Kamau t/a Unitex Commercial Agencies v Kariuki & 2 others (Environment & Land Petition E009 of 2024) [2025] KEELC 226 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether res judicata can be raised by way of preliminary objection in a constitutional petition
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.
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.
Whether the Petition is res judicata
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.
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.
Whether the Petitioner has locus standi
The court declined to make a separate determination on locus standi, considering it subsumed in the finding on res judicata.
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.
Legal principles established
#- 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
#- 1.The Petition is struck out as res judicata
- 2.The Preliminary Objection dated October 24, 2024 is upheld
- 3.Costs to the 1st Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.