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)
The bottom line
#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
#Executive summary
#Key legal issues
#Locus standi of the Petitioner
The Petitioner, as Senator of Busia County, had locus standi in public interest
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.
Res judicata
The doctrine did not apply because the subordinate court judgment was delivered without pecuniary jurisdiction
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.
Sub judice
The doctrine did not apply for the same reason that the trial court lacked jurisdiction
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.
Constitutional avoidance
The doctrine barred the Petition; it was struck out
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.
Legal principles established
#- 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
#- 1.The Petition is struck out
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.