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ELCStruck OutNot stated in the judgment (Voi ELC Petition, struck out on preliminary objection)· [2025] KEELC 4449 (KLR)

Mabirika & 203 others v Director Land Adjudication & Settlement & 2 others; National Assembly & 3 others (Interested Parties) (Environment & Land Petition E011 of 2024) (Environment and Land) [2025] KEELC 4449 (KLR)

Environment and Land Court
12 June 2025
3,499 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Voi (E. K. Wabwoto, J) determines preliminary objections by the 1st, 2nd and 3rd Respondents, the 3rd Interested Party and the 4th Interested Party against a petition concerning LR No. 5865/2 Taveta (the former Basil Criticos farm, sold by chargee's auction to Settlement Fund Trustees for resettlement of squatters). The objectors contended the petition was res judicata in view of Mombasa ELC Petition No. 6 of 2019 (Mathenge Ramathani Kamozu & Others v Attorney General & 7 Others), in which a court dismissed, on the merits after affidavit and viva voce evidence, a petition by over a thousand squatters seeking similar declarations and injunctions over the same land; and that the court was functus officio since the matter was before the Court of Appeal in Mombasa Civil Application No. E058 of 2023. Defect for want of a supporting affidavit and Rule 3(8) of the Mutunga Rules were also raised. The Petitioners argued their petition involved different and additional parties, distinct reliefs including resurvey, issuance of titles and damages, and enforcement of rights accrued from long uninterrupted occupation. The court applied the res judicata test from John Florence Maritime Services (Supreme Court) and found the petition substantially similar in cause of action, with parties in privity with the earlier suit, and struck it out. Each party was ordered to bear its own costs. The court declined to address the remaining objections, holding they need not be determined given the res judicata finding.

Key legal issues

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01

Whether the Petition is res judicata in view of Mombasa ELC Petition No. 6 of 2019

Holding

The Petition is res judicata; it has a substantially similar cause of action and involves parties in privity with the earlier decided petition

Reasoning

The court compared the reliefs sought: both petitions concerned occupation of, and entitlements over, LR No. 5865/2 Taveta. The earlier petition was heard on affidavit and viva voce evidence and dismissed on the merits on 23rd January 2023. Allowing reconsideration would re-open the matter and abuse court process. Changes of parties and some additional reliefs do not cure the fatality.

p. 7
02

Whether the court is functus officio and other objections (want of supporting affidavit, Rule 3(8) of the Mutunga Rules)

Holding

Not determined; the res judicata finding disposed of the objections

Reasoning

Having found the petition res judicata, the court held it unnecessary to address the remaining grounds raised in the preliminary objections, including functus officio based on the pending Court of Appeal application, want of a supporting affidavit, and dismissal under Rule 3(8) of the Mutunga Rules.

p. 7

Legal principles established

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  • To succeed in res judicata, a party must demonstrate a former final judgment on the merits rendered by a court of competent jurisdiction between identical parties or those in privity, on the same subject matter and cause of action
  • Res judicata bars a litigant or persons claiming under the same title from returning to court to claim further reliefs not claimed in the earlier action
  • A substantially similar cause of action with parties in privity with an earlier suit renders the later petition res judicata even where new parties and additional reliefs are introduced

Court orders

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  1. 1.The Petition filed herein is hereby struck out for being res judicata in view of MSA ELC Petition No. 6 of 2019 Mathenge Ramathani Kamozu & Others =Versus= Attorney General and 7 Others
  2. 2.Each party to bear own costs of the Petition
Jurisdiction invoked
Articles 159(2)(d) and 50(1) of the Constitution invoked by Petitioners; res judicata doctrine under section 7 Civil Procedure Act principles as stated in John Florence Maritime Services (KESC 39 (KLR))

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, "Mabirika & 203 others v Director Land Adjudication & Settlement & 2 others; National Assembly & 3 others (Interested Parties) (Environment & Land Petition E011 of 2024)  (Environment and Land) [2025] KEELC 4449 (KLR)", Case Analysis (2025). Not stated in the judgment (Voi ELC Petition, struck out on preliminary objection). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4449/eng@2025-06-12

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