Galot Industries Limited & 2 others v Machakos County Government & 4 others; Erdemann Property Limited & 4 others (Interested parties) [2022] KEELC 498 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to strike out a land petition challenging a change of user, ruling affected residents deserve their day in court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition is res judicata
Res judicata not established; the prior decisions relied on were from NET (a tribunal not equatable to the ELC) and the parties were not litigating under the same title
The court applied Section 7 of the Civil Procedure Act and the conjunctive elements in IEBC v Maina Kiai. None of the decisions furnished determined the fulcrum of the Petition, namely the lack of participation of the project most affected persons before grant of Change of User. Some suits were undetermined, and in ELC No. 104 of 2020 and Mohan Galot the parties were not litigating under the same title.
Whether the Petition is res sub judice
Sub judice not established because the Petition seeks orders not found in the other pending suits
The court noted that other orders sought in the Petition are not present in the other suits and claims, and that the court is expected to deal with those distinct prayers. The prayer to strike out on this ground was therefore disallowed.
Whether the 1st Interested Party has locus standi to apply to strike out the Petition
The 1st Interested Party lacked locus standi to move the court to strike out the Petition
Relying on Muruatetu and Trusted Society of Human Rights Alliance v Mumo Matemo, the court held that an interested party enjoined in a suit cannot seek to strike it out on grounds of defective pleadings, since a suit is owned solely by the parties to it.
Whether the doctrine of exhaustion bars the Petition
Exhaustion does not bar the Petition because constitutional issues are the preserve of the ELC, and the Petitioners could not appeal having been unaware of the change of user decision
While concurring that the exhaustion doctrine applies generally, the court held no tribunal can determine constitutional questions. Further, it was uncontroverted that the Petitioners were unaware of the change of user process, so they could not appeal under Section 41 of the repealed Physical Planning Act within the requisite time.
Legal principles established
#- An interested party cannot be heard to seek to strike out a suit on grounds of defective pleadings; a suit is owned solely by the parties
- For res judicata to apply the former suit must have been heard and finally determined by a competent court between the same parties litigating under the same title
- No tribunal has jurisdiction to determine constitutional issues; that is the preserve of the Environment and Land Court under Section 13 of the Environment and Land Court Act
Court orders
#- 1.The Notice of Motion Application dated 5th March 2021 and Notice of Preliminary Objection dated 22nd March, 2021 are disallowed as unmerited
- 2.The Petition and the Petitioners' Notice of Motion Application are not struck out
- 3.Costs in the cause
- 4.Petition to be set down for hearing on its merits
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13(2)(a) and (e) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chata v County Government of Kakamega & 2 others (Environment and Land Appeal E001 of 2023) [2026] KEELC 1126 (KLR)[2026] KEELC 1126 (KLR)25 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Galot Industries Limited & 2 others v Machakos County Government & 4 others; Erdemann Property Limited & 4 others (Interested parties) [2022] KEELC 498 (KLR)", Case Analysis (2022). Machakos ELC Petition No. 6 of 2020 (Petition dated 6th November, 2020) - ruling on Notice of Motion dated 5th March, 2021 and Preliminary Objection dated 22nd March, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/498/eng@2022-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.