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ELCStruck OutPetition dated 2024 (Nakuru ELC)· [2025] KEELC 226 (KLR)

Kamau t/a Unitex Commercial Agencies v Kariuki & 2 others (Environment & Land Petition E009 of 2024) [2025] KEELC 226 (KLR)

Environment and Land Court
30 January 2025
2,883 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Nakuru struck out a land petition because the same property dispute had already been fully decided, confirming you cannot re-litigate through the Constitution.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru determines a Notice of Preliminary Objection dated October 24, 2024 filed by the 1st Respondent against a Petition by Joseph Wainaina Kamau concerning land parcel Nakuru Municipality Block 22/1719 (Muguga). The objection raised six grounds: res judicata, want of locus standi, non-disclosure of material facts, lack of jurisdiction to entertain land matters by petition, functus officio, and absence of any prayer in the Petitioner's favour. The Petitioner opposed the objection, arguing that res judicata could not be established on the pleaded facts, that locus standi required interrogation of evidence, and that the court was not functus officio. Applying Mukisa Biscuits and the Supreme Court's decision in John Florence Maritime Services, the court held that res judicata may be raised as a preliminary objection even in a constitutional petition, absent special circumstances. The Petitioner had himself admitted in the Petition that the same parcel had been heard and determined in Nakuru HCCC No. 130 of 2010 and on appeal in Nakuru CACA No. 33 of 2015. The court found all elements of Section 7 of the Civil Procedure Act satisfied, declined to reopen the matter to avoid overturning the Court of Appeal judgment contrary to stare decisis, and declined to make a separate finding on locus standi. The Preliminary Objection was upheld, the Petition struck out, and costs awarded to the 1st Respondent.

Key legal issues

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01

Whether res judicata can be raised by way of preliminary objection in a constitutional petition

Holding

Yes. Relying on the Supreme Court's decision in John Florence Maritime Services, the court held that res judicata applies to constitutional litigation and may be raised as a preliminary objection unless special circumstances warrant an exception.

Reasoning

The court relied on the Supreme Court's holding that res judicata is founded on the principle of finality and public policy, and that allowing parties to escape it by merely invoking constitutional provisions would dilute the doctrine. The court was required to consider whether refusing to hear the matter would occasion substantial injustice, and found no special circumstances here since the same land had been litigated to finality in the High Court and the Court of Appeal.

p. 4
02

Whether the Petition is res judicata

Holding

The Petition is res judicata. The Petitioner admitted the same subject matter, Nakuru Municipality Block 22/1719 (Muguga), was heard and determined in Nakuru HCCC No. 130 of 2010 and on appeal in Nakuru CACA No. 33 of 2015.

Reasoning

The court applied the test in Bernard Mugo Ndegwa and Section 7 of the Civil Procedure Act: identical matter, same parties or parties litigating under the same title, concurrence of jurisdiction and finality. All elements were met. The court declined to hear the matter as doing so would amount to overturning the Court of Appeal judgment contrary to stare decisis. The Petitioner was attempting to revive determined issues.

p. 5
03

Whether the Petitioner has locus standi

Holding

The court declined to make a separate determination on locus standi, considering it subsumed in the finding on res judicata.

Reasoning

The court found that since the same issues had been determined with finality by a court of concurrent jurisdiction, the Petitioner had no business filing the suit in the first place, making a separate locus standi analysis unnecessary.

p. 6

Legal principles established

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  • The doctrine of res judicata applies to constitutional petitions; parties cannot circumvent it by invoking constitutional provisions
  • A suit is barred by res judicata only when it was heard and determined on the substantive merits, not on preliminary technical points
  • Adding or subtracting litigants does not sanitize a suit that is substantially related to a previous suit with the same subject matter
  • A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct

Court orders

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  1. 1.The Petition is struck out as res judicata
  2. 2.The Preliminary Objection dated October 24, 2024 is upheld
  3. 3.Costs to the 1st Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Articles 48, 50, 159
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 99
  • Civil Procedure RulesOrder 21 Rule 3(3)

Cases cited (20)

  • Julieta Marigu Njagi vs Virginia Njoki Mwangi & Anor
    (2022) eKLR
  • Richard Wewafwa Songoi vs Ben Munyifwa Songoi
    Kisumu CACA No 110 of 2016
  • William Koross (Legal Personal Representative of Elisha C.A Koross) vs Hezekaih Kiptoo Komen & 4 others
    (2015) eKLR
  • John Florence Maritime Services Ltd & another vs Cabinet Secretary Transport and Infrastructure & 3 others
    (2021) eKLR
  • CFC Stanbic Bank Ltd vs Attorney General & Another
    [2013] eKLR
  • Raila Odinga & 2 others vs Independent Electoral & Boundaries Commission & 3 others
    [2013] eKLR
  • Telcom Kenya Ltd vs John Ochanda (Suing on his own behalf and on behalf of 996 Former Employees of Telcom Kenya Limited)
    2014
  • Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 others
    [2017] eKLR
  • Oraro vs Mbaja
    (2005) 1 KLR 141
  • George Kamau & 4 others vs County Government of Trans Nzoia & another
    (2014) eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    (2014) eKLR
  • Law Society of Kenya vs Commissioner of Lands & Others
    Nakuru High Court Civil Case No 464 of 2020
  • Alfred Njau and others vs City Council of Nairobi
    (1982) KAR 229
  • Quick Enterprises Ltd vs Kenya Railways Corporation
    Kisumu High Court Civil Case No 22 of 1999
  • Presbyterian Foundation & another vs East Africa Partnership Ltd & another
    [2012] eKLR
  • Jersey Evening Post Limited vs A. Thani
    [2002] JLR 542
  • Tee Gee Electrics and Plastics Company Ltd vs Kenya Industrial Estates Limited
    [2005] KLR 97
  • Bernard Mugo Ndegwa vs James Nderitu Githae and 2 Others
    (2010) eKLR
  • Diocese of Eldoret Trustees (Registered) vs Attorney General (on behalf of the PS Treasury) & Another
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction over land disputes); Article 40 of the Constitution invoked by the Petitioner

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, "Kamau t/a Unitex Commercial Agencies v Kariuki & 2 others (Environment & Land Petition E009 of 2024) [2025] KEELC 226 (KLR)", Case Analysis (2025). Petition dated 2024 (Nakuru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/226/eng@2025-01-30

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