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ELCStruck OutBusia ELC Petition No. E002 of 2025· [2026] KEELC 1934 (KLR)

Okoiti v Ogallo & another (Sued as the Administrators of the Estate of Ogalu Orima Ogalo) & 6 others; Ethics & Anti-Corruption Commission & 5 others (Interested Parties) (Environment and Land Petition E002 of 2025) [2026] KEELC 1934 (KLR)

Environment and Land Court of Kenya
9 April 2026
8,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out Omtatah's petition, ruling that specific remedies like review must be used before rushing to constitutional court.

What this practically means

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Executive summary

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The Petitioner, Okiya Omtatah Okoiti, Senator for Busia, filed a constitutional petition in the Environment and Land Court at Busia challenging the judgment of Hon. P.A. Olengo (SPM) in Busia Chief Magistrates Court ELC Case No. 17 of 2019, in which the estate administrators (1st and 2nd Respondents) obtained eviction orders and mesne profits against the County Government of Busia over parcel South Teso/Osurette/964, allegedly purchased by the defunct Busia County Council in 1990 and developed as a public market. He sought declarations that the trial judgment was a nullity for want of pecuniary jurisdiction (suit value exceeding the Kshs.15 million limit) and for non-joinder of the National Land Commission, certiorari, mandamus, inhibition and injunctions against a purported 're-purchase' of the land. The Respondents countered that the suit property was private land, the Petitioner lacked standing, and the magistrate's decision could only be challenged by appeal or review. The court (Boaz N. Olao J) held that the Petition satisfied the Anarita Karimi Njeru precision threshold and that the Petitioner had locus standi as Senator. It found res judicata and sub judice inapplicable because the trial judgment was delivered by a court without pecuniary jurisdiction - the value having been pleaded at Kshs.35 million. However, invoking the doctrine of constitutional avoidance and the Karume principle, and noting a pending review application under Section 80 of the Civil Procedure Act in which the Petitioner himself could seek review as an aggrieved person, the court struck out the Petition without considering its merits, with no orders as to costs.

Key legal issues

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01

Locus standi of the Petitioner

Holding

The Petitioner, as Senator of Busia County, had locus standi in public interest

Reasoning

The court rejected the argument that the Petitioner was a busybody, holding that as Senator with an oversight mandate over county resources, he was well placed to allege violation of the Constitution. Articles 22(2)(c) and 258(2)(c) grant every person standing to defend the Constitution.

p. 33
02

Res judicata

Holding

The doctrine did not apply because the subordinate court judgment was delivered without pecuniary jurisdiction

Reasoning

Although the same subject matter was determined in Busia Magistrates Court ELC Case No. 17 of 2019, that court lacked pecuniary jurisdiction since the value of the suit property (pleaded at Kshs.35 million and valued at Kshs.79.2 million) exceeded the Kshs.15 million limit for a Senior Principal Magistrate. A judgment by a court without jurisdiction is a nullity and cannot found res judicata.

p. 36
03

Sub judice

Holding

The doctrine did not apply for the same reason that the trial court lacked jurisdiction

Reasoning

Though a review application remained pending in the subordinate court, the court held that the sub judice doctrine could not apply because the trial court lacked pecuniary jurisdiction over the dispute.

p. 39
04

Constitutional avoidance

Holding

The doctrine barred the Petition; it was struck out

Reasoning

Despite finding standing and that the Petition was not res judicata, the court held that a clear remedy existed - the pending review application under Section 80 of the Civil Procedure Act, in which the Petitioner could himself seek review as a person aggrieved. Where a specific procedure is prescribed it must be followed, so the constitutional petition was struck out without consideration of the merits.

p. 49

Legal principles established

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  • A judgment delivered by a court without jurisdiction cannot operate as res judicata
  • Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • Any person, though not a party to a suit, whose direct interest is affected by the judgment may apply for review under Section 80 of the Civil Procedure Act

Court orders

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  1. 1.The Petition is struck out
  2. 2.No orders as to costs
Jurisdiction invoked
Articles 162(2)(b), 22, 23, 40, 47, 50, 159, 165(3)(b) and (d), 163(6) and (7) and 258 of the Constitution; Section 13(1) of the Environment and Land Court Act, 2011

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, "Okoiti v Ogallo & another (Sued as the Administrators of the Estate of Ogalu Orima Ogalo) & 6 others; Ethics & Anti-Corruption Commission & 5 others (Interested Parties) (Environment and Land Petition E002 of 2025) [2026] KEELC 1934 (KLR)", Case Analysis (2026). Busia ELC Petition No. E002 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1934/eng@2026-04-09

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