Law Society of Kenya & 105 others v Cabinet Secretary Ministry of Lands, Public Works, Housing and Urban Development & 21 others (Environment and Land Petition E001 of 2026) [2026] KEELC 2828 (KLR)

The court noted that the 7th-12th Respondents had not filed a Replying Affidavit and thus had no opportunity to plead the facts alluded to in submissions. The court, citing Khaemba and Kimani cases, held that res judicata issues require probing of evidence and are improperly raised as a Preliminary Objection. The court further relied on Supreme Court authority that res judicata in constitutional petitions must be invoked sparingly, in the clearest of cases, and may be exempted where substantial injustice or special circumstances exist - an inquiry that was premature on the facts before it.

The court held that the Constitution dismantled strict locus standi rules and liberalised access to courts. Relying on Mumo Matemo, the court found that the hitherto stringent requirements have been buried in history. Given the governance concerns including capture of community land, abuse of public office and historical land injustices, the matters raised are of genuine public interest, not merely private interests, and the LSK's interest falls within Article 22 and 258.

The court found that the question of whether the original title ceased to exist upon subdivision and whether the constitutional claims survive is a contested factual issue requiring evidence. The court held that a constitutional claim does not die merely because the land has been transferred or subdivided. The issue was therefore improperly raised via a Preliminary Objection.

The court invoked Order 1 Rule 9 of the Civil Procedure Rules which provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties. The court further noted that the pleadings can be amended to include all necessary parties. It also found the issue improperly raised as a Preliminary Objection because determining who the affected registered owners are, whether they are parties, and whether the orders sought will impeach their titles requires evidence.