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ELCStruck OutJudicial Review (Notice of Motion dated 24th February, 2025)· [2025] KEELC 8184 (KLR)

Nduvu & 2 others (Suing as the legal representatives of the Estate of Philip Nduvu Kivelenge - Deceased) v Deputy County Commissioner Kilungu Sub-County (As Delegate of the the Cabinet Secretary, Lands and Physical Planning) & 2 others; Kimuya & 4 others (Interested Parties) (Environment and Land Judicial Review Case E004 of 2024) [2025] KEELC 8184 (KLR)

Environment and Land Court
27 November 2025
1,722 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a land judicial review suit because a prior case over the same parcel had already decided the issues, binding even non-parties.

What this practically means

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Executive summary

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The Ex-parte Applicants filed a substantive Notice of Motion dated 24th February 2025 seeking judicial review orders of certiorari, mandamus and prohibition against the Respondents concerning land Parcel No. 3075 in Kilungu Sub-County. The 2nd and 3rd Interested Parties raised a preliminary objection dated 12th May 2025 on two grounds: that the application contravened Section 7 of the Civil Procedure Act (res judicata) and that the court was functus officio having determined a similar matter in JR E007 of 2022. Directions were issued for the objection to be disposed of by written submissions; only the Interested Parties filed submissions. The court identified the sole issue as whether the Applicants had demonstrated that its jurisdiction was barred by res judicata. Reviewing Section 7 of the Civil Procedure Act, the Black's Law Dictionary definition, and the authorities of IEBC v Maina Kiai, Uhuru Highway Development Ltd v Central Bank of Kenya and Henderson v Henderson, the court traced the litigation history: Parcel No. 3075 was the subject of Minister's Appeal No. 341 of 2019 (decision of 6th April 2022), and the Minister's decision was the subject of Makueni ELCJR No. E007 of 2022, dismissed by Murigi J on 8th November 2023. Although the Ex-parte Applicants were not parties to those proceedings - having been respondents in a distinct Minister's Appeal No. 348 of 2019 concerning Parcel No. 3074 - the court held that under Explanation (6) of Section 7 they were deemed persons litigating under the same title and in respect of similar interests and reliefs over Parcel No. 3075. The suit was accordingly dismissed with costs to the 2nd and 3rd Interested Parties.

Key legal issues

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01

Whether the suit is res judicata and therefore whether the court lacks jurisdiction

Holding

Yes - the suit is caught by res judicata under Explanation (6) of Section 7 of the Civil Procedure Act because the substantive questions over Parcel No. 3075 were fully and finally determined in Makueni ELCJR No. E007 of 2022.

Reasoning

The subject matter of the judicial review application is land Parcel No. 3075, which was the subject of Minister's Appeal No. 341 of 2019 and subsequent judicial review proceedings in Makueni ELCJR No. E007 of 2022, decided by Murigi J on 8th November 2023. Although the Ex-parte Applicants were not parties to those proceedings, under Explanation (6) of Section 7 persons interested in a private right litigated by others are deemed to claim under them. The Applicants are therefore deemed to have been litigating under the same title over the same property, and the suit is barred.

p. 5
02

Whether this court is functus officio in this matter

Holding

Not separately determined; the suit was dismissed on res judicata, rendering the functus officio ground unnecessary.

Reasoning

Although the preliminary objection raised two grounds - contravention of Section 7 of the Civil Procedure Act and functus officio arising from JR E007 of 2022 - the court framed only the res judicata issue for determination and disposed of the objection on that basis. No separate finding was made on functus officio.

p. 2

Legal principles established

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  • Res judicata is a jurisdictional bar to be addressed in limine; all elements of the bar under Section 7 of the Civil Procedure Act must be satisfied conjunctively.
  • The plea of res judicata extends, under Explanation (6) of Section 7, to persons who litigate under the same title and in respect of similar interests and reliefs over the suit property, even if they were not parties to the former suit.

Court orders

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  1. 1.The 2nd and 3rd Interested Parties' preliminary objection is upheld
  2. 2.The suit herein is dismissed with costs to the 2nd and 3rd Interested Parties on account of the doctrine of res judicata
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court; preliminary objection raised under Section 7 of the Civil Procedure Act, Cap 21

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, "Nduvu & 2 others (Suing as the legal representatives of the Estate of Philip Nduvu Kivelenge - Deceased) v Deputy County Commissioner Kilungu Sub-County (As Delegate of the the Cabinet Secretary, Lands and Physical Planning) & 2 others; Kimuya & 4 others (Interested Parties) (Environment and Land Judicial Review Case E004 of 2024) [2025] KEELC 8184 (KLR)", Case Analysis (2025). Judicial Review (Notice of Motion dated 24th February, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8184/eng@2025-11-27

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