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ELCDismissedThika ELC Appeal (ruling delivered virtually at Meru ELC) - appeal from Ruiru SPMC MCEL No. 88 of 2020· [2025] KEELC 135 (KLR)

Kamoro v Bushline Properties Company Limited & another (Environment and Land Appeal E121 of 2022) [2025] KEELC 135 (KLR)

Environment and Land Court
22 January 2025
5,151 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed an attempt to strike out a land dispute suit, confirming that a decided judicial review case doesn't block later private claims.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court (B M Eboso J) against a ruling of Hon C A Otieno Omondi dated 30/11/2022 in Ruiru SPMC MCEL No. 88 of 2020, dismissing the appellant's application to strike out the respondents' suit on grounds of res judicata, res subjudice and abuse of court process, each premised on the judgment in Thika ELC Judicial Review Application No. 7 of 2018, in which Gacheru J had ordered the Land Registrar to fix the boundaries of the suit parcels. The respondents' trial suit alleged encroachment by the appellant on parcels Ruiru/Ruiru East Block 2/19084 and 19085 and sought injunctive relief and damages. The court framed three issues: res judicata, res subjudice and abuse of process. On res judicata, it held the causes of action, parties and reliefs in the two suits differed - the JR sought public law mandamus against the Thika Lands Office, which was not a party to the private law trespass suit. On subjudice, the JR had already been decided before the 2020 suit was filed, so no prior suit was pending. On abuse of process, no evidence of a multiplicity of suits was adduced. The court declined to entertain the appellant's new argument on lack of jurisdiction under Sections 18 and 19 of the Land Registration Act because it had not been raised in the application before the trial court. The appeal was dismissed with costs to the appellant's burden under Section 27 of the Civil Procedure Act, and the trial court's ruling was effectively affirmed.

Key legal issues

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01

Res judicata

Holding

The suit was not res judicata; the causes of action, parties and reliefs in the JR application and the trial suit differ

Reasoning

The JR application sought mandamus compelling the Land Registrar to fix boundaries, a public law remedy against a public office, while the trial suit sought injunction and damages for encroachment against a private party. The Thika Lands Office, the only respondent in the JR, was not a party to the trial suit. The elements of res judicata were therefore not established.

p. 8
02

Res subjudice

Holding

The suit was not subjudice; the prior suit had been decided before the trial suit was filed

Reasoning

Section 6 of the Civil Procedure Act bars trial of a suit where the matter is in issue in a previously instituted pending suit. The JR application had been disposed by judgment of Gacheru J on 29/11/2019, before the 2020 suit. Parties and causes of action also differed. Subjudice was not established.

p. 8
03

Abuse of court process / multiplicity of suits

Holding

Abuse of process was not proved; no evidence of multiple suits was presented

Reasoning

The only suit identified was the decided JR application, a public law case. The appellant adduced no evidence of any pending or past suit on the same cause of action as the trial suit, so the plea of multiplicity and abuse of process failed.

p. 9
04

Jurisdiction under Sections 18 and 19 of the Land Registration Act

Holding

The issue was unprocedurally raised for the first time on appeal and was not considered

Reasoning

The motion dated 2/10/2022 did not seek striking out on the ground of lack of jurisdiction under Section 18 of the Land Registration Act, so neither the lower court nor the respondents were invited to address it. A new jurisdictional ground cannot be introduced at appellate stage.

p. 9

Legal principles established

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  • A first appellate court must re-evaluate the whole evidence and reach its own independent conclusions
  • Res judicata requires the same matter directly and substantially in issue between the same parties in a former suit heard and finally decided by a competent court
  • Res subjudice applies only to pending prior suits; a decided suit cannot found a plea of subjudice
  • A party cannot introduce a new ground (such as lack of jurisdiction) on appeal when it was not raised in the application before the trial court

Court orders

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  1. 1.The appeal is rejected and dismissed
  2. 2.The appellant shall bear costs of the appeal
  3. 3.The relevant original court file shall be returned to Thika ELC forthwith and the Thika ELC Registry shall upload the ruling onto the CTS immediately

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 27
  • Land Registration ActSections 18, 18(2) and 19

Cases cited (12)

  • Philes Nyokabi Kamau vs Industrial & Commercial Development Corporation
    (2017)eKLR
  • Kenya Airports Authority vs Mitu-Bell Welfare Society & 2 Others
    [2016]
  • Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR
  • Edward R. Ouko vs Speaker of the National Assembly & 4 Others
    [2017]eKLR
  • Management of the National Hospital Insurance Fund Ex-parte Central Organization of Trade Unions
    [2006]eKLR
  • Republic vs City Council of Nairobi & 2 Others
    [2014]eKLR
  • Richard Kiplagat Sigei vs Grace Sang
    [2020]eKLR
  • ASL Credit Limited vs Abdi Basid Sheikh Ali & Another
    [2019]eKLR
  • DEN vs PNN
    [2015]eKLR
  • Susan Munyi v Keshar Shiani
    (2013) eKLR
  • Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR
  • Kenya Commercial Bank Vs Muiri Cofiee Estate Limited & another
    [2016]eKLR
On appeal from
Ruiru Senior Principal Magistrate's Court (ruling by Hon C A Otieno Omondi)
Ruiru SPMC MCEL No. 88 of 2020
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over the subordinate court's ruling in a land matter

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kamoro v Bushline Properties Company Limited & another (Environment and Land Appeal E121 of 2022) [2025] KEELC 135 (KLR)", Case Analysis (2025). Thika ELC Appeal (ruling delivered virtually at Meru ELC) - appeal from Ruiru SPMC MCEL No. 88 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/135/eng@2025-01-22

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