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ELCStruck OutPetition dated 1st March 2023; Notice of Motion Application dated 24th June 2025· [2026] KEELC 2885 (KLR)

Mitambo & another v Ngari & 12 others (Petition E002 of 2023) [2026] KEELC 2885 (KLR)

Environment and Land Court
14 May 2026
2,217 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 struck out a land petition because re-framing a decades-old ownership dispute as a constitutional claim cannot restart finished litigation.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Embu (E.C Cherono, ELC Judge) on a Notice of Motion dated 24th June 2025 by the 2nd, 3rd, 9th and 10th Respondents seeking striking out of a Petition dated 1st March 2023. The Petition concerned land in the Mbeere/Mbita Adjudication Section, a dispute between the Nditi clan (Respondents) and the Ugweri clan (Petitioners), with the Petitioners also claiming purchases from the Ikandi clan. The Petitioners alleged violations of Articles 40, 47 and 50 of the Constitution in the adjudication and registration of the parcels. The court distilled four issues: res judicata, abuse of process through constitutional framing, the sufficiency of additional grounds, and whether the Petition should be struck out entirely. The court held that the matter was res judicata, having been litigated over four decades in Objection Cases Nos. 248/80, 186/80 and 211/80 (determined 1991), Minister's Appeal Case No. 49/1051/1997, Embu High Court Miscellaneous Application No. 72 of 2003 (which quashed the Ikandi clan's award), and Embu ELC Case No. 71A of 2014 (OS) (determined 2019, rectifying the register in favour of the Nditi clan). The court held that constitutional re-characterisation of a finally decided proprietary claim does not escape res judicata. Additional grounds supported striking out: the Petition was a nullity against the deceased 5th and 6th Respondents, Prayer No. 2 seeking a Minister's Appeal was incompetent as that jurisdiction was extinguished by the ELC Act 2011 and Land Registration Act 2012, there was material non-disclosure, and laches of over four decades applied. The Application was allowed in its entirety, the Petition struck out in its entirety, and costs awarded to the Applicants jointly and severally against the Petitioners.

Key legal issues

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01

Whether the Petition is res judicata

Holding

The Petition is res judicata; the same proprietary claims between the same parties or their privies were finally determined in the 1980 Objection Cases, the 1997 Minister's Appeal, the 2003 judicial review and the 2019 ELC suit

Reasoning

The test is whether the matter directly and substantially in issue is the same, not whether the cause of action is identically framed. Every constitutional grievance pleaded resolves to a complaint about ownership of the suit land. The Petitioners participated in or are privies to the prior proceedings spanning over forty years, and the constitutional framing is a device to re-enter claims already finally decided.

p. 4
02

Whether the constitutional framing is an abuse of court process

Holding

Yes; the Petition dresses a defeated proprietary claim in constitutional language under Articles 40, 47 and 50 to circumvent the finality of prior determinations

Reasoning

Citing the Supreme Court in Samuel Kamau Macharia, the court held a constitutional petition cannot be a vehicle to circumvent prior final determinations. The Article 47 complaint concerns the adjudication process reviewed and upheld in 2003; the Article 40 claim is the proprietary claim in constitutional dress; the Article 50 grievance is negated by the full hearing in ELC Case No. 71A of 2014.

p. 4
03

Whether the additional grounds independently justify striking out

Holding

Yes; the Petition is a nullity against deceased 5th and 6th Respondents, Prayer No. 2 is incompetent, material non-disclosure was established, and laches of over four decades compounds the injustice

Reasoning

The 5th and 6th Respondents died in 2011 and 2004; a suit against a deceased person is void ab initio. The Minister's appellate jurisdiction under the Land Adjudication Act was extinguished by the ELC Act 2011 and Land Registration Act 2012, making Prayer No. 2 incurably defective. Delay of over four decades with crystallised third-party rights means equity declines to assist the Petitioners.

p. 4
04

Whether the Petition should be struck out under Order 2 Rule 15

Holding

Yes; the threshold that the action is plainly and obviously unsustainable is met

Reasoning

The jurisdiction to strike out is exercised where it is plain and obvious the action is unsustainable. Here there is no conceivable basis for success: claims are extinguished by final determinations, the constitutional framing fails, and jurisdictional and procedural defects abound. Article 159(2)(d) and Article 48 do not require courts to countenance fundamentally defective proceedings.

p. 4

Legal principles established

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  • Constitutional re-characterisation of a finally decided proprietary dispute does not shield a petitioner from res judicata
  • A suit commenced against a deceased person is void ab initio
  • Access to justice does not license perpetual litigation of finally decided matters

Court orders

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  1. 1.The Notice of Motion Application dated 24th June 2025 is allowed in its entirety
  2. 2.The Petition dated 1st March 2023 is struck out in its entirety with costs to the Applicants
  3. 3.The Petition is struck out on the primary ground that it is res judicata to Objection Cases Nos. 248/80, 186/80, and 211/80, Minister's Appeal Case No. 49/1051/1997, Embu High Court Miscellaneous Application No. 72 of 2003, and Embu ELC Case No. 71A of 2014 (OS)
  4. 4.In the alternative, the Petition is struck out for abuse of the court process, the constitutional framing being an impermissible attempt to re-litigate finally decided claims
  5. 5.The Petition is additionally struck out as a nullity insofar as it was filed against the 5th and 6th Respondents who were deceased at the time of filing
  6. 6.Costs of the Application and of the Petition are awarded to the Applicants, to be borne jointly and severally by the Petitioners
  7. 7.The matter is marked as finally concluded

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 7
  • Civil Procedure Rules, 2010Order 2 Rule 15
  • Constitution of KenyaArticles 40, 47, 50, 48 and 159(2)(d)
  • Land Adjudication ActCap 284
  • Environment and Land Court Act2011
  • Land Registration Act2012

Cases cited (7)

  • Independent Electoral and Boundaries Commission & Another v Maina Kiai & 5 Others
    [2017] eKLR
  • Henderson v Henderson
    (1843) 3 Hare 100
  • Uhuru Highway Development Ltd v Central Bank of Kenya
    [1996] eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Macfoy v United Africa Co. Ltd
    [1961] 3 All ER 1169
  • Christine Wanjiku Kamau & Another v Paul Kamau Githiomi
    [2018] eKLR
  • Geeta Bharat Shah & 4 Others v Omar Said Mwatayari & Another
    [2009] KLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 7 of the Civil Procedure Act, Cap 21, and Order 2 Rule 15 of the Civil Procedure Rules, 2010

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, "Mitambo & another v Ngari & 12 others (Petition E002 of 2023) [2026] KEELC 2885 (KLR)", Case Analysis (2026). Petition dated 1st March 2023; Notice of Motion Application dated 24th June 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2885/eng@2026-05-14

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