Haji & 4 others (Suing for and on Behalf of One Hundred and Sixty Residents of Plot Number 232/XVII) v SBS Properties (2016) Limited & 3 others; National Land Commission & another (Interested Parties) (Constitutional Petition 03 of 2022) [2024] KEELC 544 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land dispute petition because it re-litigated issues already decided, and ordered the filers to pay the winners' costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition dated 10th February 2022 is res judicata in light of the judgment in ELC Constitutional Petition No. 155 of 2015
The Petition is res judicata, the issues having been pleaded, considered and determined by Matheka J in ELC Constitutional Petition No. 155 of 2015
The court compared paragraphs 1 to 55 of the Petition with the pleadings in ELC Constitutional Petition No. 155 of 2015 and found the issues substantially similar, with the Petitioner only re-clothing the dispute as a petition and referencing other properties as a means of forum shopping. The elements of Section 7 of the Civil Procedure Act were satisfied: same parties, same subject matter, determined by a competent court on 26th July 2022.
Whether the Petition amounts to an abuse of process and violates the doctrine of constitutional avoidance
Yes; the Petition abuses court process and offends constitutional avoidance because ordinary civil remedies in the Environment and Land Court were available
Relying on the dictum of Matheka J in the earlier petition and the authorities on constitutional avoidance cited there, the court held that disputes over ownership of land and payment of ground rent should be litigated in an ordinary civil claim, not by invocation of the Bill of Rights where the state is not a party. Filing the second petition with knowledge of the earlier suit was designed to circumvent the earlier proceedings.
Who bears the costs of the application
The Petitioners, jointly and severally
Costs follow the event and are discretionary under Rule 26(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2010. The Petition was the second one filed by the Petitioner, obliging the Applicants to defend their positions, so costs of both the petition and the two motions were awarded to the Applicants.
Legal principles established
#- The power to strike out pleadings is discretionary and must be exercised judicially, sparingly and cautiously
- Res judicata bars subsequent proceedings on issues finally decided by a competent court between the same parties
- Costs follow the event and are at the discretion of the court
Court orders
#- 1.The Notice of Motion application dated 22nd July, 2023 by the 1st and 2nd Applicants/Respondents be and is hereby found to have merit and is allowed in its entirety
- 2.The Petition and Notice of Motion application dated 10th February, 2022 is found to be 'Res Judicata' and is hereby struck out entirely
- 3.The 1st and 2nd Applicants/Respondents shall have the costs of the Petition dated 10th February, 2022 and of the Notices of Motion dated 10th February, 2022 and 22nd July, 2023, to be paid by the Petitioners jointly and severally
- Jurisdiction invoked
- Order 2 Rule 15(1)(b)(c) & (d) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3A & 7 of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Haji & 4 others (Suing for and on Behalf of One Hundred and Sixty Residents of Plot Number 232/XVII) v SBS Properties (2016) Limited & 3 others; National Land Commission & another (Interested Parties) (Constitutional Petition 03 of 2022) [2024] KEELC 544 (KLR)", Case Analysis (2024). ELC Constitutional Petition dated 10th February 2022 (number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/544/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.