and possession of the suit land even before it was granted to the 1 st 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.
n. 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.
o. The Petitioners had as well faced several acts of violence against their property and person from the 1 st 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.
p. The Petitioners were now at the risk of losing their properties and being rendered destitute.
q. 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.
r. The process that led up to the grant to the 1 st Respondent was greatly flawed in that there was no public participation given that they were on the land.
s. 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.
t. The actions by the Respondents were purely meant to violate their constitutional rights to own property.
u. 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.
v. 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.
w. 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.
x. 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.
yz. 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 1 st Respondent.
. 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.
. 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.
. 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.
. 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.
III. The Notice of Motion application dated 23 rd March, 2026
9. The 1 st 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.
10. The Applicant sought the following orders:-
a. Spent.
b. Spent.
c. That the Honourable Court be pleased to strike out the suit herein.
d. That the costs of this application be awarded to the 1 st Respondent/Applicant
11. The application by the 1 st 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 1 st Respondent herein. The Affiant averred as follows that:
a) He was a male adult of sound mind and competent to make the statement.
b) He was a Director of Shumba Valley Conservancy, the 1 st Respondent herein, and had been authorized by the 1 st Respondent to plead on its behalf. He was therefore competent to swear the affidavit in support of the application filed therein.
c) Notably, the Affiant stated that he had also been a director in the Shimbaland Ranching Company Limited before the change of name.
d) He had read the Petition dated 11 th 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 16 th February, 2026.
e) He stated that the affidavit was sworn in support of the application filed by the 1 st Respondent, seeking to strike out the Petition and the proceedings therein.
f) 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 1 st Respondent.
g) The 1 st 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.
h) 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.
i) 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.
i. The Impact of the Ex - Parte Orders of 16 th February, 2026 on the Conservancy
a. 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.
b. He deponed that the 1 st 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.
c. He was aware that the Conservancy had been affected by hunting, poaching, and charcoal burning by communities living within the area. The 1 st 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.
d. He was aware of the injunctive orders issued on 16 th February, 2026, which effectively restrained the 1 st 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.
e. He was advised by the 1 st 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.
f. The orders issued on 16 th 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.
g. The Petitioners had taken advantage of the orders of the Court to destroy the forest and commit atrocities against wildlife within the Conservancy. The 1 st Respondent, through its officers and the Kenya Wildlife Service within the Conservancy, had documented alarming incidents including:
(i) 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.
(ii) Endangered indigenous flora had been destroyed for commercial purposes.
(iii) 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.
h. The 1 st 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 16 th February, 2026, it had become impossible to effectively curb these activities due to the limitations imposed by the Court’s orders.
i. 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.
j. 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 16 th March, 2020.
k. 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.
l. All the Respondents herein had also been respondents in Kwale Petition No. 12 of 2021.
m. 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 1 st 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.
n. The Petition had been heard with all parties making their respective representations before the Court. On 15 th July, 2022, Hon. Justice A.E. Dena dismissed the Petition for lack of merit and issued orders upholding the 2 nd 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 15 th July, 2022.
o. 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 31 st March, 2023.
p. 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 26 th July, 2023.
q. 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.
r. 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 1 st 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.”
s. 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 SubCounty within Kwale County have been violated and infringed upon” , was evidence of relitigation of a settled matter.
t. 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.
u. He was advised by the 1 st 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 1 st Respondent/Applicant and 4 others. Community rights on property known as L.R. No.16659 (formerly L.R. No.14209).
Prayers inter alia:
(a) A declaration that the property No.LR 16659 -Voi (formerly 14209 -Taita), is a bona fide community or ancestral lands.
(b) 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.
(c) An order of permanent
injunction does issue restraining the 2 nd 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 2 nd , 3 rd and 4 th 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 15 th 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
v. 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:-
(a) 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.
(b) 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.
(c) 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.
(d) An order against the 2 nd , 3 rd , and 4 th 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.
(e) 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.
(f) 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.
(g) Any other relief that the Honourable Court would be pleased to issue.
(h) Costs of the Petition.
w. The Affiant deponed that he was advised by the 1 st 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.
a. 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.”
b. 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.”
x. 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 ef
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