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ELCDismissedLand Case E410 of 2025· [2026] KEELC 2421 (KLR)

Makau & 2 others v Kirui & 5 others (Land Case E410 of 2025) [2026] KEELC 2421 (KLR)

Environment and Land Court
30 April 2026
4,973 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed the Mukuru Kwa Njenga Women Group's land suit because the same disputes had already been decided or were pending in other cases.

What this practically means

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Executive summary

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The Plaintiffs, Mukuru Kwa Njenga Women Group and two of its officials, moved the court by Notice of Motion dated 14th August 2025 seeking interim injunctive relief restraining the Defendants from interfering with L.R. No. 209/11036, on the basis of alleged long-standing occupation since about 2005 and contending that the Defendants' titles were fraudulently procured. The 1st Defendant, Thomas Kirui, replied that he holds a Grant over L.R. No. 209/13406, a subdivision that cancelled L.R. No. 209/11036, and that the Applicants are bound by the judgment in ELC No. 921 of 2016 (Thomas Kirui v Joshua Odhiambo Tollo), in which their alleged purchaser lost. The 2nd Defendant, Philip Kibet Tonui, added that the claim over L.R. No. 209/13407 is sub judice in ELCLC No. E078 of 2023, where he has already obtained interim injunctive orders against Willy Kimeu and others. The court framed two issues: the competence of the suit and motion, and the threshold for a temporary injunction. Relying on Section 7 of the Civil Procedure Act and the Bernard Mugo Ndegwa criteria, it held that the Applicants, as privies of Joshua Odhiambo Tollo, were barred by res judicata from relitigating the existence of L.R. No. 209/11036 and the validity of the 1st Respondent's title, and that the claim over L.R. 209/13407 was barred by sub judice under Section 6. Adding public entities and new parties could not reopen conclusively determined matters. The court therefore found the Plaint and the Motion incompetent and dismissed both with costs. The injunction application was not reached on the merits.

Key legal issues

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01

Whether the suit is barred by res judicata by reason of ELC No. 921 of 2016 (Thomas Kirui v Joshua Odhiambo Tollo)

Holding

Yes. Both suits concern the same subject matter (existence and validity of L.R. No. 209/11036), and Joshua Odhiambo Tollo litigated as purchaser deriving title from Mukuru Kwa Njenga Women Group, binding the Applicants as successors in title.

Reasoning

Applying the Bernard Mugo Ndegwa criteria, the court found the matters in issue identical, the parties effectively the same through privy, jurisdiction concurrent and the prior decision final. The earlier court definitively found L.R. No. 209/11036 did not exist and upheld the 1st Respondent's title to L.R. No. 209/13406. The Applicants never disavowed the transaction through which Tollo derived title nor joined him, and adding public entities could not reopen determined issues.

p. 9
02

Whether the claim over L.R. No. 209/13407 is barred by sub judice

Holding

Yes. ELCLC No. E078 of 2023, pending before the same court, directly and substantially covers occupation and entitlement to possession of L.R. No. 209/13407.

Reasoning

The 2nd Respondent had sued Willy Kimeu (the 2nd Applicant) and others in ELCLC No. E078 of 2023 over L.R. No. 209/13407, in which interim protective orders were subsisting and hearing had proceeded. The questions of occupation, interference and possession were directly and substantially in issue in that earlier-instituted suit, so allowing this suit would create the mischief Section 6 of the Civil Procedure Act guards against.

p. 10
03

Whether the Applicants met the threshold for a temporary injunction

Holding

The threshold question was not reached because the suit itself was incompetent.

Reasoning

The court framed competence as the threshold issue. Having found the Plaint barred by res judicata and sub judice, the Motion fell with the Plaint and was dismissed with costs, without reaching the Giella v Cassman Brown principles argued at length in submissions.

p. 10

Legal principles established

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  • Res judicata binds not only parties but also those claiming under them; a party cannot revive a derivative claim already conclusively determined
  • Once a court determines that a parcel does not exist, any derivative claim founded on that parcel is legally untenable
  • Adding new parties to a suit cannot be used to reopen matters already conclusively determined
  • Parallel proceedings over the same subject matter are barred by Section 6 of the Civil Procedure Act to avoid conflicting decisions

Court orders

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  1. 1.The Plaint and the Notice of Motion both dated 14th August, 2025 are declared incompetent and dismissed
  2. 2.Costs of the application/suit to the Defendants/Respondents

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 21, 22, 25(c), 27, 40, 47, 50(1), 159(2)(a)
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 6, 7
  • Civil Procedure RulesOrder 51 Rule 1; Order 40 Rules 1 & 2
  • Evidence ActSection 34(c)

Cases cited (15)

  • Thomas Kirui v Joshua Odhiambo Tollo
    [2022] eKLR (ELC No. 921 of 2016)
  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Bukenya & Others v Uganda
    [1972] EA 549
  • Suleiman vs Amboseli Resort Ltd
    [2004] 2 KLR 589
  • Wreck Motors Enterprises vs Commissioner of Lands & 3 Others
    [1997] eKLR
  • Mary Njoki Uno & Others vs Letshego Kenya Limited & Others
    Milimani ELC No. E299 of 2022
  • Torina Enterprises Limited vs Attorney General & 2 Others
    [2023] KESC 79 (KLR)
  • Syedna Mohamed Burhanuddin Saheb & Others vs Benja Properties Limited & 2 Others
    [2007] KEHC 292 (KLR)
  • Waterfront Holdings Limited vs Kandie & 2 Others
    [2023] KECA 1223 (KLR)
  • Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR
  • John Florence Maritime Services Limited & another vs Cabinet Secretary for Transport & Infrastructure & 3 others
    [2021] KESC 39 (KLR)
  • Henderson vs Henderson
    (1843) 67 ER 313
  • Bernard Mugo Ndegwa vs James Nderitu Githae & 2 others
    [2010] eKLR
Jurisdiction invoked
Articles 10, 21, 22, 25(c), 27, 40, 47, 50(1), 159(2)(a) of the Constitution; Sections 1A, 1B and 3A Civil Procedure Act; Order 51 Rule 1 and Order 40 Rules 1 & 2 Civil Procedure Rules

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, "Makau & 2 others v Kirui & 5 others (Land Case E410 of 2025) [2026] KEELC 2421 (KLR)", Case Analysis (2026). Land Case E410 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2421/eng@2026-04-30

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