Martin Murithi Njeru & another (Suing on their behalf and on behalf of Kenyan Citizens) v Postal Corporation of Kenya & 4 others [2019] KEELC 2598 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed an injunction over an Embu public land lease because construction was already complete, making orders pointless.
What this practically means
#Executive summary
#Key legal issues
#Whether land held by a state corporation is public land
Yes. Land held by a state corporation wholly owned by the Government of Kenya constitutes public land under Article 62(1)(m) of the Constitution unless classified as community or private land.
The court agreed the 1st Respondent was not a state organ under Article 260, but held Article 62(1) contains other categories of public land beyond unalienated government land and land held by state organs, including land not classified as private or community land under Article 62(1)(m). Corporate personality is merely a convenient legal device enabling a public body to perform statutory functions and does not convert public property into private property.
Whether the application was barred by section 6 (sub judice) or section 7 (res judicata) of the Civil Procedure Act
No. Although some issues and the subject matter were the same as in Embu ELC No. 96 of 2017, the commonality-of-parties requirement was not met as the Petitioners were not parties to the previous suit.
Sections 6 and 7 require the matters in issue to be directly and substantially in issue in another suit between the same parties litigating under the same title. The Petitioners here had no opportunity to raise their grievances in the earlier injunction application since they were not parties to it. The application therefore could not be considered an abuse of process at that stage.
Whether an interlocutory injunction should issue
No. The Petitioners failed to establish a prima facie case; and in any event an injunction would be futile since construction was complete, and no imminent danger of alienation was shown.
Applying Giella v Cassman Brown, the court declined definitive pronouncements on the lease's legality, noting a caution or restriction does not render a lease illegal and non-registration does not void it. No material suggested EMCA non-compliance; the 5th Respondent swore the EIA licence was duly issued and the Petitioners never appealed to the National Environment Tribunal or protested. Since an operational gas station and supermarket already existed, equity would do nothing in vain.
Legal principles established
#- The corporate personality of a state corporation does not convert its landed property into private land; land held by a wholly state-owned corporation is public land under Article 62(1)(m) unless classified as community or private land
- An injunction cannot issue where the development sought to be restrained has already been completed, as a court will not make orders in futility
- Non-registration of a lease does not necessarily render it illegal or void ab initio; it may operate as a contract between the parties privy thereto
Court orders
#- 1.The Petitioners' notice of motion dated 25th October 2018 is dismissed in its entirety
- 2.Costs of the application shall be in the cause
- Jurisdiction invoked
- Articles 1, 2, 3, 22, 23, 35, 62, 162, 165, 258 and 259 of the Constitution of Kenya; Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Murithi Njeru & another (Suing on their behalf and on behalf of Kenyan Citizens) v Postal Corporation of Kenya & 4 others [2019] KEELC 2598 (KLR)", Case Analysis (2019). Not stated in the judgment (related to Embu ELC No. 96 of 2017 – Lincoln Muthui t/a Linco Stores v Postal Corporation of Kenya & Another). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2598/eng@2019-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.