Mbaru & 12 others v Mombasa County Government & 20 others (Civil Appeal E020 of 2021) [2024] KECA 192 (KLR)
The bottom line
#Kenya's Court of Appeal stopped Mombasa residents from re-challenging the Buxton Estate redevelopment, confirming courts will not allow the same issues to be litigated twice.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition was res judicata by virtue of the previous petitions concerning the same urban renewal project
Yes. Most issues had been determined in Mombasa High Court Petition No. 39 of 2016 (affirmed on appeal), and the appellants, as residents of an affected estate, were claiming under the same title in public interest litigation.
The Court reviewed the five conjunctive elements of res judicata from IEBC v Maina Kiai and the rationale of finality. Public interest litigation is in rem; allowing every resident to re-litigate would mean litigation never ends until the last citizen has been heard. The issues of public participation, right to housing, access to information and statutory compliance had been determined in the former suit.
Whether the learned Judge failed to determine the status of the suit land as public or private
No. The Judge expressly addressed the issue but declined to make a finding on it because the project as a whole had been given the go-ahead in the previous litigation, and the question was res judicata in its extended meaning.
Paragraphs 97 and 98 of the impugned judgment show the Judge considered the public/private land question and reasoned that any complaint about disposal of public land should have been pursued under statutory dispute-resolution mechanisms such as the Public Procurement and Disposal Act. Explanatory note 4 to section 7 of the Civil Procedure Act deems matters that ought to have been raised to have been in issue.
Whether the doctrine of ex turpi causa non oritur actio overrides res judicata where illegality is pleaded
No. No authority was cited for that proposition and the Court was unaware of any; the maxim is a private law defence that cannot found a cause of action or defeat res judicata.
The Court accepted the Privy Council's articulation in Mistry Amar Singh v Serwano Wofunira Kulubya of the illegality maxim but noted that res judicata is conceived in the larger public interest that litigation must come to an end and is a complete estoppel not even waivable by consent. Alleged violations of statutory provisions should go to the statutory forums.
Whether the award of costs against the appellants in a public interest petition was justified
The Court found no basis to fault the award, applying the principle that costs follow the event, tempered by the Supreme Court's guidance in Jasbir Singh Rai that public interest matters may be exempted only for 'good reasons' exercised judiciously.
While recognising that costs in public interest litigation are often exempted, the Court held the discretionary award rested on the judiciously exercised discretion of the trial court accommodating the special circumstances of the case, including the motivations and conduct of the parties, and could not be disturbed.
Whether the alleged demolition and relocation constituted violations of international instruments or crimes against humanity
No. The Judge was right that no specific provision of any international instrument was identified as infringed; the county government was providing temporary relocation with a view to re-occupation and even paid deposits for the new houses.
On re-evaluation, the Court could not see how the 1st respondent could be accused of crimes against humanity when all it did was provide temporary relocation to enable the provision of adequate housing. The matter was a local government creating additional housing from limited land resources, not a crime in any forum.
Legal principles established
#- For res judicata to be raised and upheld, all five elements must be satisfied conjunctively: identity of issues, parties or persons under whom they claim, same title, final determination, and competency of the former court.
- Res judicata operates as a jurisdictional bar that binds courts in public interest litigation; different litigants claiming under the same title cannot re-litigate issues already determined because such litigation is in rem.
- The res judicata bar extends to matters that might and ought to have been raised in the former suit, and there is no authority that the doctrine of ex turpi causa non oritur actio overrides res judicata.
- Costs follow the event, but in public interest litigation a court may exempt a losing public-interest litigant from costs where the suit advanced legitimate public interest without private gain.
- A first appellate court re-evaluates the evidence and draws its own conclusions, departing from trial-court factual findings only where they were not based on the record, on wrong principles, or where discretion was exercised injudiciously.
Court orders
#- 1.The appeal is hereby dismissed with costs.
- On appeal from
- Environment and Land Court at Mombasa
- Mombasa ELC Constitutional Petition No. 28 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Environment and Land Court, under Article 164(3) of the Constitution and the Court of Appeal Act (not expressly cited in the extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbaru & 12 others v Mombasa County Government & 20 others (Civil Appeal E020 of 2021) [2024] KECA 192 (KLR)", Case Analysis (2024). Civil Appeal No. 28 of 2021 (arising from Mombasa ELC Constitutional Petition No. 28 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/192/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.