Nduati v Njogu & 2 others (Suing as Trustees of Nyayo Market Self-Help Group) (Environment and Land Case E036 of 2025) [2025] KEELC 7828 (KLR)
The bottom line
#The Kitale Environment and Land Court dismissed an attempt to kill a landlord's case as already decided, ruling the group failed to prove its prior Tribunal case covered the same issues.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The applicants failed to establish that the issues in the suit were directly and substantially determined in the BPRT proceedings; the application was dismissed
The court set out the statutory test in Section 7 of the Civil Procedure Act and the case law parameters: a former suit by a competent court, identical parties, subject matter and cause of action, heard and determined to finality. It compared the pleadings and orders in the BPRT case with the present claim for breach of lease and vacant possession and found no decree or order showing the present issues had been determined. The plaintiff's claim concerned breach of lease and possession, matters not shown to have been litigated to finality before the Tribunal.
Jurisdiction of the Business Premises and Rent Tribunal vis-à-vis the ELC
The ELC has original and appellate jurisdiction over land use, occupation and leases and supervisory powers over the BPRT; actions for damages for trespass fall outside the Tribunal
The court noted the Tribunal's jurisdiction derives from Sections 4(2), 7, 11 and 12 of Cap 301, while its own jurisdiction flows from Article 162(b) and Section 13 of the ELC Act. It observed that the applicant did not indicate any pending BPRT matter and that a claim for vacant possession and breach of lease concerns use and occupation of land, generally within the ELC's remit.
Whether striking out was an appropriate remedy
Striking out is draconian and exceptional; the application failed on the merits
Relying on DT Dobie v Machina, the court reiterated that striking out is reserved for suits beyond redemption. Having found res judicata not established on the evidence, the application dated 12/8/2025 lacked merit and was dismissed with costs.
Legal principles established
#- Striking out a suit is a draconian step to be exercised only in exceptional circumstances where no amendment can revive the suit
- The burden of establishing res judicata lies on the party invoking it, who must show competent former determination of the same issues between the same parties under the same title
Court orders
#- 1.The application dated 12/8/2025 is dismissed with costs
- 2.Orders accordingly
- Jurisdiction invoked
- Section 13 Environment and Land Court Act and Article 162(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nduati v Njogu & 2 others (Suing as Trustees of Nyayo Market Self-Help Group) (Environment and Land Case E036 of 2025) [2025] KEELC 7828 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Application dated 12/8/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7828/eng@2025-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.