Hinzano v Pink Properties Ltd & 9 others (Environment and Planning Civil Case E005 of 2025) [2026] KEELC 2817 (KLR)

The court set out the four elements of res judicata (final judgment on merit by a court of competent jurisdiction between identical parties, subject matter and cause of action) and held that the 2007 judicial review application only sought to compel the Land Registrars to issue a title. Judicial review does not deal with merits, and land ownership disputes cannot be decided in judicial review. The failure of the 2016 contempt application did not set aside the judgment but also did not determine ownership. The declarations sought in the present suit require an in-depth examination of evidence.

The applicant showed the plaintiff knew of the 2011 transfer and termed it fraudulent, which would ordinarily point to immediate suit. However, the plaintiff held a judicial review judgment enforceable through public officers, which excused his failure to file suit, and his enforcement attempts (mandamus succeeded, contempt failed in 2016) were bona fide. Given the constitutional emphasis on substantive justice (Article 159(2)(d)) and the confusion in the Chembe/Kibabamshe adjudication section, it would be harsh to declare the claim time barred without hearing evidence.

Relying on Article 50(1) and the Supreme Court's decision in John Florence Maritime Services, the court held that fair hearing principles (binding under Article 2(5) and (6)) entitle a party to adequate opportunity to present their case. The judicial review judgments affecting the suit land did not amount to a merits determination of the ownership dispute, and the plaintiff cannot be blamed alone for failure to secure compliance with the registration order without hearing his evidence.