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ELCPartially AllowedNot stated in the judgment (Constitutional Petition, Environment and Land Court, Kwale)· [2025] KEELC 3243 (KLR)

Chondo & another (As Administrators of Safari Chondo) v Cabinet Secretary, Ministry of Lands Public Works Housing & Urban Development & 6 others; Jawa & 2 others (Affected Party) (Environment & Land Petition E005 of 2024) [2025] KEELC 3243 (KLR)

Environment and Land Court of Kenya
2 April 2025
7,740 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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A Kwale court ruled a land dispute petition could proceed because an earlier case was never properly decided, and ordered both sides to keep the land as it is.

What this practically means

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Executive summary

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This omnibus ruling of the Environment and Land Court at Kwale (L.L. Naikuni J, dated 2 April 2025) disposes of two interlocutory applications in a constitutional petition concerning Parcel No. 358 Kinango B Adjudication Section. The Petitioners sought an injunction restraining implementation of the Minister's decision in Land Appeal Case No. 394 of 2021 pending the petition, alleging bias and non-disclosure of interest by members of the Land Adjudication Committee. The 1st to 3rd Affected Parties applied for dismissal of the petition as res judicata, relying on Kwale ELC JR No. E004 of 2022, and for vacation of interim status quo orders, arguing constitutional avoidance and failure to exhaust internal remedies under the Land Adjudication Act, Cap. 284. The court framed four issues. On res judicata, it held that the prior judicial review was terminated by a preliminary objection on locus and jurisdiction and was therefore not 'heard and finally decided' on the merits, applying Tee Gee Electrics; the plea failed. On constitutional avoidance, the court found the petition pleaded precise violations of land rights and fair hearing, met the constitutional petition threshold per Mumo Matemu, and the avoidance doctrine did not apply. On the injunction, applying Giella v Cassman Brown and Nguruman, the court found a prima facie case and irreparable harm, but since both parties occupy the suit property, it maintained status quo orders rather than a conventional injunction and declined to vacate them. The Affected Parties' application was dismissed. Each party was ordered to bear its own costs, and a pre-trial conference was set for 12th June 2025.

Key legal issues

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01

Whether the Petition is res judicata given the prior judicial review proceedings in Kwale ELC JR No. E004 of 2022

Holding

Res judicata was not established because the JR proceedings were terminated by a preliminary objection and were not heard and determined on the merits

Reasoning

Section 7 of the Civil Procedure Act requires that the matter in the former suit was 'heard and finally decided'. The JR suit was handled by the court's predecessor, Lady Justice Dena, and its pleadings were not availed. The court noted the JR was terminated on a preliminary objection on locus and jurisdiction, was not on infringement of rights, and relying on Tee Gee Electrics held that dismissal on preliminary technical points does not give rise to a judgment on the merits.

p. 9
02

Whether the Petition offends the doctrine of constitutional avoidance and the exhaustion of internal dispute resolution mechanisms under the Land Adjudication regime

Holding

The Petition met the threshold of a constitutional petition; constitutional avoidance is not applicable

Reasoning

The court traced the dispute through the Kinango Land Disputes Tribunal, the District Adjudication process, and Land Appeal No. 394 of 2021 before the Minister, which partially allowed the appeal. The Petitioners plead abuse of their land ownership rights and violation of fair hearing; whether these are true is a matter for hearing. Given the precise claims made, and relying on Mumo Matemu on the importance of precise claims, the petition threshold was met and avoidance doctrine did not apply.

p. 11
03

Whether the Petitioners' application met the threshold for temporary injunctive orders under Giella v Cassman Brown

Holding

A prima facie case and irreparable harm were demonstrated; however, status quo orders rather than an injunction suffice given both parties' occupation of the land

Reasoning

Applying Giella and Nguruman sequentially, the court found a prima facie case with probability of success and that damages would not adequately compensate the Petitioners. On balance of convenience, both parties are in occupation, so the court opted to maintain status quo orders, distinguishing status quo from injunction per Murithi J in the Baobab Beach Resort case, and declined to vacate the earlier orders.

p. 14

Legal principles established

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  • A suit is barred by res judicata only where the former suit was heard and finally decided on the substantive merits; dismissal on a preliminary technical point does not trigger the plea
  • A petition that raises specific, justiciable allegations of violation of rights meets the constitutional petition threshold and the doctrine of constitutional avoidance does not apply
  • Where both parties are in occupation of the suit property, status quo orders (as distinct from an injunction) suffice pending determination of the petition

Court orders

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  1. 1.The Notice of Motion application dated 28th June, 2024 be and is hereby allowed in that the status quo be maintained on the suit property, the Respondents, its officers, subordinates, agents, assigns, employees and/or any other person whosoever being barred from implementing the 4th Respondent's and/or the Minister's decision in Land Appeal Case No 394 of 2021 in relation to Parcel No 358 Kinango B Adjudication Section
  2. 2.The Notice of Motion application dated 11th December, 2024 by the Affected Parties be and is hereby dismissed
  3. 3.Mention on 12th June, 2025 for a Pre-Trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010 on directions to dispose of the Constitution Petition
  4. 4.Each party to bear its own costs
Jurisdiction invoked
Constitution of Kenya, 2010 (petition for enforcement of fundamental rights); applications under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap. 21, Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Rule 19 of the Protection of Rights and Fundamental Freedoms Practice and Procedure Rules 2013

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, "Chondo & another (As Administrators of Safari Chondo) v Cabinet Secretary, Ministry of Lands Public Works Housing & Urban Development & 6 others; Jawa & 2 others (Affected Party) (Environment & Land Petition E005 of 2024) [2025] KEELC 3243 (KLR)", Case Analysis (2025). Not stated in the judgment (Constitutional Petition, Environment and Land Court, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3243/eng@2025-04-02

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