Mwatsuma & 4 others (Suing in Their Capacity as the Bona Fide Occupants and Owners of Land No 368/11 /Mn, 370/11/Mn and 367/11/Mn Utange Mombasa) v Karama & 12 others (Constitutional Petition E004 of 2024) [2025] KEELC 6192 (KLR)
The bottom line
#A Mombasa court struck out a land rights petition, ruling you cannot re-litigate a decided dispute by calling it a constitutional case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition was res judicata and an abuse of court process
Yes - the entitlement to the suit properties had been conclusively determined in prior suits and on appeal; the Petition was a cosmetic re-packaging of the same dispute
The court traced prior litigation: ELC Case No. 179 of 2014, in which the Petitioners' adverse possession claim succeeded but was overturned by the Court of Appeal on 22nd July 2022, and ELC Case No. 113 of 2019, dismissed on 31st January 2024. Adding parties such as the Chief Land Registrar, County Government of Mombasa and National Land Commission, and renaming the dispute a constitutional petition, were cosmetic changes that did not affect the application of res judicata under Section 7 of the Civil Procedure Act.
Whether res judicata applies to claims of constitutional rights violations
Yes - following the Supreme Court in Kenya Commercial Bank Ltd v Muiri Coffee Estate Ltd, the doctrine applies to all categories of matters including constitutional rights
The court adopted the Supreme Court's exposition that res judicata is a doctrine of substantive law whose essence is that once legal rights are judicially determined, that determination stands conclusive. It noted the doctrine applies to matters of all categories including constitutional rights, citing comparative and Privy Council authority quoted in the Supreme Court decision.
Legal principles established
#- Res judicata applies to constitutional petitions; re-branding a concluded dispute as a fundamental rights petition with additional parties does not evade the doctrine
Court orders
#- 1.Both Motions dated 28th October 2024 and 19th February 2025 allowed and the Petition dated 26th January 2024 struck out
- 2.Petitioners directed to vacate the suit properties within 30 days, failing which the Respondents, under the supervision of the Officer Commanding Bamburi Police Station, at liberty to evict them
- 3.1st, 2nd and 5th Respondents awarded costs of the Petition and the applications
- Jurisdiction invoked
- Articles 19, 20, 21, 22, 23, 35 and 40 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwatsuma & 4 others (Suing in Their Capacity as the Bona Fide Occupants and Owners of Land No 368/11 /Mn, 370/11/Mn and 367/11/Mn Utange Mombasa) v Karama & 12 others (Constitutional Petition E004 of 2024) [2025] KEELC 6192 (KLR)", Case Analysis (2025). Constitutional Petition dated 26th January 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6192/eng@2025-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.