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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Petition is res judicata given the prior judicial review proceedings in Kwale ELC JR No. E004 of 2022
Res judicata was not established because the JR proceedings were terminated by a preliminary objection and were not heard and determined on the merits
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.
Whether the Petition offends the doctrine of constitutional avoidance and the exhaustion of internal dispute resolution mechanisms under the Land Adjudication regime
The Petition met the threshold of a constitutional petition; constitutional avoidance is not applicable
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.
Whether the Petitioners' application met the threshold for temporary injunctive orders under Giella v Cassman Brown
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
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.
Legal principles established
#- 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
#- 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.The Notice of Motion application dated 11th December, 2024 by the Affected Parties be and is hereby dismissed
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.