Nelson Ochieng & 4 others (Suing on their own behalf and behalf of their Families and all the Members of the over 2000 Residents of Mukuru Kwa Njenga Residential Area) v Nairobi Metropolitan Service & 213 others; Economic and Social Rights Centre (HAKIJAMII) & 3 others (Interested Parties)
The bottom line
#Mukuru Kwa Njenga residents' eviction case survived a bid to throw it out, though some claims were struck for being filed in the wrong court.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The doctrine does not apply because the prior suits cited by the applicant predated the cause of action complained of (the evictions and demolitions commencing 11 October 2021), and the applicant failed to demonstrate the ingredients in Section 7 of the Civil Procedure Act
The court reproduced the pleaded paragraphs showing the evictions began on 11 October 2021. The prior suits were filed in 1996, 2004, 2014, 2018 and 2020 and could not have litigated events that had not yet occurred. The applicant also failed to establish the ingredients of res judicata under Section 7 of the Civil Procedure Act, so that limb of the application was dismissed.
Jurisdiction of the Environment and Land Court
Prayers (a), (c), (f), (g) and (j) of the amended Petition fall within the jurisdiction of the High Court under Article 165(3) and not the ELC, and were struck out
The court examined the reliefs sought, which invoked constitutional articles substantially outside the ELC's mandate under Article 162(2)(b). Relying on Samuel K. Macharia and Phoenix of E.A. Assurance, it held that a court cannot expand its jurisdiction and that proceedings taken without jurisdiction are a nullity; the offending prayers were struck out while the remainder survived.
Legal principles established
#- A cause of action that arises in future cannot be barred by res judicata on the basis of earlier suits
- Courts derive jurisdiction from the Constitution or statute and cannot expand it by judicial craft or innovation
- Proceedings taken by a court without jurisdiction are a nullity
Court orders
#- 1.The limb of the application dated 13 October 2022 founded on the doctrine of res judicata is dismissed
- 2.Prayers (a), (c), (f), (g) and (j) of the amended Petition dated 5 September 2022 are struck out for want of jurisdiction
- 3.Prayers (b), (d), (e), (h), (i) and (k) of the amended Petition remain alive for ventilation before the court
- 4.Costs of the application shall abide the outcome of the Petition
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court), read with Article 165(3) on the limits of its jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nelson Ochieng & 4 others (Suing on their own behalf and behalf of their Families and all the Members of the over 2000 Residents of Mukuru Kwa Njenga Residential Area) v Nairobi Metropolitan Service & 213 others; Economic and Social Rights Centre (HAKIJAMII) & 3 others (Interested Parties)", Case Analysis (2023). Petition E050 & E048 of 2021 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18840/eng@2023-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.