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ELCDismissedELC Petition E071 of 2024· [2025] KEELC 425 (KLR)

Sikalie (Suing as the Chairperson of KLDA) v De La Salle Brothers & 5 others (Environment & Land Petition E071 of 2024) [2025] KEELC 425 (KLR)

Environment and Land Court
6 February 2025
2,011 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a Karen land dispute petition because the same issues had already been decided, and ordered the petitioner to pay costs.

What this practically means

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Executive summary

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The 1st Respondent, De La Salle Brothers, filed a Motion dated 15th October 2024 seeking to strike out the Petitioner's Petition E071 of 2024, which challenged the approval by Nairobi City County of a change of user and development permission on LR No. 7943, Marula Lane, Karen. The Petitioner sought declarations against the approval process and constitutional contraventions, mandamus to compel maintenance of registers, and an injunction against commencement of development. The 1st Respondent argued the suit was similar to previous suits and that the court lacked jurisdiction. The Petitioner opposed, contending the issues raised were new, including breaches of article 10 of the Constitution and section 61 of the PLUPA. The court analysed the doctrine of res judicata under sections 6 and 7 of the Civil Procedure Act, noting two prior determinations: Nairobi ELC Petition E027 of 2022 (decided by Lucy N Mbugua J on 21st November 2023) and the Nairobi City County Physical and Land Use Planning Liaison Committee Complaint E017 of 2024 (decided 20th August 2024). It found the issues in the current Petition had been directly and substantially in issue in the former suits between the same parties, and that reliefs on registers had already been granted by the Liaison Committee. Entertaining the Petition would amount to reviewing a decision of a court of concurrent jurisdiction through the back door. The Petition was dismissed as res judicata, with half costs awarded to the 1st Respondent, the court departing from the usual reluctance to award costs against petitioners because the Petition unnecessarily incurred legal costs.

Key legal issues

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01

Res judicata under sections 6 and 7 of the Civil Procedure Act

Holding

The Petition is res judicata Nairobi ELC Petition E027 of 2022 and the Liaison Committee Complaint E017 of 2024; the issues were litigated and determined between the same parties

Reasoning

The court applied section 7 of the Civil Procedure Act, holding that the matters in the present Petition were directly and substantially in issue in the former suit, between the same parties litigating under the same title, in courts of competent jurisdiction, and were finally decided. Any matter which might and ought to have been raised was deemed raised; reliefs not expressly granted are deemed refused.

p. 3
02

Whether a res judicata objection raised by application (not preliminary objection) is competent

Holding

Yes; because the 1st Respondent moved by notice of motion, evidence could be annexed, distinguishing the Mukisa Biscuit principle

Reasoning

The Petitioner argued, citing Mukisa Biscuit, that a point of law should not require adduction of evidence. The court held that since the 1st Respondent had moved by way of application, they could annex evidence, including the judgments in the previous suits, to establish res judicata.

p. 3
03

Costs in constitutional petitions

Holding

Half costs awarded to the 1st Respondent despite the usual reluctance to award costs against petitioners, because the Petition unnecessarily incurred legal costs

Reasoning

Under section 27 of the Civil Procedure Act costs are discretionary. Although courts are hesitant to award costs against petitioners in constitutional petitions, the Petitioner here unnecessarily caused the 1st Respondent to incur legal costs by filing this petition instead of pursuing other avenues.

p. 4

Legal principles established

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  • A court of concurrent jurisdiction cannot review an earlier decision through a fresh suit; a petition raising the same issues between the same parties is barred by res judicata

Court orders

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  1. 1.ELC Petition E071 of 2024 is dismissed for being res judicata
  2. 2.Half costs of the application and the Petition to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure Actsection 1B
  • Civil Procedure Actsections 5 and 6
  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 27
  • Physical Planning and Land Use Act (PLUPA)section 61
  • Constitution of Kenyaarticle 10

Cases cited (1)

  • Mukisa Biscuit Manufacturing Co Ltd –vs- West End Distributors
    (1969) EA 696
Jurisdiction invoked
Article 162(2)(b) of the Constitution / Environment and Land Court Act (ELC original jurisdiction)

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, "Sikalie (Suing as the Chairperson of KLDA) v De La Salle Brothers & 5 others (Environment & Land Petition E071 of 2024) [2025] KEELC 425 (KLR)", Case Analysis (2025). ELC Petition E071 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/425/eng@2025-02-06

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