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ELCPartially AllowedPetition and Notice of Motion dated 14th May 2025

Simandi Investments Limited & another v Macharia & 6 others (Environment and Land Petition E035 of 2025) [2026] KEELC 890 (KLR)

Environment and Land Court
19 February 2026
7,134 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court paused a constitutional petition over Nairobi Expressway land compensation because the same ownership dispute was already pending in an earlier case.

What this practically means

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Executive summary

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The Petitioners, Simandi Investments Limited and Simon Nyamanya, moved the Environment and Land Court by a Petition and Notice of Motion dated 14th May 2025, challenging the compulsory acquisition of L.R. No. 209/11293/1 and the payment of compensation of Kenya Shillings 1,937,772,479 to the 1st Respondent, Rosaline Njeri Macharia, in connection with the Nairobi Expressway Project. The 1st, 2nd and 3rd Respondents filed preliminary objections contending that the court lacked primary jurisdiction under Sections 133C and 133D of the Land Act and Section 16A of the Environment and Land Court Act, that the doctrine of exhaustion of statutory remedies had been breached, and that the suit offended Section 6 of the Civil Procedure Act as res sub judice given the pending ELC Case No. 1035 of 2016 between the same parties over the same land. The Petitioner countered that the objections raised factual issues, that the Tribunal had no jurisdiction over title disputes, and that no Commission decision existed to trigger the Tribunal's appellate jurisdiction. The court first declined to strike out the 1st Respondent's pleadings for want of a memorandum of appearance, holding the defect cured and invoking Article 159(2)(d). It then held the objections competent, applying Mukisa Biscuit and John Florence Maritime Services. On the merits, the court found the Petition caught by res sub judice since it rests on the same factual foundation as ELC No. 1035 of 2016 - ownership of the suit land and the validity of the compensation - and directed a stay of the Petition and Motion pending determination of that suit. However, the exhaustion limb failed, the court accepting that ownership disputes fall outside the Land Acquisition Tribunal's remit. The objections were found partly merited; the proceedings were stayed and each party ordered to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st Respondent's Preliminary Objection dated the 16th June, 2025 should be struck out
  2. 2.Whether the Preliminary Objections are competent
  3. 3.Whether the Preliminary Objections are merited

Key legal issues

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01

Whether the preliminary objections were competent, including the propriety of raising sub judice by preliminary objection

Holding

The objections were competent. Sub judice can be raised by preliminary objection; the exhaustion question is a pure point of law requiring no ascertainment of contested facts.

Reasoning

Applying Mukisa Biscuit and John Florence Maritime Services, the court held that sub judice need not be raised through a formal application since the pleadings in the earlier suit were annexed to the Petition, making the comparison a purely legal exercise. Similarly, exhaustion involves a legal evaluation of the forum invoked versus the forum prescribed by statute, not contested facts or discretion.

p. 10
02

Whether the Petition offends the doctrine of res sub judice under Section 6 of the Civil Procedure Act

Holding

Yes. Although couched as constitutional violations, the Petition is anchored on the same factual foundation as ELC No. 1035 of 2016 and is caught by res sub judice.

Reasoning

Applying the Supreme Court's test in KNCHR v Attorney General and the meaning of 'matter' from the Interim Independent Electoral Commission case, the court found that both proceedings call for determination of substantially identical questions: who holds a valid interest in L.R. No. 209/11293/1 and whether the compensation paid to the 1st Respondent was valid. Permitting parallel litigation risked conflicting findings.

p. 13
03

Whether the Petition offends the doctrine of exhaustion of statutory remedies under Sections 133C and 133D of the Land Act

Holding

No. The gravamen of the Petition is a contestation of ownership of the suit property and legality of compensation paid, which falls outside the Tribunal's remit.

Reasoning

The Tribunal's appellate jurisdiction under Section 133C requires a formal decision of the Commission as trigger, and per the Land Acquisition Tribunal in Esmai v Abdeel Enterprises, ownership and title disputes lie in other forums. The compensation dispute was inextricably intertwined with unresolved questions of title, so the exhaustion objection failed on this limb.

p. 14
04

Whether the 1st Respondent's pleadings should be struck out for want of a memorandum of appearance under Rule 15 of the Mutunga Rules

Holding

No. The omission was unprocedural but not fatal, having been cured by the subsequent filing of a notice of appointment.

Reasoning

Triple O.K. Advocates filed the notice of preliminary objection and submissions before filing a notice of appointment on 18th November 2025. The court invoked Article 159(2)(d) of the Constitution, which enjoins courts to administer justice without undue regard to procedural technicalities, to excuse the defect.

p. 9

Legal principles established

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  • A preliminary objection on sub judice may be raised by way of preliminary objection without a formal application, since the comparison of pleadings does not require ascertainment of contested facts
  • Where the substance of a constitutional petition is the same dispute pending in an earlier suit between the same parties, the petition is caught by res sub judice notwithstanding its constitutional form
  • The Land Acquisition Tribunal's jurisdiction under Section 133C of the Land Act is triggered by a formal and ascertainable decision of the National Land Commission and does not extend to disputes over ownership of title to land
  • Where an earlier suit is pending between the same parties over substantially the same dispute, the court is required to stay the later suit

Court orders

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  1. 1.The Petition and Motion dated 14th May, 2025 are hereby stayed pending the hearing and determination of ELC 1035 of 2016
  2. 2.The parties shall bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act

Relief refused

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Striking out of the Petition and Motion dated 14th May 2025 in limine as sought by the Respondents

The objections were found only partly merited; the court opted for a stay rather than striking out or dismissal

p. 14

Costs to the Respondents

The court ordered that each party bear their own costs

p. 14

Striking out of the 1st Respondent's pleadings for want of a memorandum of appearance

The omission was unprocedural but cured by the subsequent filing of a notice of appointment; the court invoked Article 159(2)(d)

p. 9

Costs

The parties shall bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a. The Petition and Motion dated 14th May, 2025 are hereby stayed pending the hearing and determination of ELC 1035 of 2016. b. The parties shall bear their own costs.
p. 14Final orders - stay of proceedings and costs
notwithstanding the constitutional form in which the present proceedings are cast, the substance of the dispute remains the same, and the Petition is caught by the doctrine of res sub judice within the meaning of Section 6 of the Civil Procedure Act.
p. 13Res sub judice - substance over form
The gravamen of the Petition is not merely dissatisfaction with the quantum or process of compensation per se, but rather, a contestation of ownership of the suit property and the legality of the compensation paid in respect thereof.
p. 14Exhaustion - limits of the Land Acquisition Tribunal's jurisdiction
Those are disputes that would lie in other forums.
p. 14Ownership disputes in compulsory acquisition fall outside the Tribunal
the court is persuaded to invoke Article 159(2)(d) of the Constitution, which enjoins courts to administer justice without undue regard to procedural technicalities.
p. 9Procedural technicalities - cured defect in filing of pleadings
It can be raised through pleadings as well as by way of preliminary objection.
p. 10Sub judice may be raised by preliminary objection

Issues in the judgment

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minor

The judgment inconsistently cites the grant number of the suit property, referring to it as both IR 65859 and IR 68559

minor

The 3rd Respondent's preliminary objection invokes both 'Part VIII and Part VIIIA' of the Land Act in counsel's submissions, while the grounds refer to Sections 133C and 133D; the Tribunal's establishment provisions are inconsistently referenced

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Simandi Investments Limited & another v Macharia & 6 others (Environment and Land Petition E035 of 2025) [2026] KEELC 890 (KLR)", Case Analysis (2026). Petition and Notice of Motion dated 14th May 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/890/eng@2026-02-19

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