Namunyak Self Help Group & 89 others v Mukwano Distributors Limited & 3 others; Attorney General & 4 others (Interested Parties) (Environment and Land Petition E001 of 2023) [2025] KEELC 8460 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the petition is res judicata
Not res judicata: the parties, subject matter and titles differ from the former suit
The former suit was brought by the 1st respondent only against Seuri Legusi Sanoye, who is not a party to this petition, so the parties are not the same. Although both parcels bear LR No. 26700/3, the grant numbers differ (I.R. No. 119946 in the former suit versus I.R. No. 119942 here), so the subject matter is different. The claims also differ: the former suit sought declaration and eviction, while this petition alleges threatened violations of constitutional rights. The court also questioned why the 1st respondent holds two sets of certificates of title over the same location.
Whether the petition is sub judice
Not sub judice despite the pending appeal in the former suit
Section 6 of the Civil Procedure Act bars trial where the matter in issue is pending in a previously instituted suit between the same parties litigating under the same title. Applying its res judicata findings, the court held the parties are not the same, the issues are not identical and the parties litigate under different titles, so the petition is not sub judice notwithstanding the appeal against the former suit's judgment.
Whether the petitioners satisfied the threshold for conservatory orders
Yes - a prima facie case was established and denial would render the petition nugatory
Applying the established principles (prima facie arguable case with likelihood of success; prejudice; constitutional values; futility; public interest), the court relied on photographs of occupancy, the title chain registered in 2009-2015, tribunal decisions of December 2008 allegedly awarding the land to the petitioners, and an unrebutted Ministry of Lands letter of 30/07/2020 calling the 1st respondent's certificate of title fake. The respondents did not oppose the motion or address this issue.
Legal principles established
#- Elements required before a matter is found res judicata
- Threshold for a conservatory order in a constitutional petition
- Res judicata applies to all categories of matters, including constitutional rights
Court orders
#- 1.The notice of motion dated 29/03/2023 is dismissed
- 2.A conservatory order restraining the respondents and their agents from interfering, entering, encroaching, alienating, building, trespassing, evicting the petitioners or transacting on LR No. 26700/3, Grant I.R No. 119942, pending hearing and determination of the petition
- 3.A conservatory order restraining the respondents and their agents from interfering with, demolishing, entering, alienating or otherwise dealing with churches, mosques, places of worship, schools and business premises erected on the suit property pending hearing and determination of the petition
- 4.A mention date to be given for directions on the hearing of the petition
- 5.Costs shall be in the cause
- Jurisdiction invoked
- Article 23 of the Constitution of Kenya 2010 (jurisdiction to redress threats to rights in the Bill of Rights, including conservatory orders)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Namunyak Self Help Group & 89 others v Mukwano Distributors Limited & 3 others; Attorney General & 4 others (Interested Parties) (Environment and Land Petition E001 of 2023) [2025] KEELC 8460 (KLR)", Case Analysis (2025). Petition dated 17/01/2023 (Environment and Land Court, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8460/eng@2025-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.