Musembi & 9 others v Attorney General & 12 others (Petition E007 of 2025) (Environment and Land) [2025] KEELC 7582 (KLR)
The bottom line
#Kenya's Environment and Land Court in Voi struck out a land petition because the same issues had already been decided, confirming you cannot re-litigate by adding new parties.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition is res judicata
Yes - the issues, prayers and parties are substantially similar to Mombasa ELC Petition No. 6 of 2019, in which the Petitioners participated
The Court compared the pleadings, prayers and parties in both suits as required by Section 7 of the Civil Procedure Act and the Supreme Court's guidance in John Florence Maritime. It found the Petitioners were parties to the earlier petition concerning L.R No. 5865/2, from which Schemes 889 and 890 emanate, and that the new reliefs would require reconsideration of issues already determined. Adding parties does not cure res judicata.
Whether the Court is functus officio
Yes - having rendered judgment in ELC No. 6 of 2019 and with the Court of Appeal seized of the appeal, the Court became functus officio
Applying the finality principle as explained by the Supreme Court in Raila Odinga (citing Pretorius), the Court noted that a court becomes functus officio upon pronouncing judgment. Since judgment was delivered in ELC No. 6 of 2019 and an appeal (Mombasa Civil Application No. E058 of 2023) is pending before the Court of Appeal, this Court has no further competence over the matter.
Whether the Speaker of the National Assembly was wrongly joined
Not determined - unnecessary after the findings on res judicata and functus officio
Having resolved the first two issues against the Petitioners, the Court declined to address the remaining issue regarding the joinder of the Speaker of the National Assembly, as the Petition had already been struck out.
Legal principles established
#- Res judicata applies to constitutional petitions and to matters of all categories, including issues of constitutional rights
- Parties cannot evade res judicata by adding parties or causes of action in a subsequent suit
Court orders
#- 1.The Petition filed herein is hereby struck out.
- 2.Each party to bear own costs.
- Jurisdiction invoked
- Article 162(2) of the Constitution (Environment and Land Court) - not expressly cited; jurisdiction assumed under the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musembi & 9 others v Attorney General & 12 others (Petition E007 of 2025) (Environment and Land) [2025] KEELC 7582 (KLR)", Case Analysis (2025). Petition No E007 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7582/eng@2025-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.