Chege & 3 others v Gitamaiyu Trading Company Limited & 7 others (Environment and Land Miscellaneous Case E029 of 2025) [2026] KEELC 2503 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a shareholder attempt to sue over company land via a constitutional petition, ruling that route is legally impossible.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a shareholder can be granted leave to institute a derivative suit under the Companies Act in the specialized form of a Constitutional Petition
- 2.Whether the derivative nature of a claim is compatible with the constitutional nature of a Petition
- 3.Whether the Court has jurisdiction to grant leave for a derivative suit within the framework of constitutional litigation
- 4.Whether the matter is res judicata having regard to prior determinations by the High Court, Court of Appeal and Supreme Court
Key legal issues
#Whether a derivative suit can be dressed as a Constitutional Petition
No. A derivative suit vindicates a private corporate interest while a constitutional petition vindicates public law standards; the two vehicles are mutually exclusive.
The Court held that a derivative claim under Section 238 of the Companies Act is a statutory exception to Foss v Harbottle vested in the company, whereas Article 22 enforcement concerns Bill of Rights violations. Allowing a derivative claim as a petition would bypass the statutory safeguards of Sections 239 and 241, including the good-faith assessment, and would amount to forum shopping under the guise of constitutionalism.
Jurisdiction of the ELC to entertain a derivative claim via a constitutional petition
The Court held that the procedural vehicle of a derivative suit is governed by the Companies Act, predominantly within the commercial jurisdiction of the High Court, and the combined approach lacked enabling legislation.
Relying on Owners of the Motor Vessel 'Lilian S', the Court accepted that jurisdiction is everything. Although the ELC has specialized mandate over land disputes and land is the subject matter, the derivative suit procedure falls under the Companies Act, which predominantly falls within the High Court's commercial jurisdiction; conflating the regimes is procedurally flawed.
Res judicata and limitation
The matter is res judicata, having been conclusively determined by the Supreme Court, and the claim is also statute-barred under Section 7 of the Limitation of Actions Act.
The subject matter (ownership of the 512 acres) had already been litigated through the High Court (HCC No. 4496 of 1994), the Court of Appeal (No. 84 of 2013) and the Supreme Court. Citing IEBC v Maina Kiai, res judicata is substantive law barring reopening of settled disputes. The 1979 transaction is also challenged 46 years later, and laches applies even to property-rights claims per Alice Chemutai Too.
Legal principles established
#- A derivative suit cannot be brought in the form of a constitutional petition because their purposes and procedural requirements are mutually exclusive
- Where a specific statutory remedy exists, a party should not circumvent that regime by invoking the general constitutional jurisdiction of the Court
Court orders
#- 1.The application dated 11/04/2025 is struck out for being a procedural nullity
- 2.A finding that the matter is res judicata, having been conclusively determined by the Supreme Court of Kenya, and that the Court lacks jurisdiction to re-litigate it under any procedural guise
- 3.Costs of the application awarded to the 3rd, 4th and 5th Respondents, to be borne by the Applicants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 40, 162(2)(b) and 165 of the Constitution of Kenya, 2010; Sections 238, 239 and 240 of the Companies Act, 2015
Relief refused
#Leave to file a derivative suit in the form of a Constitutional Petition on behalf of the 1st Respondent
A derivative suit and a constitutional petition are procedurally mutually exclusive; the application was a procedural nullity and the matter is res judicata
Costs
Costs of this Application are awarded to the 3rd, 4th and 5th Respondents, to be borne by the Applicants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The application dated 11/04/2025 is hereby struck out for being a procedural nullity, as the law does not permit the institution of a derivative suit in the form of a Constitutional Petition.
The Court finds that the matter is Res Judicata, having been conclusively determined by the Supreme Court of Kenya, and this Court lacks the jurisdiction to re-litigate the same under any procedural guise.
Costs of this Application are awarded to the 3rd, 4th and 5th Respondents, to be borne by the Applicants.
Ultimately, a derivative case cannot be a Constitutional Petition because their purposes and procedural requirements are mutually exclusive.
To allow a derivative suit to proceed as a Constitutional Petition would be to permit forum shopping under the guise of constitutionalism.
Issues in the judgment
#The judgment contains an apparently fabricated replying affidavit: the same Director, Stephen Njoroge, swore an affidavit on 29/09/2025 opposing the application and another on 8/10/2025 denying ever having sworn the first.
Order ii grants a res judicata finding although no prior decision of this Court was under appeal; the finding sits alongside the striking out of the application, which the judgment itself attributes to procedural nullity.
The judgment is dated 28 April 2026 while the application and submissions are dated 2025, an unusually long interval not explained in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chege & 3 others v Gitamaiyu Trading Company Limited & 7 others (Environment and Land Miscellaneous Case E029 of 2025) [2026] KEELC 2503 (KLR)", Case Analysis (2026). ELC Misc. Application E029 of 2025 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2503/eng@2026-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.