Jamhuri Commercial Centre Welfare Association v Njuguna & 5 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Sub-judice
The plea fails: the previous suit (Milimani ELC 354 of 2012) was neither filed by nor involved the Petitioner, no pleadings were adduced, and the suit was dismissed for want of prosecution on 7th July 2022
The court applied the Supreme Court's test in KNCHR v AG that the invoking party must establish suits over the same subject matter between the same parties or their representatives. The previous suit was between the City Council of Nairobi and the 1st Respondent; the Petitioner was not privy to it and cannot be bound by its pleadings. Further, the plea required evidence and so was improperly raised as a preliminary objection.
Res judicata
Res judicata does not apply: the Petitioner was not a party to the previous suit, and that suit was disposed of without a plenary hearing, so not on the merits
Applying the Supreme Court's decision in John Florence Maritime Services, the court noted the elements of a former final judgment on the merits by a competent court between identical parties. The 1st Respondent made no extensive submissions on res judicata despite citing Section 7 of the Civil Procedure Act, and the previous suit was dismissed for want of prosecution without a determination on the merits.
Locus standi of an unincorporated welfare association
The Petitioner, an association acting for its members, has locus standi under Articles 22(2), 258 and 260 of the Constitution to mount the constitutional petition
Relying on Mumo Matemu (Court of Appeal) and Mitu-Bell Welfare Society (Supreme Court), the court held that the 2010 Constitution transformed locus standi, permitting associations and unincorporated bodies to sue in constitutional petitions in the interest of their members or the public. The private-law incapacity of unincorporated bodies does not apply to constitutional petitions.
Temporary injunction
The injunction application is dismissed because all prayers were interim-only, pending the hearing of the Application itself, with no substantive prayer pending the Petition; the court cannot grant relief not sought
The court observed the application was curiously crafted: every relief was to subsist 'pending the hearing and determination of this Application', leaving nothing to grant upon its determination. Applying the principle that parties are bound by their pleadings (IEBC v Mutinda Mule), the court declined to fashion relief. Whether the Petitioner's members have rights over the property was left to the plenary hearing.
Legal principles established
#- A party invoking sub-judice must adduce evidence of the pleadings in the previous suit; the plea cannot be sustained by merely citing the case file details
- Sub-judice, being evidence-backed, cannot be canvassed by way of preliminary objection, which must rest on pure points of law
- Under Articles 22 and 258 of the Constitution, unincorporated associations may institute constitutional petitions on behalf of their members; private-law capacity strictures do not apply
- Parties are bound by the reliefs they plead; a court cannot grant relief not sought
Court orders
#- 1.The Notice of Preliminary Objection dated the 4th of April 2022 is dismissed
- 2.The Application dated the 22nd of June 2022 is dismissed
- 3.The Application dated the 8th of March 2022 is dismissed
- 4.Each Party shall bear its own Costs of the Preliminary Objection and the named Applications
- 5.An order for the Maintenance of the Status Quo currently obtaining over LR No Nairobi/Block 63/787 pending the hearing and determination of the Petition
- 6.The Suit Property shall not be alienated, transferred, disposed of or otherwise charged by the 1st Respondent pending the hearing and determination of the Petition; if the title is currently charged, there shall be no further charge
- 7.The Parties are directed to take necessary steps to have the Petition listed for hearing and disposal within the next six (6) months
- Jurisdiction invoked
- Articles 22, 258 and 260 of the Constitution of Kenya, 2010 (constitutional petition filed in the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jamhuri Commercial Centre Welfare Association v Njuguna & 5 others", Case Analysis (2022). Environment & Land Petition E008 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15586/eng@2022-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.