Kariuki & another v Kenya National Highways Authority (KENHA) & another (Environment and Land Case E026 of 2025) (Environment and Land) [2026] KEELC 494 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land suit disguised as a civil claim because it bypassed the six-month judicial review deadline.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is barred by res judicata / constructive res judicata
Although the previous JR matter was struck out on a technicality and not on merit, constructive res judicata and public policy on finality of litigation bar the plaintiffs from re-dressing the same claim in different attire; filing a fresh suit the same day suggested a 'Plan B' to circumvent the ruling.
The court accepted the previous suit was not decided on merit, which ordinarily leaves a party free to file afresh. However, relying on Kenya Commercial Bank v Benjoh Amalgamated and State of UP v Nawab Hussain, it held that constructive res judicata covers issues so clearly part of the prior subject matter that re-litigating them is an abuse of process. Filing a Plaint on the same day as the ruling, instead of appealing under Order 43, showed a calculated attempt to circumvent the time bar.
Whether the suit is instituted contra-statute
Yes. Paragraphs 15 and 16 of the Plaint attacked the procedural impropriety and irrationality of an administrative decision, which are the hallmarks of judicial review; such challenges must be brought under Order 53 within six months.
The court examined paragraphs 15 and 16 of the Plaint, which complained of decisions made without a hearing or reasons and marred by irrationality and procedural impropriety. It found the declarations and injunctions sought were semantic disguises for certiorari and prohibition, and relying on Section 19 of the Civil Procedure Act as explained in Cyril J. Haroo, held that a suit commenced contrary to the prescribed mode is a nullity.
Whether the suit constitutes an abuse of court process
Yes. The suit was filed to circumvent the effects of the 8th May 2025 ruling and constituted an abuse of process warranting striking out under Order 2 Rule 15(1).
Applying Order 2 Rule 15(1), the court held the Plaint, even taking the pleaded facts as true, did not give rise to a legally recognised remedy because the proper vehicle was judicial review. The same-day refiling after the striking out of the JR application showed the claim was aimed at defeating finality of litigation, justifying striking out to protect the integrity of the judicial system.
Legal principles established
#- A suit filed in total disregard of the prescribed statutory mode of commencement is incompetent.
- Article 159(2)(d) on overriding technicalities is not a magic wand to save suits fundamentally flawed or designed to circumvent the law.
- Challenges to administrative actions by public bodies must be brought via Judicial Review under Order 53, not through a civil Plaint.
- Constructive res judicata bars re-litigation of issues that could have been raised in prior litigation even where the prior suit was struck out on a technicality.
Court orders
#- 1.The Plaint dated 8th May 2025 is struck out.
- 2.Costs of both the Application and the Suit shall be borne by the Plaintiffs.
- Jurisdiction invoked
- Order 2 rule 15 and Order 51 of the Civil Procedure Rules 2010; Section 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki & another v Kenya National Highways Authority (KENHA) & another (Environment and Land Case E026 of 2025) (Environment and Land) [2026] KEELC 494 (KLR)", Case Analysis (2026). Naivasha ELCLC No. E026/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/494/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.