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ELCDismissedELC Case (Originating Summons dated 30th October 2020)· [2025] KEELC 105 (KLR)

Golf Range Limited v Gitau & 7 others (Enviromental and Land Originating Summons E023 of 2020) [2025] KEELC 105 (KLR)

Environment and Land Court
23 January 2025
3,150 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court threw out a landowner's second lawsuit over the same property, confirming you cannot re-litigate an already-decided dispute by simply adding new parties.

What this practically means

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Executive summary

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The Plaintiff, registered owner of L.R No. 11746 and claiming 30 years' possession of the suit property (L.R No. 209/15290, which partly houses the Carnivore Restaurant), filed an Originating Summons seeking a temporary injunction against eviction or demolition, consolidation with ELC No. 120 of 2008, and costs. The 1st - 7th Defendants filed a Notice of Motion seeking striking out of the suit as res judicata and an abuse of process, plus positive orders for a survey, beacon replacement, a surveyor's report and removal of structures, and also raised a preliminary objection on res judicata, the National Land Commission proceedings, and misjoinder. The 8th Defendant opposed injunctive relief and argued res judicata arising from ELC No. 125 of 2017, in which the Plaintiff's adverse possession claim against it was dismissed. The court set out the Mukisa Biscuits definition of a preliminary objection and the elements of res judicata from Section 7 of the Civil Procedure Act and John Florence Maritime Services. It found the orders sought in both suits similar and the cause of action (adverse possession of the same property) identical; the addition of the 1st - 7th Defendants was a cosmetic facelift to evade res judicata. The court also held that adverse possession lies only against a title holder, not holders of letters of allotment, and that a party who has not exercised the right of review cannot relitigate. The Plaintiff's application was dismissed, the Defendants' application was partially allowed only to the extent of dismissing the suit, and the positive orders were refused, with costs to the Defendants.

Key legal issues

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01

Whether the instant suit is res judicata with respect to ELC No. 125 of 2017

Holding

The suit is res judicata; the addition of the 1st - 7th Defendants was a cosmetic facelift to evade the doctrine, and the cause of action and orders sought are the same as in the former suit.

Reasoning

The court applied the elements of res judicata from John Florence Maritime Services and Section 7 of the Civil Procedure Act. Although the parties in the two suits differ, the Plaintiff is claiming adverse possession of the same suit property in both, seeking similar orders. Relying on Omondi v National Bank of Kenya, the court held that adding parties or causes of action cannot evade res judicata. The Plaintiff's failure to seek review of the prior judgment, and the fact that adverse possession lies only against a title holder, confirmed the finding.

p. 6
02

Whether the Plaintiff's application for temporary injunction and consolidation could be granted

Holding

The application was dismissed because the suit itself is res judicata.

Reasoning

Having found the suit res judicata, the court declined to consider the injunctive and consolidation prayers. The application was predicated on the survival of the suit, which had been defeated by the doctrine of res judicata as pleaded in the Defendants' preliminary objection and notice of motion.

p. 7
03

Whether the Defendants' positive orders (survey, beacon replacement, removal of structures) could be granted alongside dismissal of the suit

Holding

No; a party cannot seek dismissal of a suit while at the same time asking for positive orders regarding the suit property in the same suit.

Reasoning

The court held that having succeeded in having the suit dismissed as res judicata, the Defendants could not obtain positive prayers within that same suit; they must file a distinct suit. The application was therefore only partially allowed to the extent of dismissal and costs.

p. 6

Legal principles established

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  • A claim of adverse possession can only lie as against a title holder, and not people holding letters of allotment
  • Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit
  • A litigant who fails to exercise the right of review cannot re-litigate the same matter in a fresh suit

Court orders

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  1. 1.The Originating Summons dated 30th October 2020 be and is hereby dismissed by reason of being Res Judicata
  2. 2.The Plaintiff to pay the costs of the suit and the applications
  3. 3.The Plaintiff's application dated 30th October 2020 is dismissed

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 7 and 8
  • Civil Procedure RulesOrder 1 Rule 3; Order 2 Rules 9 and 15; Order 11 Rule 3; Order 37 Rule 7(2); Order 40 Rule 1; Order 51 Rule 1
  • Limitation of Actions ActSections 37 and 38

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • John Florence Maritime Services Limited & Another vs Cabinet Secretary Transport & Infrastructure & 3 others
    [2021] KESC 39 (KLR)
  • George W M Omondi & Another vs National Bank of Kenya Ltd & 2 Others
    [2001] KEHC 841 (KLR); (2001) EA 177
  • Mwangi Njangu v Meshack Mbogo Wambugu
    Nairobi HCCC No 2340 of 1991 (unreported)
  • ET v Attorney-General & another
    (2012) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A, 7 and 8 of the Civil Procedure Act and the Civil Procedure Rules, on the suit and interlocutory applications

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Golf Range Limited v Gitau & 7 others (Enviromental and Land Originating Summons E023 of 2020) [2025] KEELC 105 (KLR)", Case Analysis (2025). ELC Case (Originating Summons dated 30th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/105/eng@2025-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.